| DISCUSSION OF
INDIVIDUAL CASES: FEDERAL EMPLOYEES BE CAREFUL TO CLAIM COMPENSATORY DAMAGES EARLY--Compensatory Damages Are Available--failure to petition for compensatory damages for emotional injuries at the original federal agency led to loss of case even though racial harassment was found but the claimant refused the full offer of settlement without compensatory damages. When he asked for them in court the case was dismissed due to his failure to have requested them originally and then refusing the offer of settlement, but the court held that compensatory damages are available for federal employees under Title VII. Fitzgerald v. Secretary of Veterans Affairs, CA5, No. 96-30731, 1997.
ADA DISABILITIES? MONOCULAR VISION, HIV POSITIVE ARE; CARPAL
TUNNEL SYNDROME, 25 POUND WEIGHT LIMIT, PACEMAKER ARE NOT--
courts continued to give confusing and overly-restrictive
definitions of disabilities that should be covered by the
ADA. Unfortunately it seems this will continue until the
Supreme Court rules An airline pilot could not be refused
hiring due to vision limited to one eye when FAA qualified
him to fly. Airline also claimed preemption by Airline Deregulation
Act, the court found no exceptions in ADA so parallel state
law not preempted. Aloha Island Air Inc.CA9, No. 95-16656,
10/14/97. The majority view of courts now is that HIV positive
status is a disability, or at least in issue for the jury
as to whether there is substantial impairment, Fernandez
V. Prudential Insurance Co., CD Fla, No. 96-1316-CIV-17C,
9/23/97, but compare Runenbaum v. NationsBank of Maryland,
7 AD Cases 216, 1997 [it may also be a "perceived disability"
in some cases]; Amazingly, the majority of courts so far
say carpal tunnel syndrome is not an ADA disability even
though it's extremely painful and that can be often accommodated
easily by computer voice dictation at a very low cost. Helfter
V. United Paarcel Service, Inc., 115 F.3d 613, (8th Cir.
1997); and lifting restrictions of no continuous lifting
over 25 pounds due to cervical injury was not a disability
for a nurse because she was not "substantially limited"
from many other nursing jobs, Thompson V. Holy Family Hospital,
No. 96-35336, (9th Cir. 1997); and having a pacemaker does
not "qualify" one as disabled since there is no limitation
in any major life activity so the claimant did not require
a reasonable accommodation. The plaintiff had worked as
an expediter which required lifting and other strenuous
activity. When his doctor ordered that he had to avoid such
duties, plaintiff asked for a reasonable accommodation but
instead was fired. Foreman v. Babcock & Wilcox Co., NO 96-60510
5th Cir.1997)
DIABETIC NURSE REQUIRED TO BE GIVEN REASONABLE ACCOMMODATION--jury allowed to, and did, decide that a request to be relieved of some of her call days after consecutive work nights or get substitute nurses was a reasonable accommodation after it was denied by the hospital. This court found diabetes to be a disability under the ADA, although some other courts have ruled otherwise. McCall v. Myrtle Beach Hospital, No. 560015 (4th Circuit 1997). ADA REQUIRED AT LEAST SOME ACCOMMODATION FOR DEAF WORKER-- deaf shipping clerk requested an interpreter when the new job instructions were given in a video. Wal-Mart, the employer, refused the request and transferred employee to a janitor job again without instructions he could understand or an interpreter so he refused the transfer and was fired. The court and jury found a failure to provide reasonable accommodation and awarded $78,500.EEOC v. Wal-Mart Stores Inc., No. CIV-95-1200 RLP (DC NM 10/10/97). FMLA BEATS "NO-FAULT" ATTENDANCE POLICY AND ALLOWS DIRECT SUIT AGAINST SUPERVISORS-- an employee with an ulcer fired for excessive absences won a review of her case on the basis that the employer had to provide FMLA leave since the ulcer was a "serious health condition" under Department of Labor Regulations.Thorson v. Gemini Inc., No. 96-3240 (8th Cir. 1997); and another court ruled that an employee could sue his supervisor who demanded that he come to work shortly after surgery and made him use vacation instead of FMLA leave. Beyer v.Elkay Manufacturing Co., No. 97-C-50067 (DC NIll 1997). SOCIAL SECURITY DISABILITY FILING BARS AGE CLAIM-- care must be taken under both the ADA and age laws that the claimant does not also file for disability benefits. Under social security, the claimant had stated under penalty of perjury that he was unable to work because of [his] disabling condition" and this precluded him from claiming age discrimination since he had sworn he was no longer able to work. Simon V. Safe Light Glass Corp., 75 FEP cases 147, (CA2 10/14/97).
LONG TERM DISABILITY BENEFITS-- through an
employer plan can discriminate between mental
health and physical disabilities, the Sixth
Circuit Court of Appeals decided. The plaintiff
suffered from depression for which she qualified
for her employer's long term disability payments.
However she discovered she was only covered for
24 months, and not until age 65 as she would have
been with a physical disability. Three other
Circuit Courts have ruled the same way, but the
First Circuit has found a violation under similar
facts so this issue should soon get to the
Supreme Court. (Parker v. Metropolitan Life Ins.
Co., CA 6, NO 95-5269 8/1/97.
ASSIGNMENT TO PERMANENT LIGHT DUTY JOBS REQUIRED.Since two permanent light duty positions were
available in the fire alarm and fire prevention
bureaus of a fire department in Mount Vernon, New
York, the Court of Appeals held that such
assignment was a reasonable accommodation for a
partially recovered paraplegic. The plaintiff was
injured in an off-duty accident, but wanted to
return to work with leg braces and part time use
of a wheel chair. Since other injured individuals
had been assigned to these jobs and had never
been called to fight fires, the claimed undue
hardship of having the worker available to fight
fires was not valid. (Stone v. Mount Vernon, CA
2, No 96-7976). INCREASE IN AGE AWARD REQUIRED ON APPEAL-- 54 year old title clerk at a
car dealership was the repeated subject of ageist
comments by her supervisor such as she was
"getting a fat ass", she was "an
old fat bag", and asked her if she was
having "any hot flashes today."
Plaintiff became so upset that she quit and
charged age discrimination harassment and
constructive discharge. The District Court only
awarded $10,513 in damages and no other relief.
The Court of Appeals remanded the case with
directions to provide full back pay benefits, and
to review the omission of injunctive relief which
the EEOC urged should require the dealership to
provide training and a neutral reference for the
plaintiff. (EEOC v. Massey Yardley Chrysler
Plymouth, Inc, CA 11 No 96-4129 7/24/97). AFRICAN-AMERICAN POLICE OFFICER KEEPS HIS DREADLOCKS--An African-American police officer who wore his hair
in short dreadlocks to follow his religious and
cultural beliefs was ordered back to work with
full pay pending final judgment in the case. The
employer had demanded that he cut his hair or
cease working for the police department. He
refused and proceeded successfully with this
suit. (Robinson v. District of Columbia, DC DC,
No 97-787).
Footnotes above: 1/ DeGaetano v. Smith Barney, DC SNY, No. 95-Civ-1613,11/5/97; 2/ Cole v. Burns International Security Services, 72 FEP cases 1775 (DC Cir. 1997); 3/ Dugan v. State of Oregon, No. 95-6250-HO (DC Ore 11/12/97); 4/ Greenbaum v. Svenska Handelsbanken, 95 CIV.3850 (DCSNY, 1997); 5/ Ryder v. Westinghouse Electric Corp, No 96-3414 ( CA 3 1997); 6/ EEOC v. Wal-Mart Stores, Civ 94-1-76LH, (DC NM 10/31/97); 7/ In re EEOC v. Denny's, EEOC No. 350-96-1729 (10/9/97).
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