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February 2010 Archives

Court Finds Employer May Have Violated FMLA By Laying Off Employee Pursuant to a Reduction In Force

Court Finds Employer May Have Violated FMLA By Laying Off Employee Pursuant to a Reduction In Force In Cutcher v. Kmart Corp, a federal court of appeals recently found in favor of an employee who had been terminated in a “reduction in force” (RIF) after returning from FMLA leave. The employee alleged that by terminating her employment upon her return from leave, the employer interfered with her FMLA rights. She also alleged that her employer retaliated against her for exercising her FMLA rights by terminating her employment.  In deciding that a jury could reasonably find in favor of the employee, the court of appeals paid particular attention to the fact that the employer had prepared an evaluation in preparation of the RIF which varied substantially from an actual performance review of that employee done just twenty days prior. The employer acknowledged that the employee’s performance had not changed in that short time period.  Other factors playing a role in the court’s decision included the fact that the leave of absence was referenced in the RIF evaluation, and the fact that the employer had no documented evidence of prior concern with regard to the employee’s job performance. 

While this case does not stand for the proposition that an employee who takes FMLA leave near or at the time of a RIF cannot be laid off pursuant to that RIF, it should serve as a cautionary tale for employers who are conducting a RIF. FMLA leave should not be a factor taken into account when an employer is conducting a RIF.  Like many other cases, Cutcher v. Kmart Corp. should raise a red flag for any employee who finds himself or herself being treated adversely (or out of a job) upon returning from FMLA leave.

7th Circuit Dismisses ADA Psoriasis Claim

In Turner v. The Saloon et al., the Seventh Circuit Court of Appeals affirmed the district court's determination that Psoriasis did not meet the "substantially limiting" element of an ADA protected disability in that case. The Plaintiff argued that his psoriasis substantially limited his ability to walk. He admitted under oath, however, that at worst, his psoriasis periodically causes "severe pain causing him to walk with his legs more astride, appearing as a limp." When it comes to walking, the Seventh Circuit had previously determined that walking with difficulty is not a significant restriction on walking. Squibb v. Mem'l Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007). It has also held that  an employee is not disabled when he admitted that he could walk "distances of less than a mile 'consistently,' [and] that a mile walk 'wouldn't be any problem as long as I'm paying attention to what I'm doing.' " Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000). Although psoriasis is a bona fide and often serious medical condition, arguments that it limits one's ability to walk and therefore qualifies as an ADA protected disability, absent a particularly severe or unusual case, will be hard-pressed to succeed.  This doesn't, however, mean that psoriasis will never qualify as a disability, provided it substantially limits walking or other life activities.

Vocational Hypotheticals during a Social Security hearing must only account for limitationsaccepted as c redible

The claimant filed an application for Social Security benefits alleging numerous physical and mental impairments including depression and anxiety disorders. During a remanded hearing to reconsider her disability claim, the Administrative Law Judge posed a hypothetical to the vocational expert for a person who was limited to "brief and superficial contact with others in the work place" and no high production goals. Seamon v. Astrue , Slip Copy 2010 WL 323515 (C.A.7 (Wis.)). The ALJ's decision was only partially favorable as he found the claimant disabled because of her age.

Ninth Circuit Finds MetLife Abused its Discretion in Terminating Long-Term Disability Benefits

Last week, long-term disability benefits claimant "Kelly" won her case after a trial against MetLife. Kelly's claim was supported by her physician, Dr. Michael Flaningam, who diagnosed Kelly as having fibromyalgia, with a secondary diagnosis of fatigue.

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