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Mom Who Took Leave to Care for Sick Child Loses ADA Association Discrimination Case

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  • Mom Who Took Leave to Care for Sick Child Loses ADA Association Discrimination Case

    Daily Labor Report
    Number: 152
    August 07, 2002Disabilities
    Mom Who Took Leave to Care for Sick Child Loses ADA Association Discrimination Case

    A paralegal who was fired after requesting an indefinite leave of absence to care for her sick daughter failed to show that her employer, a Jacksonville, Fla., law firm, engaged in illegal "association discrimination" under the Americans with Disabilities Act, the U.S. District Court for the Middle District of Florida ruled July 29 (Pittman v. Moseley, Warren, Prichard & Parrish, M.D.
    Fla., No. 3:01-cv-279-J-21TJC, 7/29/02).

    Granting summary judgment to Moseley, Warren, Prichard & Parrish on the ADA claim by Veleria Pittman, Judge Ralph W. Nimmons found that Pittman was not able to establish that she could attend work regularly, a qualification for her job. In addition, the court said, the employer had no duty to accommodate her because she was not disabled.

    Furthermore, the court said, there was no evidence that the decision to fire Pittman was based on an unfounded belief that she would have to miss work to care for her daughter. Instead, the record shows that she was fired for her previous attendance level and her expressly stated need for additional leave, the court said.

    Attorneys Sympathetic to Family's Needs.

    Pittman was hired as a full-time paralegal in March 1999, according to the court. While interviewing for the position, she told the firm that her 6-year-old daughter was autistic, and as a result, she would need to take time off to take her to various appointments or if she became ill. Robert Warren and Kimberly Israel, the attorneys who interviewed her, expressed a willingness to work with her, the court recounted.

    The court said it was undisputed that Warren and Israel were sympathetic to Pittman's and her daughter's situation. The law firm did not deny any of Pittman's requests to take time off to care for her daughter up until the time she was terminated, the court said, and it allowed her to make up missed time by working nights and weekends.

    By August 1999, Pittman had exhausted her sick leave for all of 1999. She was allowed to use eight hours of sick leave from 2000 during 1999. In December 1999, Pittman's daughter's condition deteriorated, and she began having seizures. By Feb. 15, 2000, the court added, Pittman had used all of her sick leave for 2000.

    By April or May of 2000, the daughter's condition had deteriorated even further. At this point, the employer allowed Pittman to modify her schedule so that she worked 10-hour days Monday through Thursday and had Fridays off for medical appointments. In May, she was allowed to reduce her schedule to four eight-hour days.

    On June 8, 2000, Pittman requested an indefinite leave of absence after her daughter began having respiratory problems and had to be flown to a hospital in Miami. Pittman offered to take a laptop with her to Miami to perform work while at the hospital with her daughter.

    On the same day, she was fired. At that point, the court said, she had used 29.27 hours of sick leave, which had not yet been accrued.

    Establishing Association Discrimination.

    To establish a case of association discrimination, the court said, a plaintiff must show that she suffered an adverse job action, that she was qualified for the job at the time of the adverse action, that the employer knew that a member of her family was disabled, and that the adverse employment action occurred under circumstances suggesting that the relative's disability was a determining factor in the employer's decision.

    The employer asserted that Pittman failed to show that she was qualified for the job or that the adverse job action occurred under circumstances creating a reasonable inference of discrimination based on her daughter's disability.

    Under the act, the court said, a qualified individual is someone who can perform the essential functions of his or her job with or without a reasonable accommodation.

    "An individual is not qualified for his job if he is unable to meet the attendance requirements of the job," the court said. It added that a "non-disabled employee is not entitled to a reasonable accommodation because of his 'association' with a disabled person."

    Although the prohibition of "association discrimination" is intended to prevent--among other things--an employer from declining to hire a qualified individual because the employer thinks the applicant would have to miss or leave work to care for the disabled person, "an employer's decision to terminate an employee based on an established record of absences to care for a disabled person and a clear indication that additional time off is needed for the same purpose does not violate the association provision of the ADA," the court said.

    Pittman maintained that the employer rejected her request for a reasonable accommodation--bringing the laptop to the hospital--without adequately assessing the option. Rejecting the argument, the court pointed out that the employer did not have a duty to reasonably accommodate a nondisabled employee. The employer's willingness to allow her to work from a laptop in the past did not create a legal duty to do so in the future, the court added.

    No Inference of Bias, Court Says.

    Even if she were qualified for her job under the ADA, Pittman did not show that there was a reasonable inference that her firing was prompted by her daughter's disability, the court said.

    "Plaintiff failed to provide any evidence that Defendant's decision to terminate her was based on an unfounded belief that she would have to miss work to care for her daughter, " the court said.

    "In light of Plaintiff's previous attendance and her request for an indefinite leave of absence, Defendant's decision to terminate Plaintiff does not appear to be based on an unfounded belief that she would have to miss work," the court concluded.

    Pittman argued that the employer did not hire a replacement until one month after she was fired. This point does not create a reasonable inference of discrimination, the court said, pointing out that Warren and Israel generally were sympathetic and accommodating. "Absent any other evidence of discrimination, a reasonable jury could not draw the inference from the time required to hire Plaintiff's replacement that Plaintiff's daughter's disability was a determining factor in Defendant's decision to terminate [her]," the court said.

    Matthew Farmer of Farmer & Fitzgerald in Tampa represented Pittman. Peter Reed Corbin and Kimberly A. Cannon of Ford & Harrison in Jacksonville represented the law firm.

    By Victoria Roberts

  • #2

    Does this article reference whether this woman attempted to invoke the protections under the Family Leave Act? ADA seemed to be a stretch give the facts, but it seems that the Family Leave Act would have been available.
    What we do in life echoes in eternity. Maximus - Gladiator


    • #3
      Re: Mom who took leave!

      So much for competent legal representaion......looks to me like the lawyer's would have know which to file it under. [img]/forum/images/smilies/confused.gif[/img]


      • #4
        Family Leave Act

        As I remember, the family leave act is only in force for companies with 50 or more employees. Unless the law firm she worked for was quite large, it is unlikely that she qualified for this program.

        The SCI-Nurses are advanced practice nurses specializing in SCI/D care. They are available to answer questions, provide education, and make suggestions which you should always discuss with your physician/primary health care provider before implementing. Medical diagnosis is not provided, nor do the SCI-Nurses provide nursing or medical care through their responses on the CareCure forums.


        • #5
          I might be wrong (usually am) but it sounded to me like she wanted to get paid for taking off (i.e. all the borrowing of future sick days, etc.). Under the family leave act, your employer does not have to pay you for the time you take off.


          • #6
            SCI Nurse, you're correct the FLA only applies to fifty or more my world an office with 50 attorneys is medium sized...combined with legal assistants, clerks and paralegals...doesn't take much to double that number...but I stand corrected...if this was a small shop...the FLA would not apply.

            As to compensation without accrued sick leave or annual law in the land requires a company to accomodate such a request. Neither the ADA nor the FLA would have gotten out of the starting blocks with such a provision.
            What we do in life echoes in eternity. Maximus - Gladiator