Disability Discrimination and Age Discrimination: Cancer Survivor Who Returns to Work After Treatment and is Terminated Has Viable Disability and Age Discrimination Claims

Employees who experience serious medical conditions, undergo treatment and return to work after a leave of absence may be targets for termination when their employers subsequently have a “reduction in force.” In Buller v. PPG Industries, Inc., 2013 U.S. Dist. LEXIS 170358 (W. D. Pa. December 3, 2013)(J. Schwab), a cancer survivor whose employment was terminated filed a lawsuit against her former employer alleging that she was terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Plaintiff was employed for 21 years as an Administrative Assistant, first in the employer’s Corporate Environment, Health and Safety Department and then the Executive Compensation Department of Human Resources. Plaintiff’s duties included data entry, preparing agendas for executive meetings, and other secretarial duties. Throughout her career of employment the Plaintiff had positive job performance reviews.

In 2008, Plaintiff was diagnosed with breast cancer which required her to undergo a mastectomy and chemotherapy radiation treatments; she took off eight weeks of work for her treatment. Plaintiff’s cancer returned in early 2010. In late 2008, a Voluntary Severance Plan was available and Plaintiff’s supervisor suggested that Plaintiff’s position could be eliminated; however, Plaintiff’s position was not eliminated because of other factors. By 2009, Plaintiff’s duties were becoming increasingly automated and Plaintiff became concerned that her job was becoming irrelevant within the department and she requested additional responsibilities. The next year in July 2010, Plaintiff was informed that her position would be eliminated and informed that the decision was unrelated to her job performance and was strictly a business decision. It was suggested that Plaintiff apply for another position as a call service representative in the benefits department. While Plaintiff was interviewed it was ultimately determined that Plaintiff would not be offered the position which was offered to an outside candidate not previously employed by the employer and Plaintiff’s last day of employment was August 31, 2010, at which time she was 57 years of age. Ten months later, plaintiff was offered an “HR Direct Specialist” position which she rejected.

The Court denied the Defendant employer’s Motion for Summary Judgment, finding the Plaintiff employee presented sufficient evidence that her supervisors were aware of her cancer diagnosis; she did have sufficient work within her department; she was recommended for termination after her cancer diagnosis; her cancer was discussed when she was terminated; other individuals were not terminated during the alleged “reduction in force”; Plaintiff’s job duties were transferred to younger workers who were not disabled; she was not hired for the HR Shared Services Center Representative position; the employer’s policy to only consider internal candidates for an open position until the internal employee candidates were rejected was not followed; and other supervisors at the employer may have become aware of her cancer diagnosis. Given these facts that court found that the employee had a sufficient basis to proceed to trial with her disability and age discrimination claims.

For more information on the Americans with Disabilities Act, Disability Discrimination, age discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126511.html, http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Filed under Age Discrimination, Americans with Disabilities Act - Disability Discrimination, FMLA

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