Employee with lung cancer, fired after seeking further leave, gets claims reinstated

Granting a warehouse manager’s motion for reconsideration in a suit arising from her termination during an ongoing battle with lung cancer, a federal court in Kentucky concluded the court had committed clear error in dismissing her claims of FMLA interference and retaliation and ERISA interference, and her cause of action under the Kentucky Equal Opportunities Act (KEOA). The court concluded the employee had alleged more than sufficient facts to show that she suffered from a “disability” and a “serious health condition,” that the defendant was an FMLA-covered employer, and that the company fired her, at least in part, with the aim of interfering with her use of her benefits.

Lung cancer a disability.

In dismissing her state-law disability discrimination claim, the court concluded the employee failed to allege sufficient facts showing she had a “substantial disability” under the KEOA. It reasoned that she merely offered the “naked assertion,” without “factual enhancement,” that her lung cancer “constituted a substantial physical disability to her.” The case was transferred and, on reconsideration, the court found the employee had laid out more than ample facts to state a claim for relief: After surgery to remove a cancerous nodule from her lung, her lymph nodes, and the lower lobe of her lung, she could not stand, walk, drive, or stay awake for eight hours. The chemotherapy treatments that followed had left her very sick and bedridden most days. Upon returning to work, she had to use a golf cart to get around the warehouse, as she was unable to walk.
The court rejected the employer’s contention that the employee’s lung cancer was not a substantial disability but merely a series of “temporary physical challenges” that she had overcome. The employer insisted she had been working without incident for several months before her discharge (ostensibly for unethical conduct, but this contention ignored the fact that she required use of a golf cart, she still had doctor’s appointments every week and, the day before she was fired, she had told her boss that the oncologist had found another spot on her lung.) These allegations were sufficient to survive dismissal, and warranted reinstatement of her KEOA claim.

Lung cancer a serious health condition.

The employer similarly argued that the employee had not stated enough facts to assert that she suffered from a serious health condition, and the court, in agreement, had dismissed her FMLA interference claim. However, her detailed allegations that she had lung cancer, had surgery and chemotherapy, and continued to attend weekly doctor appointments were sufficient to establish this element of her FMLA claim.

FMLA-covered employer.

Moreover, the court now rejected the employer’s argument that she failed to establish that it was a covered employer. In fact, the employee offered a detailed history of her exercise of FMLA rights while employed at the company. She went on FMLA leave for surgery; while out on leave, she was called into work for a meeting, was in “constant contact” with her subordinate at the office, and was in regular contact with HR. She stated that she had expressed concerns to an HR manager about being fired for taking leave, and she was reminded by HR, at least weekly, how many days of available leave she had remaining. Several months after her surgery, she inquired into how many days of FMLA leave she had left, because her oncologist had ordered a CT scan, and she was informed she had more time available. On these alleged facts, it was clear error to dispose of this claim, the court held, and reinstated it.
The employee’s FMLA retaliatory discharge claim was revived as well. She was discharged the day after informing her boss that she had another spot on her lung, and about a week after inquiring into how much leave she still had available because “she wanted to be prepared for potentially having more surgery or other cancer treatment like she did before.”

ERISA claim.

The employee alleged facts to satisfy “each and every element” of an ERISA interference claim as well, including that she was a participant in an ERISA-covered health benefit plan, that the defendant was an ERISA-covered employer and that it shared in the costs of her plan, that she received health benefits from her employer, and substantial medical bills were incurred because of her condition. She also alleged that an HR manager had told her it was “very expensive for the company to have employees with cancer” and she pointed to the close temporal proximity between her illness and her discharge. According to her complaint, the employer engaged in prohibited conduct when it fired her, motivated in part by the medical expenses it had incurred and would continue to incur as a result of her illness, as well as its concern that its insurance premiums would rise. Dismissal of her ERISA interference claim was clear error, the court found, and reversal was required.

SOURCE: Strulson v. Chegg, Inc., (W.D. Ky.), No. 3:15-cv-00828, December 1, 2017.
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