Termination - Cancer issue

martman99

46 y/o female employee with cancer has been terminated due to a negativity problem and general disruptedness of the office. She has been employed for about 6 years. Severance will include 2 months pay ($5,040) and 6 months Employer paid medical and dental premiums (COBRA will be offered August1, 2004). Always accomodated for doctors' appts and chemo. Thoughts on a potential ADA? Never has requested accomodation other than the ability to take time off for appts.

Thanks for any input

Marty

Rockie

Make sure your documentation is impecable as the first thing an attorney is going to look at it the timing of the disciplinaries and try to make it look like a set up or a retaliation case. Hopefully, this has been an ongoing problem with her and not just since the diagnosis.

It helps your case that you did make the accomodations that she requested, but tread very carefully here.

martman99

Retaliation? Are you suggesting a retaliation based upon her medical condition?

Don D

I think the suggestion is, that's what her attorney will attempt to show. That's the way cases are won.

I haven't reviewed her file, but it sound to me like the old 'attitude' allegations. Her file, as Rockie said, had better contain a real solid paper trail of disciplinary infractions and attempts to correct them.

Rockie

Not on your part! That's what the plaintiff's attorney will attempt to impart. Retaliation claims are one of the fastest growing in the employment law area. Sorry for the misunderstanding!

Rockie

Don D

If not on the employer's part, then who's?

KathiHR

Does your company always pay severance & 6 months of premiums to an employee terminated for performance issues?

Just for a moment, I'll play the devil's advocate. I think a good lawyer could be persuasive enough to use your generosity against you...that you really didn't terminate with good cause & the severance/premiums are to soothe a guilty conscience & steer her away from a lawyer. He could even argue for mixed motives...yes, she was negative, but do you terminate all negative employees with severance & insurance? If you really terminated for good cause, then why the severance, why the insurance premiums... why not just a termination meeting, a chance to pack her things, & the door, like most terminated employees get? Or skip the good lawyer & think EEOC. Can you document that all employees that were negative & generally disruptive got terminated, along with severance & insurance premiums?

We recently terminated a manager for good cause, & she had some ADA issues. We purposely avoided anything that appeared "sympathetic" & "apologetic" for letting her go. She asked for a severance package since she was sick. We declined. She was terminated in the same way anyone else would be. We're now defending our decision, which we're totally confident in, with the DOL & EEOC. But I can tell you that giving her any special treatment would have introduced the possibility of mixed motives & hurt us, not helped us.

Depending on how you've treated other terminated employees, you could have some ADA issues.

Kathi

martman99

Thanks for info Kathi. You make some good points. However, a release and severance agreement was entered and my only concern was if the cancer could turn into an ADA. Employment Law is not my forte, but I am a lawyer and believe the disparity in treatment in this case would play in our favor despite a "possible" inference of a pre-textual motive for offering a generous severance.

Signed

A Good Lawyer

:-)

Marty

Thanks again