Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Firing’

Cancer Victim Fired For Disclosing Brain Tumor Has Claim For Disability Discrimination

Monday, June 13th, 2011

ellen simonA U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

The “F” Word

Monday, April 18th, 2011

Image: Bob RosnerWhen I started networking after I was fired, yes, I actually follow the advice that I’ve been writing about for the last sixteen years, I came across an interesting issue. Do you use the “F” word with potential employers? You know, fired.

My initial tendency was to avoid it. I moved on, I was let go. Things didn’t work out. You know all these euphemisms. But I decided as part of the “Fired in real time” project, I would describe myself as being fired and see what would happen.

I got a call from a possible vendor. I needed to explain what happened, so I described myself as being fired. He seemed to take it in stride.

It was only days later, when a mutual friend called, that I learned that the vendor had called him to ask about me. Or, more specifically, to find out if I was “legit.”

Okay, it might not be a scarlet letter on my forehead, but it definitely is a stain on your credibility to be fired.

I did it a few more times, with a colleague, with the person sitting next to me at Rotary and with  someone who worked in a store where I was shopping. Okay, I’m not the type of guy who usually tells his life story to retail clerks, that’s the job of my seven year old daughter, but when the clerk asked why I was shopping in the middle of the day, I thought I’d drop the “F” word on her to see what would happen.

I’d like to say that the clerk immediately steered me away from the wool suits to the polyester section of the store. But I don’t even think that polyester is part of the Nordstrom vocabulary.

What I did observe was a variety of reactions, roreheads crinkle, eyes bear down on you harder and you can see someone’s brain kick into a higher gear. In short, people just check you out closer than usual. You’re not quite guilty, but not exactly innocent either. I think in Catholicism they call it “limbo.” In between.

At this point I have to tell you, I’ve all but dropped the “F” word. It’s just got too much baggage attached.

Ironically one person told me that I was brave to say it. She even told me a long story of the time that she was fired from a job. But then she said to me that I shouldn’t ever tell anyone that I was fired ever again. It’s just not something that people need to hear.

One of my favorite quotes is from Groucho Marx, “I wouldn’t ever want to belong to any club that would have me as a member.” Kind of reminds me about telling someone that you’re fired. It’s a club with millions of members, but no one wants any part of it.

My a-ha: Honesty is the best policy, except when you’re fired.

Next installment: Getting back in the game


About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.org. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected]

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