Sunday, July 31, 2011

Termination Over Concern of Cancer Leads to Employee Verdict

The matter of Joan Eshelman v. Agere Systems, Inc. concerned allegations of Employment Disability Discrimination, Age Discrimination (ADEA) and discrimination under the Pennsylvania Human Relations.
In the fall of 2001, plaintiff, Joan Eshelman, 57, a technical support supervisor, was working for Agere Systems Inc. at its office in Reading. She supervised/managed 16 employees on three shifts covering 24 hours and had worked for Agere and its predecessors for more than 20 years.

Agere, a microelectronics maker, was restructuring its Pennsylvania manufacturing operations, including reducing manpower in the Reading office where Plaintiff worked.

Managers were instructed to evaluate and rank employees based on five skills -- flexibility, communication, results focus, decision making and team work. Anyone with an evaluation score of 2.5 or greater would be at risk for termination.  Eshelman's manager, Joseph DiSandro, initially gave her a near-perfect score of 1.4. She had been promoted earlier in the year, had earned a significant salary increase, and earned the highest possible rating on her performance review.

Her accomplishments came despite the fact that, three years earlier in 1998, Eshelman was diagnosed with breast cancer. It went into remission but only after aggressive treatment with radiation and chemotherapy. She missed more than six months of work. When she returned in March 1999, she had begun experiencing cognitive dysfunction, a common condition often referred to as "chemo brain." It affected her short-term memory, and her mind would go blank in strange places or when she was doing things out of step with routine.  Her bosses were aware of the problem, and she spoke to them about it again when she came back to work in March 1999.

Two days after DiSandro gave her a score of 1.4, his bosses, Steven Levanti and David Baily, decided to mark Eshelman as at risk for termination. DiSandro felt so strongly about Eshelman, though, that he requested that she be given the option to be retained. Levanti suggested that one of two of her colleagues be fired. One of them had technical skills Eshelman did not, but the other, Kelly Harper, did not score as well on her evaluations and had duties that DiSandro thought Eshelman could handle. After telling Baily about this, DiSandro was told to ask Eshelman about her willingness to travel.

DiSandro asked Eshelman if she would work part-time at Agere's locations in Breinigsville or Allentown. She at first said Breinigsville would be fine but that Allentown would be difficult, but she later wrote DiSandro an email indicating that Allentown was also acceptable. DiSandro revised Eshelman's score and put Harper at risk for termination.

But Baily and Levanti then told DiSandro to ask if she would work fulltime at Breinigsville. In a memo, Eshelman said she could do it but outlined some of her concerns, including the hardship of the longer commute (because of her cognitive dysfunction) and the fact that she could not move because her husband, a Berks County judge, had to maintain residency in his county.  The next day, Baily and Levanti put her at risk. On Nov. 1, she was fired.

Eshelman sued Agere Systems for age and disability discrimination under the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act.

Her attorney argued that Agere's decision to fire Eshelman hinged on its perception that she was unwilling or unable to to travel to Breinigsville or Allentown on a full-time basis. Levanti and Baily knew that Eshelman's concerns were related to her cancer.

The plaintiff attorney pointed out that Eshelman had never expressed any inability or unwillingess to commute to either Breinigsville or Allentown.

Agere never considered accommodating her concerns, plaintiff counsel argued. No effort was made to retain her in another position. Others in the company had been given the opportunity to be demoted as a way of remaining employed with Agere.

Agere's attorneys argued that Eshelman was laid off through a rigorous process that led to the firing of more than 11,000 employees -- 60% of its work force.  Agere maintained that its decision to fire Eshelman was based partially on her unwillingness to travel -- a legitimate and non-discriminatory reason for termination. Her lack of flexibility, when combined with her skill sets, did not justify firing another employee in her place, the defense argued.

Agere also argued that Eshelman's short-term memory loss was not a disability covered by the ADA.

Eshelman sought $300,000 in back pay and, as an alternative to reinstatement, future wages she would have received from Agere. Under the ADEA, she sought liquidation damages. And she sought compensatory and punitive damages of more than $150,000.

Agere's attorneys argued that Eshelman did not look hard enough for a job after her firing. She did not demonstrate a continuing commitment to being a member of the workforce and therefore should not be awarded damages for wages.

The jury found that Agere discriminated against Eshelman because of her disability and awarded $200,000. It found that the company did not discriminate based on her age. Share this post :
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