On or about September of 1996, the Employee was diagnosed with breast cancer. On or about October 10, 1996, the Employee had a radical mastectomy in order to remove cancerous cells, and on or about this day, the Employee was discharged from the hospital following this surgery and other cancer related surgery such as the removal of the Employee's lymph glands. By on or about January 5, 1997, the Employee had sufficiently enough recovered from her surgery to return to work at the Defendant.
On or about May 12, 1997, the Employee's supervisor, told the Employee that the Employee could not take off for a 5-17-97 doctor's appointment with one of the Employee's cancer doctors who the Employee had to see on a fairly frequent basis during this period of time because the Employee had recently had the radical mastectomy and was still receiving cancer treatment such as chemotherapy. After Pam told the Employee that the Employee could not take off for the cancer related doctor's appointment, on or about 5-17-97, the Employee told the supervisor that the Employee was going to speak to personnel to see what they had to say about the Employee not being allowed to take time off to see her cancer doctor, during the middle of a particular work day, for an hour or two.
Following the conversation referenced in the above paragraph of this cancer discrimination lawsuit, still on or about May 12, 1997, the Employee went to see the Defendant's Personnel Head's Assistant, Unhelpful employee. The Employee explained that Of the Employee had told the Employee that the Employee could not take off to see her cancer doctor for an upcoming appointment. Unhelpful employee told the Employee that "prior notice" would have to be given before the Employee took off. The purpose of the 5-12-97 communications however was to give prior notice that the Employee had to see her doctor on 5-17-97. Unhelpful employee then called in the Head of Personnel, Dave Unhelpful employee 2. Mr. Unhelpful employee 2's input was that the Employee could not take off anymore time for chemotherapy or cancer related treatment. The Employee said what if I'm having a problem related to my cancer and I have to see the doctor? The Employee then explained that she also had an upcoming chemotherapy appointment. Unhelpful employee 2's response was that the Employee could not take anymore days off for her cancer treatment if there was not somebody there to cover for the Employee. This was an unreasonable policy being that there were at least 2 other persons doing the Employee's same job, recently there had only been 1 person other than the Employee, the Employee had to do the job of all 3 when the other 2 were out for varying reasons, the Employee had been at the Defendant for 24 years, and that the Defendant had the resources to hire sufficient cover for the Employee while she recovered from cancer and made sure that her cancer was eradicated by continuing cancer related medical treatment such as chemotherapy and check ups. Unhelpful employee then told the Employee that the Employee would be terminated if the Employee took off anymore time for her cancer treatment. The Employee's response was that she had to see her doctor on 5-17-97, that was her doctor's orders, and it was important for the Employee's cancer recovery and eradication.
On or about May 16, 1997, the Employee called her supervisor Of Employee and said is it true that if I go to my doctor's appointment on Friday, that I already told you about, I will be fired. Of Employee response was that the Employee would be fired if the Employee went to the Employee's 5-17-97 cancer related medical appointment.
On or about May 17, 1997, the Employee went to her cancer doctor as her doctor required her to do and as the Employee had spoken to Of Employee, Unhelpful employee, and Unhelpful employee 2 about.
The Employee then confirmed that as of May 18, 1997, the Defendant terminated the Employee's employment because she went to the 5-17-97 doctor's appointment for cancer related treatment.
At the time of the Employee's termination, she was employed on a full-time basis, by the Defendant, earning $12.00 per hour plus substantial fringe benefits. Also at all times herein mentioned, the Employee had performed 1,250 hours of work for the Defendant hospital within the last year which is a requirement to be entitled to Family Medical Leave (FMLA) otherwise known as California Family Rights Act (CFRA) in California.Before being terminated, the Employee was also discriminated against on the basis of her medical condition (cancer), disabilities described in the Second Cause of Action of this cancer discrimination in employment lawsuit, and need for Family Leave as follows:
At all times herein mentioned, more than 50 persons were employed by the hospital employer. In fact, hospital employer employed approximately 2,500 employees at the location of this cancer discrimination lawsuit.specified in Paragraph 2 of this cancer discrimination lawsuit.
California Government Code Section 12926(k) defines physical disability as an anatomical loss or cosmetic disfigurement that affects the body systems, neurological, immunological, musculoskeletal, special sense organs, including reproductive, lymphatic, skin, or endocrine and affects one's ability to participate in major life activities and/or being regarded as having had or having such. The Employee alleges that the loss of her breasts, removal of her lymph glands, and related surgery on or about 10-10-96 constituted a disability as defined above. The Employee further alleges that the loss of her breasts and lymphatic glands prevented her from partaking in major life activities including being able to lift objects of any weight, secrete bodily fluids, rotate her arms as before, and engage in certain sexual encounters. Additionally, at all times herein mentioned, the Employee was regarded as being disabled, suffering from a cancerous disability, and being disfigured.
The Employee brought this cause of action for disability and medical condition discrimination, harassment, retaliation, a failure to accommodate such, and termination of employment because of such.The Employee alleges that she was discriminated against as follows:
The Employee further alleges that reasonable accommodations, within the workplace, could have been made during the periods of time that the Employee had to be out because of her cancer related medical condition and disabilities alleged in this lawsuit. These reasonable accommodations could have included any of the following:
Allowing the Employee to work on different days, allowing the Employee to work longer shifts so that the Employee would not have to work at the times that she needed cancer related treat, paying overtime to staff members, hiring temporary workers, the Employee's supervisor helping out, or just going on as usual without the Employee because the Defendant's staffing needs were not such that the staff in place could not perform the Employee's job functions while she was out for a few hours, a day, or even a longer period of time until the Employee's cancer related treatment was over, or transferring the Employee to an alternative job during the period of time that she was receiving cancer related treatment.CANCER DISCRIMINATION CASE RESULT: Cash payment of over $60,000 in 2014 dollars and restoration of an employment benefit equivalent to a long term disability policy worth approximately $2,100 a month in 2014 dollars, over the life of the terminated employee worth at least $300,000.
On or about March 6, 2013, The Employee informed Human Resources employee 1 that she was diagnosed with cancer and needed surgery for a "Robotic Hysterectomy, Partial Vulvectomy," and the recovery period was 4-6 weeks. The Employee said the surgery date is April 3, 2013, and I will be out approximately four to six weeks.
The week of March 6, 2013, the Employee told School employee, the head of the middle school the Employee was a teacher at, that she was diagnosed with cancer and needed surgery. They then discussed what type of preparations would be needed for lesson plans while the Employee was gone. Stall also discussed her experience with cancer. Stall and the Employee had a second discussion about The Employee's cancer and need for leave approximately a week before Spring Break. The discussion revolved around how the teaching assistant would do the teaching, and the Employee's upcoming surgery.
Approximately a week and a half before the Employee's April 3, 2013 surgery, human resource employee 1 contacted the Employee and told her to call human resource employee 2 regarding the Employee's leave.
Approximately a week and a half before April 3, 2013, the Employee spoke to human resource employee 2. The Employee ultimately handed a piece of paper to her that was a hysterectomy consent form. The Employee said she had cancer. Human resource employee 2 gave the form back to the Employee and said your doctor needs to call me. The Employee asked her doctor to call Brown, and her doctor did. NOTE: A CERTAIN NUMBER OF WRONGFUL TERMINATION CASES INVOLVING MEDICAL ISSUES ARE BECAUSE THE EMPLOYER REFUSES TO TAKE PHYSICAL CUSTODY OF MEDICAL PAPERWORK THAT WOULD JUSTIFY A LEAVE OF ABSENCE FROM WORK UNDER AN EMPLOYMENT LAW. The document From Dr. at Gynecologic Oncology doctors states the Employee requires a medical leave of absence from April 2, 2013 to May 20, 2013.
On or about March 29, 2013, human resource employee 1 had the Employee fill out a personnel change form indicating that from April 3, 2013 to May 15, 2013 she will be on a leave of absence.
On or about May 3, 2013, Defendant hired a replacement for the Employee. On or about May 17, 2013, human resource employee 1 and Vice-President of Human Resources told the Employee that she had been replaced. The Employee said I don't see how you can do that when I was out for surgery for cancer.
The Employee suffered from a physical disability under California Government Code Section 12926(k) and a medical condition, cancer, under 12926(i)(1), genetic characteristics under California Government Code Section 12926(i)(2), and contends that the Employee required the reasonable accommodation of time off to treat, seek medical treatment, or recuperate after due to cancers. Defendant violated California Government Code Section 12940 by failing to reasonably accommodate the Employee by providing the necessary leave, failing to keep The Employee's job open, discriminating against The Employee due to The Employee's medical condition and disability and letting others work but not The Employee, failing to reinstate The Employee, and terminating The Employee's employment as a result of taking a leave of absence as a result and/or asserting her rights to a leave under FEHA.
Against Defendant, employer The Employee filed with the Department of Fair Housing and Employment that state The Employee was terminated, denied reasonable accommodation, denied reinstatement, and a good faith interactive process due to a disability and cancer. A true and correct copy of the charges the DFEH interpreted has been attached to this complaint, made a part hereof, and has been marked as Exhibit 2 of this cancer discrimination in employment lawsuit. What The Employee wrote is attached as Exhibit 1 to this cancer discrimination in employment lawsuit and includes the box Medical Condition - Including Caner being checked and Genetic Information or Characteristics being checked. The Employee alleges that the type of cancer she suffered from was genetically caused, and that her mother died of the same cancer she was diagnosed with at a similar age The Employee was diagnosed. On May 24, 2013 the Department of Fair Housing and Employment issued to the The Employee a Right to Sue letter and notice of case closure that is attached hereto, made a part hereof, and Marked as Exhibit 3 to this cancer discrimination in employment lawsuit.WRONGFUL TERMINATION DUE TO CANCER CASE RESULT: Early settlement through a mediator after the employer repeatedly refused to offer sufficient money to resolve the case without a mediation and then mediator’s proposal.
On or about August 16, 1999, The Employee went out on disability leave so that he could undergo medical treatment associated with his diagnosis of stomach cancer. The treatment was severe including hospitalization lasting past January of 2000, surgery, and all sorts of aftercare that had to be done in the hospital.
Prior to August 20, 1999, The Employee's supervisor, Sales supervisor was aware that The Employee had been diagnosed with cancer and was going into the hospital for related treatment. Until The Employee's release from the hospital, he regularly communicated with Sales supervisor who understood that The Employee was highly desirous of coming back to work once his doctors permitted. Sales supervisor reassured The Employee that he would do everything possible so The Employee could do so,
In January of 2000, Defendant and their management became aware that The Employee's doctors released him to go back to work in February of 2000. The Employee then arranged with Sales supervisor for The Employee to come back to work in February.
Upon coming back to work in February of 2000, The Employee was assigned to ten to twelve hours shifts at least three consecutive days in a row. The Employee promptly informed Mr. Sales supervisor that his recovery did not allow him to work such long hours especially for consecutive days. The Employee requested part-time work until his health resumed, in the near future, and full-time work once his health resumed. Soon this request included finding The Employee such part-time work within Defendant's operations if it could not be at the same store The Employee worked.
In the months to come, The Employee made numerous requests for work from Defendant. First these requests were for part-time work, and then they expanded into requests for full-time work once The Employee's health improved. After making these requests of Mr. Sales supervisor, The Employee began making these requests to District Manager. Eventually, these requests, and communications about The Employee wanting his job back, were made to various persons in Defendant's Human Resource Department. At some point in these inquiries, The Employee was told that he was terminated. The Employee is informed and believes that this was communicated to him on or about May of 2000.FAILURE TO ACCOMMODATE CANCER TREATMENT CASE RESULT: Confidential settlement while the case was on appeal.