Jottings By An Employer's Lawyer

Wednesday, December 03, 2008

Hey Boss, I Had a Good Vacation - How Was Yours?

Having just returned from a week in a magical spot in Mexico, I suppose I still have vacation on the brain, which is my only excuse for the headline to introduce a much more serious topic, Fired Bethel Park woman awarded $1.8M. The "awarder" was a Pittsuburgh federal court jury which of course actually didn't award anything, but made findings that Carole Smith had been improperly terminated because of her sex and pregnancy.

According to various stories, including a more detailed report in the DLR ($), Carole Smith was a property manager for Normandy Properties who went on maternity leave on October 20, 2005 on the advice of her doctor. Her son was born by C-section on November 8 and remained in intensive care for 2 weeks. After Smith's four weeks of paid leave ended and she did not return to work she was terminated. Apparently there was disputed evidence as to whether she requested that her leave be extended for 30 days (unpaid) as permitted by the company's policy or if her position had been eliminated. The jury apparently accepted Smith's version of the facts.

The jury's award included $600,000 in compensatory damages and double that in punitive damages, for the $1.8 million total. Although it is not clear if this is a federal or state law claim or both, it is apparently clear that in addition to other post-verdict motions, one issue is the application of damage caps and it may be a difference between $50,000 and $100,000, which would of course under federal law would be based on number of employees. There are also issues about back pay and attorneys' fees.

One of the more interesting aspects of the case (and the basis for the snarky headline) is that during the course of the litigation, Smith was rehired at the same salary (although given the title of leasing agent), and took a week's vacation to attend the four day trial.

In the DLR story, it is clear that the return to work was an effort by the employer to cut its future damages by offering an unconditional reinstatement with no preconditions. According to the DLR story, a significant offer that would have required a resignation made 6 weeks before trial was turned down. Making a decision whether or not to offer unconditional reinstatement is one of the toughest strategic calls any employer and their lawyer have to make. Almost by definition you only consider it in the toughest of cases.

A result like this illustrates both points, all too well.


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