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Does My Job Have To Give Me Time Off For Cancer Treatments? I Need The Top Disability Discrimination Lawyer And Best Wrongful Termination Attorney In Ohio!

On Behalf of | Aug 1, 2016 | Age Discrimination, Disability Discrimination, Employment Discrimination, Family Medical Leave Claims, Gender Discrimination, Military Status Discrimination, National Origin Discrimination, Pregnancy Discrimination & Maternity Rights, Race Discrimination, Religious Discrimination, Wrongful Termination |

Best Ohio Disability Discrimination Attorney Answer: Is a medical leave a reasonable accommodation for a disability or serious illness? What does it mean when my boss says that my requested disability accommodation would cause and “undue hardship” to the business? How do I prove that my employer failed to give me a reasonable accommodation to help me work with my disability?

disability, discrimination, my job, cancer, treatment, medical leave, time off, accommodation, undue hardship, I was fired, my job discriminates, I’m disabled, my boss, I’m being discriminated against, What should I do, How do I, Employment, Lawyer, Many employment discrimination claims are decided by which lawyers frame and argue the facts the best. The disability discrimination case that we are discussing today is a case where perspective and framing of the facts is critical. If your friend is a manager of a retail store and tells you that an employee that has been there only two months just turned in a note asking for nine months off, I could imagine your reaction being that such a request is unreasonable and possibly ridiculous. But, keep in mind that these facts have been narrowly framed from the employer’s perspective. Would you change your mind if you learned that the employee told the manager that she was just diagnosed breast cancer and would need some time off for treatment – but could work regularly between treatments? What about if you then learned that that manager told the employee to get the doctor’s note saying that she would need off the entire time of the treatment so that they could work with her, and then the turned around and fired her because the employee requested too much time off while ignoring her statements that she could work during the treatment? Perspective and waiting to hear both sides matters, right? Let’s get into this employment discrimination and wrongful termination a little deeper.

At Spitz, The Employee’s Law Firm, our employment discrimination lawyers are dedicated to helping current and former employees who have been subjected to disability discrimination in the workplace. In fact, our employment discrimination lawyers have regularly covered issues that arise when a boss, manager, or supervisor decides to discriminate against disabled employees. (Is My Job’s No Limitation Policy Legal? – Call The Right Attorney; Can I Be Fired For Going To The Doctor? – Call The Right Attorney; My Job Is Discriminates Against Me Because I’m Disabled!). As our top employment law attorneys have explained, disability discrimination laws not only protect against discrimination at work and wrongful termination, but these laws also require employers and companies to provide reasonable accommodations to help disabled workers do their jobs. (See Disability Discrimination: Can I Get A Work Accommodation?Is A Transfer A Reasonable Disability Accommodation?; How Do I Get A Disability Accommodation For My Job?; and ADA Law: How Do I Get A Disability Accommodation At Work?).

attorney, Ohio, Cincinnati, Cleveland, Columbus, Toledo, employer, employee, employment law, wrongful termination, discriminate, discriminating, best, top, Brian Spitz, ADA, Americans with Disabilities Act, To review, all employees are protected under the federal Americans with Disabilities Act (“ADA“) and Ohio’s R.C. § 4112.02(A) from being discriminated against or retaliated against by their employers on the basis of their actual or perceived disability. These laws also prohibit employers from making pre-employment, disability-related inquiries of job applicants. Moreover, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.”

Recently on July 4, 2016, the Federal District Court for the Northern District of California denied an employer’s motion for summary judgment (which is a request to dismiss the employee’s disability discrimination lawsuit before it reaches the jury). Specifically, in Gutierrez v. Kenneth Cole Productions, Inc., Cynthia Gutierrez was a former employee of Kenneth Cole where she was hired a store manager in 2013 at one of the company’s San Francisco locations. The employee’s disability discrimination claim were based on the employer’s failure to grant the employee medical leave while she was treating for cancer. About five months after being hired, Gutierrez was diagnosed with breast cancer and was told that she would need to undergo chemotherapy for her cancer. Gutierrez informed Kenneth Cole of her medical issues and that she needed several days off of work in order to attend medical appointments and treatments.

Later in December, 2013, Gutierrez informed the company that she needed leave from work for the chemotherapy. In response, Kenneth Cole told Gutierrez that she was not eligible for Family and Medical Leave Act (“FMLA“) and that the company “retained discretion to terminate her employment following a request of even two-days of leave.” A few days later, the company told Gutierrez that it would consider an unpaid leave of absence supported by a doctor’s note. Gutierrez complied and provided several doctor’s notes, one of which specified that she needed a nine-month leave of absence for her cancer treatment with leave to begin on December 29, 2013.

Upon receiving these notes, Kenneth Cole’s HR department made the determination, based on staff in the store and surrounding stores, that “the San Francisco store needed to have a dedicated permanent store manager in order to survive the financial trouble it faced.” Based on this determination, Kenneth Cole concluded that the nine-month leave of absence requested by Gutierrez as an “undue hardship” on the company and thus, did not grant the accommodation. Instead, Kenneth Cole terminated Gutierrez’s employment. Thereafter, she filed a lawsuit for wrongful termination.

Upon examination of the record, the court denied summary judgment for Kenneth Cole based on several reasons. First, the court found that questions of fact remained whether Kenneth Cole engaged the proper “interactive process” to determine what reasonable accommodation may be available for Gutierrez, especially considering the fact that Gutierrez had told the company that she could possible return to work sooner or even work while getting treatment instead of going on a straight nine-month leave. Because Kenneth Cole did not take these communications into consideration before terminating Gutierrez, she claim for failure to provide a reasonable accommodation survived. Specifically, the Court held:

Gutierrez testified that Terpenning asked her to provide a letter from her oncologist requesting leave for the full length of her treatment (despite her position that she could work during her treatment). Gutierrez understood that once she get a doctor’s note covering the full length of her treatment and her request for leave could be modified with that as the baseline. In other words, Gutierrez claims to have been flim-flammed — told to get a note for a long excuse period when she had verbally told Terpenning she would return sooner. Then the note for a longer leave period became the centerpiece of the dismissal.

Thus, there is a genuine dispute of fact as to whether Kenneth Cole in fact knew Gutierrez thought she could return to work immediately after her surgery and whether Kenneth Cole directed her to submit a letter indicating the full length of her treatment, despite knowledge to the contrary. Such circumstances would undermine Kenneth Cole’s contention that it engaged in the interactive process in good faith. Kenneth Cole also disputes the authenticity of the letter from Dr. Svahn. These fact disputes bar summary judgment for both sides.

Second, the court rejected Kenneth Cole’s defense that the accommodation was an undue hardship because this determination rested on the initial factual dispute over what exactly the accommodation was that Gutierrez was seeking. In the court’s words, “counsel put the cart before the horse” meaning that it could not decide whether a requested accommodation was an undue hardship on the company when in fact it had yet to be determined what the accommodation was in the first place. Additionally, the Court held there were additional facts that made summary judgment in appropriate on the “undue hardship factor”:

Although Catropa purportedly rejected the idea of borrowing a manager from another store to accommodate Gutierrez’s request Kenneth Cole in fact transferred Heather Jordan, a floating store manager who had worked in Los Angeles, to fill Gutierrez’s position, while leaving Jordan’s position vacant. Although Kenneth Cole reassigned Jordan permanently, this raises a dispute of fact as to whether Kenneth Cole could have reassigned Jordan temporarily (while leaving her position in Los Angeles vacant) in order to accommodate Gutierrez’s request. The possibility that Kenneth Cole could have offered some lesser accommodation remains a further factual dispute that cannot be resolved at this stage. Moreover, the availability of an alternative accommodation depends on the circumstances of Gutierrez’s request.

The moral of the story is that there usually is more than one version of the story. Thankfully, the Court in this case took the time to hear both parties out and will now send it to the jury to decide.

Having to live with a disability or serious illness like cancer is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.


This employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I disabled under the ADA?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney, Brian Spitz or any individual attorney.

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