Early attention to FMLA, discrimination details benefits LRS client

Issue September 2006 By Andrea R. Barter, Esq.

What do you do when you suspect your employer of nine years is laying the groundwork to fire you after you've requested time off under the Family Medical Leave Act? Contacting the Massachusetts Bar Association's Lawyer Referral Service was the first resort for "Ellen." (Due to a confidentiality agreement, neither the plaintiff nor the defendant can be publicly disclosed.)

The LRS put Ellen in touch with Hanover attorney David H. Stillman, Stillman & Associates, who advised her to document, document, document. "It was good she called us early on so she could give us a contemporaneous diary of what was going on," said Stillman.

Ellen was a customer service representative for large, well-known Massachusetts corporation. She suffered from both Hepatitis C and fibromyalgia before she was hired, but her conditions worsened over time, ultimately forcing her to apply for FMLA leave.

"Right after she filed, things started happening," said Stillman. Ellen had a previously unblemished record, but after filing, she received reprimands for policy violations that were not enforced against other employees, and her commissions went down dramatically without explanation. "They were papering her file, looking for reasons for giving her a bad review," said Stillman. "She called the Lawyer Referral Service before termination because she saw it coming."

According to Stillman, Ellen, armed with a doctor's note documenting her inability to work more than 40 hours per week, tried to work out a mutually convenient work schedule with the company. For example, if she had to miss work because of her health problems, she would take off two hours but then make them up. "She was good about keeping track of that, so when the company said that was an issue, her records demonstrated she had only taken her sick leave time plus two more days." She hadn't taken any leave time under FMLA, which grants 12 weeks of leave.

Initially, Stillman and his associate, Jill Goodman, filed with the Massachusetts Commission Against Discrimination, alleging discrimination based on Ellen's disability — her health conditions. But because there was an argument for a violation of FMLA, Stillman and Goodman pulled the case from MCAD after 90 days and filed in Superior Court. The parties ultimately mediated the case to a successful resolution.

Although Stillman could not reveal the details, he said his client received a good settlement. "She was happy with it, but wasn't willing to just take anything. She felt pretty strongly she was entitled to be compensated for what happened, but she didn't want her job back."

"Having the Lawyer Referral Service was a big help to the client, who was having problems and was able to talk to us before she was terminated. We had the opportunity to help her out, to work with her and she was a very nice lady," said Stillman, who received attorney fees in excess of $86,000. "We would not have had the opportunity to have the case but for the Lawyer Referral Service," he added.

LRS makes more than 25,000 referrals each year to its 1,200 attorneys across the state. If you are interested in becoming a member of LRS in order to obtain referrals, please call the Lawyer Referral Service at (617) 338-0556.