Reinstate Wrongful-Firing Lawsuit by Cancer Victim

A staffer for the Department of Homeless Services, who was denied a year leave to recover from breast cancer, recently won an appellate court decision reinstating a lawsuit that challenged her termination because she could not return to work for medical reasons.

Deborah Phillips, who worked for the city since 1988, was granted an approved medical leave on July 26, 2006, which extended to Oct. 30, 2006. She later requested leave for a full year starting that August, which she was denied. She was told she was not eligible for more than 12 weeks of leave, because she was an employee in a non-competitive title and not considered a permanent civil service employee under the Family and Medical Leave Act.

Gave Her Ultimatum

A DHS official later wrote to Ms. Phillips advising her that if she failed to resume to work by the agreed return date of Oct. 30, she would be subject to disciplinary action. Three days prior to that date, the agency wrote she would be fired if she did not return to work on schedule.

Ms. Phillips was terminated on Oct. 30, 2006 after she did not return to work.

She sued the city and DHS alleging that she was a disabled person within the meaning of the state and city Human Rights Laws and her request for an extension of medical leave should be treated as a reasonable accommodation under those statutes. She sought reinstatement and full retroactive pay.

Ms. Phillips also charged that because of her termination, she lost medical benefits and had to delay her scheduled cancer surgery, which affected her Stage III condition.

A Manhattan Supreme Court Justice in October 2007 dismissed the lawsuit based on city lawyers' contention that because the right to leave for up to two years did not apply to employees in non-competitive job titles, the firing of Ms. Phillips was reasonable and lawful.

Denied Reasonable Accommodation

But an Appellate Division panel by a 3-1 vote found against the city, saying that it did not make reasonable accommodations for Ms. Phillips. The court majority noted, "Rather than operating on generalizations about people with disabilities, employers must make a clear, fact-specific inquiry about each individual's circumstance."

It continued, "It can reasonably be inferred that plaintiff needed the re- quested leave to be able to have and recover from cancer surgery, after which time she anticipated that she would be able to return to work."

Leonard Koerner, the city Law Department's Appeals Division Chief, said, "We are planning to seek permission from the Appellate Division to have the matter heard in the Court of Appeals." If the request is denied, the case goes back to the original judge for trial.

The appellate court also said that the city and the DHS could not cite the policy that employees in a Noncompetitive title are not allowed medical leave beyond the original 12-week leave granted under the Family and Medical Leave Act. The city could not ignore the requirements of the Human Rights Laws according to job title, the court ruled.

'No Undue Hardship to DHS'

"There are, after all, a great variety of medical conditions (with a great variety of prognoses), just as there are a great variety of covered employers (some very large, others very small)," the decision stated. "Likewise, there are a great variety of jobs that are held by employees (some whose services cannot be dispensed with for an extended period, and others who can easily be replaced for longer periods).

"Without a specific evidentiary record, it cannot be said that DHS would have suffered undue hardship from a one-year absence of this employee. Nor can it be said on this record that the provision of the accommodation would not have enabled plaintiff to return to work after a period of recuperation."