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Pa.: Jury Awards Damages to Employee Forced to Care for Teenaged Son Suffering from Cancer 
 

11/4/2013  By Maria Greco Danaher 
 
 

In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one provision of the Americans with Disabilities Act (ADA) -- the “association" provision” -- protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

A Pennsylvania jury recently awarded more than $200,000 in damages under the ADA to a former employee who claimed that she was fired because she was caring for a teenaged son with cancer. The damages consisted of $115,000 in front pay, $70,000 in compensatory damages, and over $48,000 in back pay. A petition for attorney fees will be submitted to the court for review and possible further award.

Theresa Buffington worked as a manager at a Burger King restaurant located in western Pennsylvania and owned and operated by PEC Management Group, a company with 34 Burger King restaurants. In that position, Buffington was responsible for scheduling, overseeing employees, financial matters, and compliance with all Burger King Corporation and PEC Management standards, ordering and maintaining product and overall ensuring the smooth and profitable operation of the restaurant.

Buffington’s son died in 2011 at the age of 14, after suffering from cancer for 12 years. During the period of time within which Buffington worked for PEC, her son relapsed a number of times, making it necessary for Buffington to miss work to care for him. Despite time off to care for her son, Buffington was generally rated as an average or better performer, and received raises throughout her employment.

On Nov. 7, 2010, Buffington asked another employee to run an errand, using the employee’s own car. While on the errand, the employee was involved in an accident. PEC fired Buffington, stating that Buffington violated a company policy against allowing non-managerial employees to run errands in personal vehicles. However, there was some evidence that the policy was not strictly enforced prior to Buffington’s firing. Buffington filed a lawsuit in October 2011, claiming that the actual basis of her employment termination was the fact that she had taken off work time to care for her disabled son.

In March 2013, a federal district judge in the Western District of Pennsylvania denied PEC’s motion for summary judgment, saying that a jury should determine whether Buffington was fired because of her association with a disabled person in violation of the ADA. The case went forward to a jury, which held in favor of Buffington.

Buffington v. PEC Management II LLP, W.D. Pa. No. 1:11-cv-229 (Oct. 28, 2013).

Professional Pointer: The case is instructive on a number of issues. First, there were allegations that Buffington’s manager made statements to Buffington during the termination meeting that the company needed “someone whose head is there 100 percent” and that “now [Buffington] could spend all her time with her son.” Whether or not such comments were meant to be well-meaning, they create an inference that Buffington’s caretaking responsibilities played a role in the decision to terminate her employment. Termination meetings should be scripted, and comments should be limited to factual, objective information. In addition, by firing an individual who never had been disciplined previously, and who had received numerous pay raises throughout her employment, the company may have created a perception that Buffington’s performance was not the actual basis of her firing. Terminations should be supported by documentation that clearly supports the factual basis for the decision, leaving no chance for speculation.

Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.


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