Double Victory in Nevada Case For WP&S Litigation Team!

Two members of our litigation team, WP&S Litigation Department Chair Chuck Pautsch, and Milwaukee office associate Lisa Baiocchi, recently recorded two separate victories in a difficult employment litigation matter that has pended for over five years in Nevada.

Our client, a large dental supplies distributor, was sued in federal and state court in Nevada by an employee who claimed disability discrimination under the ADA and retaliatory discharge for having filed a workers' compensation claim.

In December 2007, Chuck Pautsch orally argued the matter before the Ninth Circuit U.S. Court of Appeals in San Francisco. Later that month, that Court ruled in our client's favor that the Plaintiff was not disabled under the ADA. And in February 2008, a Nevada state court judge granted our client summary judgment, finding as a matter of law that the Plaintiff was not retaliated against, but instead was lawfully terminated because he could no longer physically perform his job. Because the company was awarded summary judgment, a jury trial scheduled to begin in March 2008 was avoided.

Plaintiff had contended that he was disabled, was perceived as disabled or "regarded as having a record of disability," due to a neck injury that he allegedly suffered on the job. He attempted to tie this to earlier problems he had with his back and triple bypass surgery that he had years earlier. A three-judge panel of the Ninth Circuit rejected this attempt and issued an opinion agreeing with Pautsch. The panel stated that the Plaintiff was not covered under the ADA's definition of disability, which requires a physical or mental condition that substantially impairs a major life activity. The Court held that the Plaintiff's condition, which resulted in a permanent 35 lb. lifting restriction, was not such a disability and also that he was not "perceived as" having such a disability. Plaintiff had argued that he was "perceived" as disabled because the company had not offered him another job, and a former supervisor had indicated that he was viewed as a "workers' comp" risk. This federal Appellate Court agreed with Pautsch and held that this did not add up to the perception that he was "substantially impaired."

Plaintiff also argued that he was "regarded as" having a "record of disability." On this point, he claimed that his earlier back problems and triple bypass surgery constituted such a "record." The Court noted that the Plaintiff had fully recovered from these earlier problems and that they were too unrelated to his current condition to constitute a record of a "substantially limiting" disability. Plaintiff even tried to Petition for a Rehearing En Banc (before the full 28-judge Ninth Circuit). This Petition was denied and thereby supported the position of Pautsch.

"We are particularly gratified by this result since we were able to secure summary judgment and avoid a jury trial on both counts, in two different courts, federal and state against determined opposition," Litigation Department Chair Pautsch observed.