What's New

Hall v. Nalco Company

In a case of first impression decided by the Seventh Circuit Court of Appeals, the federal appellate court ruled that women who undergo infertility treatments are protected by Title VII of the United States Code and the Pregnancy Discrimination Act.

According to the allegations of her lawsuit, Cheryl Hall was employed by Nalco Company, and was hired by the company in 1997. In April, 2000, Hall took on the role of sales secretary. In March, 2003, Hall took a leave of absence to undergo in vitro fertilization, ("IVF"). Hall's initial IVF treatment was unsuccessful, and she advised her manager that she planned to undergo another procedure. In July, 2003, Hall sought to take another leave of absence.

In the interim, in January, 2003, Nalco began to undergo a reorganization which led to a consolidation of sales offices. Nalco terminated Hall's employment - her supervisor told her that it "was in her best interest due to her health condition." Documents produced during the litigation showed that a human resources representative noted in Hall's employee file, her job performance, citing "absenteeism - infertility treatments."

Hall filed suit for sex and pregnancy discrimination, claiming that she was unlawful discharged due to a pregnancy related condition, infertility. The district court dismissed the case, holding that the Pregnancy Discrimination Act does not cover infertility because the condition affects men and women alike.

On June 4, 2007, Eugene K. Hollander presented oral arguments before the appellate court. On July 16, 2007, The Seventh Circuit Court of Appeals issued its landmark opinion and reversed, noting employees terminated for taking time off to undergo IVF will always be women. The Court observed that this issue was one that the court had never been presented before, and to its knowledge, was one that had never been encountered by another federal appellate. Hall's attorney, Eugene K. Hollander, observed that "this is a huge victory for my client and for women throughout the United States. Women will no longer have to worry that by seeking IVF treatments, their job may be in jeopardy." The case was covered by the Wall Street Journal, The Chicago Sun Times and The Chicago Daily Law Bulletin.

On August 15, 2008 the Seventh Circuit Court of Appeals denied Nalco's Petition for Rehearing.  We anticipate that Nalco will file a Petition for Writ of Certiorari to seek review before the United States Supreme Court.

Magallanes v. Illinois Bell Telephone Company

On July 24, 2008, the Seventh Circuit Court of Appeals reversed a district court judge's finding that Lydia Magallanes entered into a binding agreement to settle her employment discrimination case.  After an evidentiary hearing, Judge William Hibbler concluded that the Plaintiff agreed to dismiss her case in exchange for a $10,000 settlement payment.  Magallanes maintained that she always wanted to go to trial and that she never agreed to settle her case.  In its opinion, the Seventh Circuit Court of Appeals found that the district court judge abused its discretion.  Eugene K. Hollander presented oral arguments before the appellate court.  The case was featured by The Chicago Daily Law Bulletin.

Hollander Law Offices Obtains Record Verdict Against Rosebud Restaurants In Pregnancy and FMLA case.

The Buffone case was featured as a Special Segment on WLS-TV in Chicago.

On September 8, 2006, a federal jury in Chicago returned a $380,000 verdict against Rosebud Restaurants in a pregnancy discrimination and Family and Medical Leave Act ("FMLA") case. According to the Cook County Jury Verdict Reporter, this was the second largest verdict in Chicago for a pregnancy and/or FMLA case.

Kristine Buffone, daughter-in-law of Chicago Bears great Doug Buffone, was employed by Rosebud in various capacities for approximately eight years. In September, 2002, Kristine was promoted to Manager of its Theater District Restaurant, located at 70 W. Madison Street. Kristine earned $30,000 annually with benefits. On June 10, 2003, Kristine announced to her supervisor, Yvonne Burke, that she was pregnant. Kristine testified that the Executive Chef at the restaurant stated that "no one wants to watch a pregnant woman while they are eating dinner - that is disgusting." Burke later told Kristine that she was "getting big," "getting too big, and that we have to get you out of here." Kristine also testified that in 2001, Burke referred to two other female employees as having "crazy pregnant lady syndrome."

Rosebud refused to schedule Kristine after July 7, 2003. In late September, 2003, she inquired of Nancy Krause, Executive Administrator of Human Resources, about insurance and benefits. Krause, who conceded at trial that she was aware of Kristine's November 3, 2003 due date, told her to write and backdate two letters for July 1, 2003. The first letter requested FMLA leave from July 8, 2003 through September 30, 2003, and the second letter requested an additional month of medical leave, expiring on October 31, 2003 - prior to the time that Kristine was to deliver her baby. Kristine testified that it was her intention to work up until her due date, and then take leave.

On November 17, 2003, Kristine delivered her baby via C-section. Kristine started to call Rosebud corporate and Burke in December 2003, seeking to return to work in either late December, 2003 or early January, 2004. Burke told Kristine in January, 2004 that "they were full," and that she "chose to have a family, and could not expect Robbie (her male replacement) to step aside."

Kristine was asked to fill in for several part-time shifts as host and bartender in February, 2004 and did so. Kristine's last work with the company was on February 14, 2004. The defense contended that Kristine quit in July, 2003. Kristine refuted that theory by offering evidence that she was placed on FMLA in July, 2003, that Defendant paid for her insurance during FMLA, and that an internal e-mail from the Payroll Manager to the Chief Financial Officer in September, 2003 stated that Kristine was on "maternity leave" and that she intended to return to work within six weeks after the delivery of her baby.

Rosebud also argued that Kristine wished to have her FMLA start on July 8, 2003. Kristine countered that argument with her testimony that she wished to work until her due date, and that since her husband was unemployed at that time, she needed the insurance and the benefits to support her family. Kristine's attorneys used a timeline to aid the jury in understanding how Rosebud disregarded her employment rights.

The jury found in Kristine's favor on her Pregnancy Discrimination Act Claim and her claim under the FMLA. The jury awarded Kristine $55,000 in back pay damages, $75,000 in compensatory damages, and $250,000 in punitive damages. Since the verdict, the trial judge has denied Rosebud's Motion for a New Trial. Since the verdict, Judge Suzanne Conlon awarded Kristine an additional $55,000 in liquidated damages, and Magistrate Judge Sidney Schenkier recommended that Kristine should be awarded attorney's fees against Rosebud in the sum of $148,000. With the total award likely to exceed $580,000, the case settled for a confidential sum while it was pending on appeal. Eugene Hollander, and Paul Ryan, in his first federal jury trial, handled the proceedings.

Eugene Hollander has had the following article: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - A NEW WEAPON FOR EMPLOYMENT LAWYERS, published in the March, 2007 issue of the Illinois Bar Journal. Also, the 2009 supplement to Employment Evidence was recently released. See.

http://jamespublishing.com/books/ee.htm