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December 19, 2001
Woman's ADA Claim Upheld, FMLA Claim Denied
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ederal judge in Pennsylvania has refused to dismiss a suit brought under the Americans with Disabilities Act by a woman who suffers from fibromyalgia and chronic fatigue syndrome. He concluded that her symptoms could result in a "substantial impairment of a major life activity."

But in a second significant holding in the same case, the judge dismissed all of Michele Alifano's claims under the Family and Medical Leave Act. He found that she was complaining only of "interference" with her FMLA rights, not of suffering any actual violation of those rights.

According to the Legal Intelligencer, Alifano had been hired in 1998 as a security investigator for Merck & Co., based in Whitehouse Station, N.J. The job required her to spend a large percentage of her time traveling throughout the Northeast.

In early 1999, Alifano became seriously ill with what was later diagnosed as fibromyalgia and chronic fatigue syndrome. She began a medical disability leave of absence in late June 1999.

In mid-September, she told Merck that she could return to work with restrictions; she could not work more than eight hours a day, and she could no longer travel for work, except to and from the office.

Over the next four months, Alifano repeatedly asked Merck when she could return to work. Each time, she claims in the suit, the company told her that it was trying to find a suitable position for her.

Alifano applied for several other positions at Merck, but without success. In December 1999, Merck offered her a security investigator position in Los Angeles; Alifano says she declined the offer because it did not accommodate her medical restrictions. By late July 2000, the company deemed her to have abandoned her job and terminated her employment.

In the suit, Alifano's lawyer, Anne E. Hendricks, argued that Merck violated her rights under the FMLA in seven ways:

- Failing to provide adequate notice of her FMLA rights.

- Failing to provide adequate written notice explaining the specific expectations and obligations and the consequences of a failure to meet these obligations.

- Discouraging her from exercising her FMLA rights.

- Failing to engage in the "interactive process" with her.

- Discriminating against her on the basis of her serious health condition.

- Failing to provide her with reasonable accommodations.

- Wrongfully firing her because of her disability and her attempt to exercise her rights under the FMLA.

But Judge J. Curtis Joyner found that none of the alleged violations are actionable.

Joyner noted that Section 2615(a)(1) of the statute prohibits employers from interfering with a worker's FMLA rights and that Section 2615(a)(2) prohibits firing workers who oppose practices that the FMLA makes illegal.

But he also found that courts "have refused to recognize a valid claim for interference in the absence of any injury."

To state a valid claim for interference with FMLA rights, Joyner said, the worker "must claim that the alleged interference caused her to forfeit her FMLA protections."

Alifano's claim fell short, Joyner said, because her suit does not allege that Merck denied her entitlement to leave or failed to restore her to her previous position.

"Thus, she has not successfully alleged any forfeiture of her FMLA rights. Since the plaintiff has failed to allege any FMLA violations, the court finds that her claim regarding defendants' interference with her FMLA rights do not state a claim upon which relief can be granted," Joyner wrote.

To read the Legal Intelligencer article at Law.com, click here.
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