Supermarket bakery/deli manager loses her job when communication with employer breaks down during pregnancy/medical leave.
Past economic: $52,425
Future economic: $59,000
Future medical psychological treatment: $42,000
Past emotional distress: $300,000
Future emotional distress: $125,000
McCormack & Erlich, LLP by Jason M. Erlich, San Francisco.
Top DePaul LLP by Michael J. DePaul, Oakland.
Jackson Lewis P.C. by Mitchell F. Boomer and Janelle J. Sahouria, San Francisco.
Paul Berg, Ph.D., psychology, Oakland.
John A. Zeitz, M.D., psychiatry.
Phil Allman, economics, Oakland.
Suzanne Stuckwisch, economics, San Francisco.
Plaintiff Keri Sullivan worked for Save Mart Supermarkets for nearly 15 years. In January 2014, she took pregnancy leave and she learned that she had Lupus – an autoimmune disorder, which complicated her pregnancy. She also developed post-partum depression. Despite these obstacles, she was in regular contact with her store manager and defendant Save Mart Supermarket's leave vendor, FMLA Source.
For employees on medical leave, Save Mart employs “72 hour letters” in which an employee has three days to respond to a request for medical certification or they may be terminated. Save Mart sent one to plaintiff at her address of record in early November 2014 claiming she had not provided medical certification to support her absence. About two weeks later the letter was returned to Save Mart as undeliverable. Save Mart then sent a termination letter to the same address claiming “job abandonment” for failure to submit medical certification supporting a continued leave of absence.
Since plaintiff had been in contact with her store manager, the store manager gave Human Resources plaintiff's phone number, informed HR that plaintiff's medical provider was having trouble getting the medical certifications to FMLA Source, and that plaintiff needed a little more leave time. Save Mart did not attempt to call or email plaintiff. Save Mart's leave manager assumed plaintiff did not want to return to work following the birth of her child. Plaintiff did not learn she had been fired until two weeks later when she called her store manager. Plaintiff then called the HR Manager for her store and tried to get her job back.
Plaintiff testified that the HR Manager wouldn't help her and told her she simply could reapply when she was released to work because she remained eligible for rehire. The HR Manager stated that she would have taken steps to bring plaintiff back to work, had plaintiff indicated she wanted to return to work. The HR Manger also testified she was 100% certain plaintiff never said anything about wanting her job back and only requested her final paycheck be sent to her updated address. Frustrated with Save Mart's behavior, plaintiff went to her union and filed a grievance, but no one ended up advancing the grievance.
That Save Mart failed to reasonably accommodate her by returning her to her former position as Bakery/Deli Manager – a position which remained open for months after her termination. Also, that Save Mart failed to engage in any interactive process such as continuing her leave. Plaintiff also alleged that Save Mart terminated her employment because of her pregnancy and her medical condition.
That plaintiff shared responsibility for the breakdown in communication that resulted in her discharge by failing to update the company with her new address and failing to provide timely medical certification of her need for continued medical leave, resulting in the mistaken conclusion that she had abandoned her job. Save Mart argued that plaintiff caused the breakdown in the interactive process and discussions about reasonable accommodation. Save Mart also introduced evidence that plaintiff did not inform the union that she wished to pursue her union grievance even though doing so could have resulted in reinstatement. Approximately two months before trial, Save Mart offered plaintiff unconditional reinstatement and calculated her back pay at $87,000.