In an opinion handed down yesterday, the U.S. Court of Appeals for the D.C. Circuit determined that a portion of a discrimination case filed against Ballard Spahr Andrews & Ingersoll will be allowed to move forward. The trial court had previously granted Ballard Spahr's motion for summary judgment in a lawsuit filed by a former employee.
The case stems from the 2004 firing of Vanessa McFadden, who had worked in the firm’s Washington office as a legal secretary since 1989. McFadden took a leave of absence from the firm in October 2002, when her husband was diagnosed with cancer. McFadden began to have health problems of her own in April 2003. According to the D.C. Circuit’s opinion, written by Judge Douglas Ginsburg and joined by Judges Janice Rogers Brown and Thomas Griffith, McFadden suffered from Graves’ disease, fibromyalgia, depression, and other ailments.
McFadden took additional paid and unpaid leave, and when that ran out in May 2004, she called Ballard Spahr human resources manager Margaret Riley-Jamison to find out about her job status. Riley-Jamison offered McFadden a job doing word processing, but McFadden said she couldn’t do that job because she had difficulty typing. She requested a transfer to a receptionist job that was being held open for another employee out on disability leave. The firm declined to make that transfer, and McFadden was subsequently fired.
In 2005, McFadden, who is African-American, filed suit against the firm, alleging that the firm discriminated against her because of her race. She also accused the firm of failing to make a reasonable accommodation under the Americans with Disabilities Act, interfering with her right to take leave under the Family and Medical Leave Act, and retaliation.
In September 2008, Judge Richard Leon of the U.S. District Court for the District of Columbia granted Ballard Spahr’s motion for summary judgment on all counts.
On appeal, McFadden, who was represented by Teresa Murray, a Washington-based solo practitioner, argued that the trial court erred by granting summary judgment because there were issues of fact still under dispute.
On the racial discrimination count, McFadden argued that because she was replaced by a white employee and because some of the firm’s white employees in similar positions were allegedly given more accommodations, the firm had demonstrated a racial bias.
Ginsburg’s opinion waives off that argument because McFadden failed to make a case that she was fired for any reason other than her inability to perform the duties of her position. She also failed to make a case, Ginsburg wrote, that the firm’s reasons for terminating her were simply a pretext to fire her. “McFadden in her brief acknowledges her medical condition rendered her unable to perform the essential functions of a legal secretary: ‘Disabled and no longer able to type, McFadden became unable to continue working as a Legal Secretary.' That is precisely the reason given by Ballard Spahr for terminating her.”
Ballard Spahr was represented by Jonathan Mook, a partner at DiMuroGinsberg who argued the case on appeal, and Bernard DiMuro. Ballard Spahr partner Constantinos Panagopoulos was also on the firm’s brief.
Ginsburg’s opinion goes on to agree with the trial court’s decision to grant summary judgment on the reasonable accommodation and retaliation allegations for similar reasons. For the reasonable accommodation allegation, Ginsburg wrote that McFadden had failed to show that the firm’s contention that the receptionist position sought by McFadden was being held open for another employee was a pretext for firing her. Ginsburg also concluded that McFadden failed to provide adequate evidence of retaliation.
The firm left open the possibility that the firm had interfered with her right to take leave under the Family and Medical Leave Act. The trial court had granted summary judgment on that count because McFadden never claimed that Ballard Spahr denied her leave when she requested it, McFadden produced insufficient evidence that she had to pay out of pocket to have her sister care for her ailing husband, and she did not allege a causal relationship between Ballard Spahr’s conduct and the payments.
The D.C. Circuit, however, ruled that McFadden is not required under law to prove Ballard Spahr denied her leave; she only has to show that the firm interfered with the exercising of her FMLA rights. Also, Ginsburg wrote, a “reasonable” jury could likely determine that that McFadden paid her sister to care for her husband and that she did so because Ballard Spahr “led her to believe she could not take time off to care for him herself.”
The D.C. Circuit sent the case back to the trial court to address McFadden’s FMLA claim. In a footnote, Ginsburg wrote that the opinion did not consider whether Riley-Jamison could be held personally liable for the firm’s actions.