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Federal Court Holds That Employee With Renal Cancer In Remission Is Covered Under The ADA

By on July 18, 2011 in ADA with 0 Comments

Michael Norton worked for defendant ALC in May 2008.  The company operated 200 facilities in twenty states involving assisted living services to the elderly.  Plaintiff worked at the Sulphur Springs, Texas location as a “Residence Sales Manager.”

Norton was diagnosed with renal cancer in April 2009.  He went on medical leave and underwent surgery on May 22, 2009.  He returned to work July 1, 2009.  One month later on August 1, 2009, ALC fired Norton allegedly because of poor job performance.  Norton challenged the firing and alleged that he was let go because he had taken medical leave and because he suffered from cancer.

This case focused on the recent Americans with Disabilities Act Amendments Act.  That law became effective January 1, 2009.  ALC filed a motion for summary judgment contending that Norton did not have any actual disability because his cancer was in remission and he had no disabling effects from it at the time he was fired.  The court reviewed the ADAAA and concluded that renal cancer, when active, substantially limits the “major life activity” of “normal cell growth.” The court held that whether his condition had been in remission was of no consequence. 

The federal court said:

The court’s conclusion that Norton’s renal cancer is capable of qualifying as a disability under the ADA is bolstered by the EEOC’s interpretation and implementation of the ADAAA.  The EEOC’s final regulations implementing the amendments provide a list of impairments that, because they substantially limit a major life activity, will ‘in virtually all cases, result in a determination of coverage under the [actual disability prong.]’ 29 C.F.R. 1630.2(j)(3)(ii) (effective May 24, 2011).  One of the impairments listed is ‘cancer’ because it ‘substantially limits [the major life activity] of normal cell growth.’ Id. at 1630.2(j)(3)(iii).

The court also rejected ALC’s attempt to distinguish plaintiff’s cancer  because it was not Stage III cancer.  The court found no support for such a distinction in the ADA.

The case can be found at Norton v. Assisted Living Concepts, Inc., 2011 U.S. Dist. LEXIS 51510 (E. D. Texas 2011).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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