DAMAGES - possible trial due to complaint I filed with NYSDHR

[disabled9999]

What is the name of your state (only U.S. law)? NEW YORK

I filed a complaint with the NYSDHR stating that I had been fired 2 weeks after an accident at work/ restaurant. I suffered a herniated disc and am considered 'partially disabled' by my orthopaedist though I still work at another restaurant now. NYSDHR says I have 'probable cause' to take the case to a judge. After briefs and rebuttals, the NYSDHR rep told the other sides attorney that I was willing to dismiss the claim before going to trial for a settlement of about $3,000 solely for lost wages. The other side agreed.

There seems to be good reason to believe that my former employer is guilty of violating the americans with disabilities act and that I have sufficient proof to support that, to make a long story short. My feeling is that if the case goes to a judge they will get fined for violating this act if no other plus continue to pay legal fees and also still have to pay me for lost wages. They seemed overly excited to get this agreement signed and not revoked before the 7 day grace period after signing it expires.


Question 1: The NYSDHR rep stated that no monies can be tagged on to the other sides bill for 'punitive damages' when negotiating a settlement out of court with the NYSDHR. She did not say whether or not that is the case in court. I only worked at their establishment part time for about 9 weeks. My pay ranged from $100 - $250 a week. In my adversaries 'legal agreement' - they divided the monies between a regular paystub and a 1099. In the 1099 part they put that the monies were for 'pain and suffering'.

--- Can punitive damages be applied by the judge?
--- Can monies for 'pain and suffering' be applied by the judge?

I realize there is a tremendous chance that going forward with this will undoubtedly cause my adversary much more monies lost. However, I am only interested in what I can get, not how much money they will lose going forward. If I can not get any more, then I will settle now. I have tremendous evidence going forward including the former manager of the restaurant that could be subpoenaed.


QUESTION 2:
With the NYSDHR, can I offer up a settlement amount that is NOT solely based on lost wages that is not considered 'punitive damages'?

I would like to settle for $5,000 even though the 'lost wages' equals about $3,000. Why? They have lied about everything from day one including pretending the accident never happened. Plus it seems it will still be cheaper than going to trial.

Thank you!

 

[FlyingRon]

There's not nearly enough information here. The first question is whether your back injuries occurred on the first restaurant job we're talking about or not. I'm assuming not. Why were you fired? What accommodations did you require that weren't able to be provided?

Yes, a judge can award punitive damages in a court case. However, in a reasonable accommodation case, you've got to have some real bad faith on the employer in order to receive them. Further, you've got no "pain and suffering" claim here. The employer didn't cause your pain and suffering (and you're being distraught over being unemployed is not going to get you any money).

I suspect highly that you aren't entitled to anything more than the currently offered settlement amount and in fact you'll receive LESS at trial (in addition to the added expenses bringing such action are going to involve).

 

[commentator]

Many times companies will throw you a small amount to get you out of their hair, even if you don't have much of a case at all. Asking for more will likely do nothing but motivate them to take that amount and spend it on lawyers contesting your claim and you'll end up with nothing at all. It doesn't sound as though you've hit anything they're going to really have to pay big for, as you have been told, pain and suffering and emotional anguish aren't squat when it comes to court judgments about these kinds of violations. Especially with such a short duration of time worked there, they're liable to see someone who deliberately "injured" something during the very early stages of employment and tried to make a big score.

 

[disabled9999]

1) The back injuries occurred at the restaurant I was fired from.
2) They tried to sweep the whole thing under the rug so that their insurance rates wouldn't go up, especially after 2 other employees were hurt in the prior 4 weeks before my accident.
3) I didn't ask for any accommodations.
4) I have a copy of the email that terminated me whereby it specifically states that I am a risk and they can not have someone with a back problem working there.
5) The brief their attorney submitted to the NYSDHR was a complete fabrication and I proved that with tangible evidence.
6) I can easily show that I was fired for 'disability' and likely easily have the manager who fired me testify that the owners stated that they wanted me removed because I was disabled and they were afraid I might have another accident. She would also testify that they did this because they didn't want their insurance rates increasing. She is no longer a manager there and left on bad terms - so she is not their ally.
7) My case is a 'failure to accommodate' case.
8) I don't think a judge would look at it as though I purposely injured myself after a workmans comp judge said it was a real accident. Also, I told them I wanted to start working again right after being cleared from the dr. So there's nothing about me trying to get a big score until after they illegally fired me.
9) I worked 3 days after the accident occurred, then didn't work one week while awaiting the results of the tests, then let them know I was cleared to return to work that week.

Like in the movie Philadelphia, they fired Tom Hanks for one reason and tried to make it look like another reason. Isn't that why they were fined 1.5 million for punitive damages?

If the judge sees real bad faith on the employer, which is very likely here, what kind of money might I see for punitive damages?

 

[FlyingRon]

Since you refuse to answer the questions, we certainly can not help you. Your chances of getting any punitive damages is slim. You have to understand that Philadelphia is FICTION.
The case that sort of is claimed to be the inspiration (Bowers) only was awarded back wages and not punitive damages. The award was only $500,000 (not $1.5MM) and the magnitude only is that high because it reflects a much longer duration at a much higher salary than your job. Of course, the award is also entirely immaterial, because it never got paid. The parties settled privately and Bowers died two months before the award anyhow.

 

[cbg]

If you never asked for any accommodations, they have no obligation to accommodate you. While FMLA (which is not a factor here) puts the burden on the employer, under the ADA it is the responsibility of the employee to identify himself as needing an accommodation and requesting it; it is not the responsibility of the employer to assume an accommodation is needed.

 

[disabled9999]

CBG..

You can't lawfully fire someone for being disabled (after becoming disabled on the job) unless they are not able to do their job WITH accommodations. This would violate the Americans with Disabilities Act. If I didn't ask for any accommodations, I was able to do my job with or without any accommodations. They would have to prove I was not able to do my job with accommodations. Easy to prove that wasn't the case.

 

[disabled9999]

FR...

In the movie they clearly stated at the trial that there was a huge sum awarded for punitive damages. A sum much larger than lost wages. It's in the movie.

 

[disabled9999]

FR**************.

I thought I answered your questions...

The first question is whether your back injuries occurred on the first restaurant job we're talking about or not.
MY ANSWER: YES

Why were you fired?
MY ANSWER: I received an email stating I had back problems and they could not have someone on the job who had back issues. That was the termination email.

What accommodations did you require that weren't able to be provided?
MY ANSWER: none; I didn't need or ask for any.

They can only legally terminate me after being injured if I am not able to do my job anymore. Americans with Disabilities Act.

 

[cbg]

If this is a temporary disability, the ADA does not apply.

If it is a permanent one, the burden of proof, at least initially, would be on you to prove that but for your disability you would definitely not have been fired. It would not, at least initially, be their burden to prove another reason.

Even if you can meet that burden, you have not won the lawsuit lottery here. You would most likely receive lost wages for the time between when you were fired and when your new job started, and MAYBE a SMALL percentage over and above that. You will not be receiving punitive damages in the millions or even the thousands. With nine weeks employment, I wouldn't expect you to receive them even in the hundreds.

But what I told you is true. If you did not ask for accommodations then you do not have a "failure to accommodate" case. You might be one of those very rare creatures who actually does have a wrongful termination case IF the facts are exactly as you say and the employer's side of the story does not believably contradict it. But since you say you never asked for accommodations, "failure to accommodate" is right off the table.

 

[Zigner]

FR...

In the movie they clearly stated at the trial that there was a huge sum awarded for punitive damages. A sum much larger than lost wages. It's in the movie.

I just watched an interesting move about robots and AI last night...I don't expect that I'm going to run in to any robots that pass for human (in every way) any time soon.

Darn, that is "in the movie" too!

 

[FlyingRon]

FR...

In the movie they clearly stated at the trial that there was a huge sum awarded for punitive damages. A sum much larger than lost wages. It's in the movie.

What part of the MOVIE isn't real do you not understand? Bowers was not awarded punitive damages. The $500,000 was compensatory damages based entirely on the lost wages and that was vacated subsequent to a private settlement between his estate and the former employer.

 

[disabled9999]

CBG**************....

Correction on my part. My dr's orders stated I could not work more than every other day (= accommodation). I didn't ask for any accommodations from a physical standpoint such as while working my shifts whereby I was doing physical work.

I know for a fact that they want to settle so as to avoid additional costs for (1) litigation and (2) possible fines for violating one or more acts - as mentioned. They very much want to settle.

This is a case with the NYSDHR. The rep for them said no punitive damages could be tagged on from the arbitration standpoint, only lost wages.

Question 1: what if i told them something like... regardless of how much I can claim for lost wages, I will settle for $5,000. I get the feeling that can't be done in this kind of case (NYSDHR). I'm not talking about going to trial, just NYSDHR arbitration. If it could be done, I have zero doubt that they would oppose settling for this amount.

QUESTION 2: Who actually pays the damages here? The employer - out of their own pocket, or their insurance company?

Someone needs to buy FR the dvd.

 

[cbg]

You have indicated that you did not ask for any accommodations.

If you did not go to them and say, "My doctor says I can only work every other day; can we please talk about adjusting my schedule" then you did not ask for any accommodations and do not have a failure to accommodate case.

Make up your mind. You can't both have asked for an accommodation and not asked for one. Either you did or you didn't.

 

[FlyingRon]

Getting a non-standard schedule isn't necessarily to be a "reasonable" accommodation given the nature of the business involved. You're not getting punitive damages even if you eschew the DHR and go to court. It takes takes serious bad faith on the employers part to get punitive damages assigned.