School administrator demoted while undergoing addiction treatment: Disability discrimination: Lost earnings, benefits: Verdict

Law Reporter, Sep 1998

School administrator demoted while undergoing addiction treatment: Disability discrimination: Lost earnings, benefits: Verdict.

Heiserman v. Lemon Grove Sch. Dist., Cal., San Diego County Super. Ct., No. 707805, May 29, 1998.

Heiserman, 57, was a 25-year employee of the Lemon Grove School District. While she was undergoing inpatient treatment for prescription drug addiction, the school reassigned her from director of student services-an administrative position at which she had earned about $65,000 annually-to school psychologist. The new position paid $52,000 annually plus stipends.

Heiserman sued the school district, alleging defendant had demoted her because of her addiction. Plaintiff claimed defendant had known about her disability and had failed to offer her a reasonable accommodation, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and the California Fair Employment and Housing Act, CAL. GOV'T CODE 12940.

The jury awarded about $216,700.

Plaintiff's posttrial motions for attorney fees and costs and defendant's motion for judgment n.o.v. are pending. Plaintiff's experts included John Sack, addiction medicine, La Jolla, Cal., and Patrick Kennedy, economics, San Diego, Cal.

Plaintiff's Counsel:

*Robert A. Waller Jr., San Diego, Cal.

[ Comment: See also Doiwchi v. Princess Cruises, Inc., Cal., Los Angeles County Super. Ct., No. BC 161733, Mar. 13, 1998. There, Doiwchi--who had a learning disabilitywas fired shortly after returning from a three-month leave of absence for cancer surgery and treatment. Her employer cited unsatisfactory performance. A 54-year-old accounts payable clerk, she had been earning about $21,000 annually plus benefits. She suffered emotional distress.

Doiwchi sued her former employer, alleging defendant had fired her on the basis of her mental disability and had failed to accommodate her disability, in violation of the ADA. Plaintiff presented evidence she had received satisfactory or better performance evaluations for five years.

The jury awarded $300,000. Attorney fees brought the award to $470,000.

Plaintiff's experts were Jennifer Zvi, learning disabilities, Woodland Hills, Cal., and Raymond Schultz, economics, Pasadena, Cal. *Robert A. Rees and Emily Peters, both of Los Angeles, Cal., represented plaintiff.

In Johnson v. Oregon, _ F.3d _, No. 96-36191,1998 WL 181297 (9th Cir. Apr. 20, 1998), the Ninth Circuit held neither application for nor receipt of disability benefits automatically barred an employee from suing her employer under the ADA. The court noted a contrary rule would frustrate the ADA's purpose by forcing plaintiffs to choose between enforcing their rights under the statute and seeking immediate subsistence benefits. *Michael Duane Brown, Salem, Or., represented plaintiff.]

[Documents in Johnson are available through the Court Documents section at p. 276, courtesy of Mr. Brown.]