CASE RESULTS

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

Some cases and clients remind us why we do what we do.  This was one of them.

C was a young man who came to our office with a problem.  He’d had a slow growing lump on his knee for several years.  C had done the right things; he’d been to multiple orthopedic physicians, and one in particular on multiple occasions.  The recent doctor had performed some testing (of so C thought), and had determined that the mass was benign (non-cancerous).  C was a composer, who was in graduate school and lived at home with his single mother.  He was her only child.

Unfortunately the mass was not benign; it was a rare form of cancer known as a synovial sarcoma.  And within a year from his last appointment with the orthopedic physician, C’s mass had grown significantly in size.  When he came to see us he had just been told that he had cancer.

We immediately gathered C’s medical records and retained the nation’s foremost experts on synovial sarcomas.  What we collectively found was that the orthopedic physician had failed to follow up on a basic diagnostic test that could have confirmed the presence of the sarcoma early on; and significantly improved the likely outcome.

We accepted C’s case and filed a lawsuit.  Several months into the suite C’s condition worsened significantly.  His cancer had metastasized, and he had been given a poor prognosis.  We had a conversation with C in our office, during which he asked that we do whatever we could to take care of his mother.  We pledged to do whatever we could for her.

C passed away while the case was still going on.  We amended the case to have C’s mother appointed as administrator of his estate and continued to pursue the case vigorously.  We used our experts to help prepare for the deposition of the doctor, which established that he never took appropriate follow up steps to ensure that the mass was benign.

We were prepared for trial when the doctor’s attorney approached us about mediation.  C’s mother was devastated by the loss of her son, and we knew that putting her through a trial would be extremely painful.  We went to mediation and settled the case for nearly one million dollars. 

The settlement did not ease C’s mother’s pain; but it did ensure that she was taken care of, as C had asked.  At the end of the case she gave us a large and long hug.  

We are confident that the medical practice of the doctor has evolved, and that the doctor will never make that mistake again.

This is why we do what we do.

Practice area(s): Medical Malpractice

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

$915,000 MEDICAL MALPRACTICE/WRONGFUL DEATH SETTLEMENT

It started as most things do, with reasonable intentions. In this case the victim, a gentleman in his mid 70’s—highly educated, highly successful—was diagnosed with a recurrent form of cancer. Upon learning of the diagnosis, he did what most of us would do, and called an oncologist.Our client had no reason to believe that the oncologist, or the office staff, would provide anything other than top-notch services. Unfortunately this was not the case. Instead, when he went to the office to receive a scheduled dose of chemotherapy he received a substantial overdose.

IN THIS CASE, NEGLIGENCE HAD TRAGIC CONSEQUENCES

The effects of the overdose were quick and severe. Our client lost his ability to communicate, lost his ability to comprehend basic information. He became a shell of his former self, until he passed away some two months later.

Our client’s distraught family came to us in a time of need. Wrongful death and medical malpractice cases are often commenced during periods of severe stress for the family of the victim. Part of our job as the attorneys is to recognize this stress, and remove as much of the burden as possible from the family.

In this instance, we immediately went about having the victim’s spouse appointed as administrator of his Estate. While this was ongoing, we obtained all of the relevant medical records and had them reviewed by our medical experts who confirmed what we already knew from experience: that malpractice had occurred.

WE FILED A MEDICAL MALPRACTICE LAWSUIT AS SOON AS WE WERE ABLE

Once this process of having the spouse appointed as administrator was complete we proceeded to prepare and file a complaint in the New York State Supreme Court. The Complaint was the initiating document in the wrongful death/medical malpractice lawsuit. After the lawsuit had been filed we aggressively went after the medical practice, seeking to obtain as much information as possible about the individual who made the error, how the error occurred, and what policies (if any) the office had in place to prevent such an error.

We then proceeded with a deposition of the Plaintiff, in this case the administrator of the estate, and were set to take the deposition of the defendant when his lawyers came calling, seeking to settle the case.

Settlement negotiations were drawn out over several weeks, and ultimately culminated in our obtaining a nearly seven-figure settlement for the victim’s estate. The entire case, from the date of the victim’s death to receipt of the settlement, took nearly two years.

Will the settlement it bring him back? Obviously not. Will it, in some way, help the family? We hope so. Will it ensure that this sort of thing doesn’t happen again in this particular office? We believe it will.

Practice area(s): Medical Malpractice

$210,000 JURY VERDICT – A CASE STUDY IN PODIATRIC MALPRACTICE

Do you have questions about podiatry malpractice in New York?  Visit our New York Podiatry Malpractice Video Library for more information, or contact us today.

KF is a parent.  A wife.  An employee.  A nice woman.

She’d had some issues with her feet in the past.  Bunions, occasional discomfort.  Nothing major. 

She was referred to a local podiatrist.  He seemed nice.  He told her she had a hallux valgus – not that she knew what that was.  It meant that she had a bunion.  He told her that he would just “shave some off,” and “clean things up.”  She’d be up and running (or, in her case, playing in the local co-ed softball league) again in no time.

Except that’s not what happened.

Instead the doctor “shaved” too much bone, which caused KF to develop a hallux varus – picture your toe floating out away from your foot. 

But her doctor didn’t notice it; or at least he didn’t pay attention to it.  After the surgery she went back, again and again, complaining that it just didn’t look right.  She took pictures.  He continued to tell her that it was “healing well.”  He did not take any post-surgical precautions, such as strapping, taping or padding.  Her foot healed the wrong way.

Eventually KF went for a second opinion.  She immediately learned that she had a problem.  Her hallux varus was causing her pain and difficulty walking.  She needed to have a surgical fusion and bone repair.  The recovery would not be quick. 

KF had the surgery, and the recovery was not quick but she did recovery.  Except that she continued to walk with a slight limp in her step – her gait was off.  And this caused her discomfort, back pain.  She had to see a chiropractor for the first time in her life. 

The pain did not ruin her life, but it made things more difficult.  And that was a problem.  A problem that could have been avoided had her podiatrist handled her case properly. 

KF came to us because she had been told in no uncertain terms that something wasn’t right.  But in New York, feeling that something is not right does not give you the ability to pursue a medical malpractice lawsuit.  That can only be accomplished by having an expert physician review the case.

Step One – The Case Review

Our first step was to obtain a certified copy of the entire record of KF’s podiatrist – including copies of his films.  This is crucial – the certified copy is an attestation by the doctor that the record being provided is an exact copy of the original chart.  This can become critically important if later, when the original chart is produced and reviewed, something is missing or was not disclosed. 

Once we received the record we performed first our own internal review, which confirmed what we believed – that the doctor was not paying attention to KF’s complaints.  Now, one thing we know from experience is that the medical records almost never accurately reflect the concerns that the patient conveys to the doctor – most doctors hear so many patient concerns that they simply become desensitized to them (this does not make the failure to accurately record these concerns acceptable).  And KF’s case was no different – the records did not reflect the complaints that she actually made during visits.

Fortunately for KF she had kept photos of the condition of her foot during her post-operative care.  These became critical later on.

Despite the poor record keeping, however, the physician that we retained to review the records and films was unequivocal – the doctor had deviated from accepted medical standards of care in his treatment of KF, both during the operation (by removing too much bone) and post-operatively (by ignoring her complaints and not taking proactive measures to attempt to repair the hallux varus).  We then had what we needed to file the malpractice lawsuit.

Step Two – The Lawsuit and Depositions

As often happens, however, KF’s doctor did not agree that he had made mistakes in her care.  He thought his care was perfect. 

We took his deposition, during which despite acknowledging her complaints and his failures, he stood by his position that he did not make any mistakes. 

His lawyer took KF’s deposition, during which he asked her many questions about the complaints she had made post-operatively, the photographs she had taken and subsequent care.  We believed that she was a good witness – very credible.  We believed that after the depositions it would be appropriate for the doctor to settle the case; to acknowledge, without saying so, that he made some mistakes in her care.  Not just judgment errors; but actual mistakes. 

He did not agree.  We made a reasonable settlement demand, less than $200,000.  He refused to make any offer in response. 

Step Three – The Trial

So, we prepared the case for trial.  We prepared with our expert witness, a brilliant podiatric surgeon, and flew him in for the trial.  We coordinated with KF’s chiropractor, and had him come in to the trial as well.

During jury selection, we asked the potential jurors about their experiences with doctors, about whether they thought that, on some occasions, doctors made mistakes.  About whether they could give KF a fair shake, and make a finding against the doctor if we proved that he made mistakes.  They assured us that they could.  We were satisfied. 

The trial went on for nearly a week.  We presented KF’s case, going through each of her visits with her, discussing the complaints that she made and the doctor’s responses.  We then called her chiropractor as a witness, and asked him about her gait and what she could expect moving forward.  We introduced her medical records into evidence.  Then we called our expert to the stand.

Our expert went through the anatomy with the jury.  He taught them about the foot, and about what a hallux varus was, how it developed, and how it could be treated.  In the end, he told the jury that KF’s doctor made some mistakes – he showed them the x-rays and showed where the mistakes had occurred. 

For his part KF’s doctor put up a good defense.  He had his own expert come in and say that he had not done anything wrong.  We cross-examined the expert, and pointed out where we thought the mistakes had happened.  We got the expert to admit that maybe the care was not quite as good as the jury had been told.

When we finished with the testimony the lawyer for KF’s doctor got up first and told the jury about why the doctor did not make any mistakes, about how what happened to KF was a known risk and could have happened to anyone. 

We then told the jury our story.  About how KF tried to be her own advocate, about how she tried to tell the doctor about the problems that she was having.  About how he didn’t listen because he believed that she was fine.  We talked to the jury about what the proof – the photos, the x-rays, the records – really showed.  That KF’s doctor made mistakes in performing a relatively simple bunionectomy; mistakes that were not known and ordinary risks; mistakes that should not have happened.

Step Four – The Verdict

The jury deliberated for three + hours.  In the end, they came back and said that they had determined that the doctor had made mistakes; that he had committed malpractice and that his malpractice had caused KF to be injured.  They awarded KF $210,000 in damages.  More than she had asked the doctor’s insurance company to pay before the trial. 

Money did not solve KF’s foot problems.  It did not make it easier for her to run, or play with her son, or take a long walk without pain.  It did, however, prove to her that sometimes people are held accountable for their mistakes.  And it gave her some assurance that maybe the next time someone complains to this doctor about a problem he will stop what he’s doing, pay attention, and fix it there.  And maybe other doctors who read or heard about the jury verdict will do the same, and maybe someone else will be spared the problems that KF had because of her actions. 

If you have questions about podiatric malpractice contact us today.

Practice area(s): Medical Malpractice

Court: Rensselaer County Supreme Court

JURY VERDICT FOR WHISTLEBLOWER

New York State laws protecting whistleblowers are tough on Plaintiffs.  The burden to succeed is high, and many cases are either dismissed or lose at trial.  Not so in the case of an asbestos removal employee.

Our client was a former employee of an asbestos removal company who had observed what he believed to be illegal and improper removal from multiple job sites.  He complained to his supervisors, but nothing was done.

One day while at home in between work assignments our client received a call from a co-worker, again complaining about what he thought was questionable removal of asbestos.  Our client went to the site, retrieved the bag of asbestos, took a photo of it and texted it to his employer.  He was terminated.

We litigated the case through discovery and trial.  After a six day trial the jury returned a verdict in only forty minutes for our client.  

The court will make a determination of damages, but in this case attorneys fees are recoverable for a successful plaintiff.  Attorneys fees provisions in certain laws make it easier for plaintiffs’ attorneys to bring lawsuits in cases which may otherwise be cost prohibitive.  

TBD

  Scott Peterson  by Scott Peterson |  | Connect with me: 

Representing plaintiffs in employment and serious injury matters.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

CONFIDENTIAL SETTLEMENT IN GENDER/RACE DISCRIMINATION CASE

D’Orazio Peterson was able to successfully negotiate a confidential settlement on behalf of multiple women who had been wrongfully terminated from their employment.  The claims arose out of the terminations of multiple women, each of whom had recently been pregnant, and each of whom had been terminated by a supervisor of a different race.  

The settlement was reached after extensive litigation, including fighting off efforts by one of the defendants to have the case dismissed very early on.  Ultimately that effort was defeated, which led to extensive efforts to obtain documents and witness statements supporting the claims that our clients had been terminated for illegal reasons.  This included obtaining a jail house deposition from a former employee of the defendant who was incarcerated.

At the end of discovery the parties sat down and were able to come to a satisfactory resolution of the claims.  

If you have questions about a potential gender, race or discrimination lawsuit please feel free to give us a call.  We’re happy to speak with you.

Confidential

  Scott Peterson  by Scott Peterson |  | Connect with me: 

Representing plaintiffs in employment and serious injury matters.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

REINSTATEMENT FOR A TEACHER IN AN AGE DISCRIMINATION MATTER

 (2013) Settlement including reinstatement for a teacher in an Age Discrimination matter.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

A DISABILITY DISCRIMINATION CASE FOR A WOMAN WHO ALLEGED THAT SHE WAS TREATED POORLY

(2012) Settlement, pre-suit, in a disability discrimination case for a woman who alleged that she was treated poorly by her employer as a result of a hearing disability.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

FEMALE CLIENT TERMINATED AS A RESULT OF A DISABILITY

(2012) Settlement in a discrimination case for a woman who alleged that she was terminated as a result of a disability. This case was settled despite a dismissal by the EEOC.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

AGE DSCRIMINATION CASE FOR A MAN IN HIS LATE 50S

(2012) Settlement in an Age Dscrimination case for a man in his late 50’s who claimed that he was terminated from his employment because of age. The Defendant denied liability, and asserted that the gentleman was fired for poor performance.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

STATE WORKER A VICTIM OF SEXUAL HARASSMENT

(2012) Settlement in a sexual harassment case for a state worker who was the victim of harassment at the hands of a supervisor.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

SEXUAL HARASSMENT CASE AGAINST A LARGE CORPORATE EMPLOYER

(2012) Settlement, pre-suit, in a sexual harassment case against a large corporate employer for a young woman who alleged that she was harassed for a brief period by a co-worker.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

CLIENT TERMINATED FROM HIS EMPLOYMENT BECAUSE OF HIS GENDER

(2011) Settlement, pre-suit, in a reverse gender discrimination case for a young man who asserted that he was terminated from his employment because of his gender.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

NATIONAL ORIGIN DISCRIMINATION CASE, FOR AN AFRICAN IMMIGRANT

(2012) Settlement in a National Origin Discrimination case, for an African immigrant who alleged that he was harassed by his supervisor, causing him to leave the company.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

FMLA VICTIM WHO WAS TERMINATED FOR EXCESSIVE ABSENTEEISM

(2012) Settlement for a FMLA victim who was terminated for excessive absenteeism following her FMLA protected leave.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

FMLA VICTIM WHO WAS TERMINATED

(2012) Settlement for a FMLA victim who was terminated after having exhausted her FMLA leave time.

JUNE 2013

D’Orazio Peterson founding partner Scott M. Peterson recently obtained a $210,000 jury verdict for a Plaintiff in a medical malpractice trial in Rensselaer County. The trial, which involved a claim that a foot doctor failed to properly treat a post-surgical complication, lasted one week, after which a six member jury deliberated for nearly five hours before rending a verdict for the Plaintiff.

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

FORMER EMPLOYEE ASSERTED RIGHTS UNDER FEDERAL WHISTLEBLOWER LAWS

(2013) Confidential Settlement for a former employee of a large national corporation, who asserted rights under Federal Whistleblower laws.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

HOSPITAL ASSAULT VICTIM RECEIVES SETTLEMENT

Victims of hospital and nursing home abuse and assault are often concerned that the insurance company for the facility won’t settle their case.  For this reason we tell every client that they should prepare as though the case were going to go to trial.In this case we nearly went to trial until the insurance company wisely negotiated a confidential settlement (satisfactory to our client) just days before trial was scheduled to begin.Our client was a young woman who was sexually assaulted by another patient while an inpatient at a hospital.  In some cases this young woman would have been out of luck against the hospital, but we were able – through the “discovery” process of the lawsuit – to obtain information suggesting that the hospital staff knew, or should have known, that the individual who assaulted our client had a propensity towards such behavior.   This knowledge by the staff was key in establishing an argument that the hospital should have taken measures to ensure our client’s safety, such as monitoring the assailant or moving him to a different part of the facility.  Policies that we obtained from the hospital during the discovery process showed that they could and should have done more.

In this case the hospital’s insurance company took a firm position from the outset.  We litigated the case for nearly two years, obtained strong expert witnesses, and fully prepared for trial.  Just days before that trial was set to begin we were able to obtain a very positive result for our client.

If you or a family member have questions about hospital or nursing home negligence please feel free to request a copy of our free book, on this page.  Otherwise fill out the contact form on this page or give us a call.  We’re happy to help in any way we can.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

MEDICAL NEGLIGENCE CASE FOR A YOUNG WOMAN WHO WAS BURNED

(2012) Settlement in a medical negligence case for a young woman who was burned when a hospital neglected to remove a heat pack from her back following surgery.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

INJURIES AS A RESULT OF A FALL FROM A RAMP WHILE AT WORK

(2012) Settlement in a personal injury case for a man who suffered very minor injuries as a result of a fall from a ramp while at work.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

WOMAN PHYSICALLY ASSAULTED BY A CO-WORKER

(2012) Settlement in an assault case for a woman who alleged that she was physically assaulted by a co-worker.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

FMLA VICTIM WHO WAS TERMINATED WHILE OUT ON FMLA LEAVE

(2012) Settlement for a FMLA victim who was terminated while out on FMLA leave. This settlement occurred pre-discovery, and included reinstatement with accrued benefits.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

SETTLEMENT IN DISABILITY DISCRIMINATION ACTION

We frequently discuss the relationship between the Family and Medical Leave Act (“FMLA”) and New York state and federal laws governing discrimination based upon disability.  While the laws can in some cases each work in favor of a plaintiff, knowing when to pull back some claims is important.

Here, we represented an individual who suffered a severe on-the-job injury, and was unable to come back after his 12 weeks of FMLA time expired.  Shortly after the expiration of the 12 weeks our client was terminated from his employment, with the employer taking the position that it had permitted him the required leave, and his failure to return at the end of that leave allowed termination.

Our observation, in speaking with the client and reviewing the records, however, was different.  We determined that the employer had failed to engage in the “interactive process”, which is required under the New York State Human Rights Law.  This process requires, generally, that employers and employees discuss what sort of reasonable accomodations may permit an employee to return to work following a disability.  Here, the employer had made no such effort.  In this case we elected not to pursue an FMLA discrimination or retaliation claim, and instead focus on the New York State law disability discrimination claim – the stronger claim.

Shortly after suit was filed the matter was settled for a confidential sum.  The critical point in this case was the fact that the employee, while not protected under the FMLA, arguable had rights under the New York State Human Rights Law.  By ignoring these rights the employer placed itself at risk of an adverse verdict if the case went to trial.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

$396,000 JUDGMENT FOR CIVIL ASSAULT VICTIM

In this case our client was a young woman who, through no fault of her own, was brutally assaulted outside of a bar one evening.  Our client suffered severe injuries, which required surgery and implantation of hardware – which is permanent.

We proceeded to bring a lawsuit against the owner of the bar where the incident happened, as well as the individuals responsible for the assault.  The matter against the bar owner was settled after extensive discovery for a confidential amount.  As against the individuals, following  a hearing a judge issued a default judgment just under $400,000.

If you have suffered a significant injury feel free to give us a call, we are happy to help.

$396,000

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

SETTLEMENT FOR VICTIM OF ASSAULT

Plaintiff was the victim of a vicious assault at the hands of two individuals, leaving her with permanent injuries.  We commenced an action against the individuals, as well as against the facility where the incident occurred – alleging that the facility knew or should have known that the assailants were waiting outside for plaintiff prior to the assault. 

The facility aggressively contested liability, but ultimately when faced with the prospect of a trial settled the case with the plaintiff following a contentious mediation. 

The plaintiff, unfortunately, will never be made whole, but the settlement at the very least has helped establish some sense of justice having been served. 

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

WOMAN STRUCK BY A FALLING OBJECT AT A LOCAL GROCERY STORE

(2013) Settlement in a personal injury case for a young woman who was struck by a falling object at a local grocery store.

JUNE 2015

DISCLAIMER: The results are specific to the facts and legal circumstances of each of the clients’ cases and should not be used to form an expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

YOUNG WOMAN STRUCK BY A FALLING OBJECT OUTSIDE OF A BUILDING IN THE CITY OF ALBANY

(2013) Settlement before trial in a personal injury case for a young woman who was struck by a falling object outside of a building in the City of Albany.

A “typical” example of pregnancy based sex discrimination situation is a former client of ours, a young woman (we’ll call her Sarah), age 29, who had worked as an architect for the “Smith Company” for five years.  Smith Company had about twenty employees, and was known throughout New York for its cutting-edge architecture work.

Sarah had a positive work history, had never received any negative performance reviews and, while occasionally “butting heads” with the owner of the company, had generally gotten along well with her co-workers.  Sarah was a very bright and capable architect. 

Sarah and her husband decided to start a family.  When she was four months pregnant she felt it appropriate to inform her employer.  She was initially met with what could best be described as a cool reaction disguised as excitement.  During the initial conversation, the owner, a single man, casually asked her if this meant she was going to start bringing her baby to work.  Sarah shrugged this off as a joke, but over the course of the next several months the passive-aggressive comments became more frequent.

Comments about her pregnancy began to occur with more frequency, such as “how can you see past that belly,” or “are you fully dilated?” (yes, we have seen this exact comment made in the workplace).  Then, towards the end of her pregnancy, her boss asked her if her husband planned to share in the “burden” of child rearing and suggested that perhaps her husband (a work from home freelance writer) would be interested in staying home with the child so that Sarah could focus on her job. 

By this point Sarah was about to have the baby, and was legitimately concerned about whether her employer had it out for her because of the pregnancy.  While she had heard that there have been maternity leaves in the past, she had never actually observed one take place.  Given her concerns, she decided to speak with her boss prior to going out on leave.  She asked him, point blank, if she would still have a job when she returned.  His response: “yes, of course, just call us a month or so before you come back.”

Sarah had the baby, took a brief maternity leave (she was the first woman in company history to take the leave), and was ready to return.  Only when she called a month ahead of time – as instructed – her boss wouldn’t take her call.  Instead he sent her an email, telling her to speak with the Vice President.  So, she called the VP, who told her that they were “seeing what they can do to fit her in,” as “business has slowed down” recently.  Sarah, now panicked, called her boss again.  When he finally got back to her, he told her sorry, but “due to a decrease in business we’re not going to be able to bring you back.”  But Sarah knows that they recently hired more employees.  Sarah is now left with a new child and no job.

When Sarah first contacted us she didn’t know what to make of the situation.  She had a newborn baby at home, was tired, and being a strong and intelligent young woman never expected to be the victim of pregnancy based sex discrimination.  Sarah, like many of the victims who come to see us, also felt that she was not “the kind of person” to file a lawsuit. (Link).

We sat with Sarah and reviewed her situation, including some exchanges with her boss that had taken place over email (always helpful).  We believed from our review that Sarah had claims for pregnancy based sex discrimination under both the Pregnancy Discrimination Act (link) (Title VII of the Civil Rights Act) as well as the New York Human Rights Law (link).

Following our discussion, we gave Sarah a few options.  First, she could do nothing and walk away.  Second, she could file a complaint of sex discrimination with the EEOC (link), and during the process see if her former employer would be interested in settling the claim.  Finally, Sarah could bypass the EEOC and file a complaint in New York State court for sex discrimination under the Human Rights Law. 

Sarah did not want to sue her former employer, but she also did not want to let this clear discrimination go.  Sarah felt (and we agreed), that it was important to let this (predominately male) so-called cutting edge firm know that its behavior was simply unacceptable in the 21^st century.  Knowing that Sarah did not wish to file a formal lawsuit unless necessary, we encouraged her to file a charge of pregnancy-based sex discrimination with the EEOC.

On Sarah’s behalf, we prepared and filed the EEOC charge.  The employer submitted its opposition, denying any wrongdoing, which we then reviewed in detail with Sarah to point out any clear inconsistencies in the positions that the employer had taken (note: they often taken inconsistent positions when they are trying to cover something up).  It became clear to us that while the employer was claiming it “let Sarah go” because of an economic slowdown and poor performance (raised for the first time after the EEOC charge was filed), there was no real proof to confirm this.

We filed a strong rebuttal to the employer’s EEOC response, in which we made it clear that their defenses were weak.  Shortly after we submitted the response we received a call from their attorney, wishing to discuss settlement. 

We were able to settle Sarah’s claim after about a month of back and forth negotiation.  Sarah was very pleased with the result and, we believed, we were able to send a strong message to her former employer that its behavior was unacceptable.  Sarah did not get her job back, but she was able to put herself in a strong position moving forward.

If you have questions about a case of pregnancy or sex discrimination give us a call.  We are happy to help.

*Note:  Because of confidentiality agreements this case study is a combination of multiple cases in which D’Orazio Peterson was involved.  Every fact contained in this case study is from an actual “real world” example.  

Questions about pregnancy discrimination?  Contact us today.

Practice area(s): Employment / Labor

Court: EEOC

“Melissa”

We were fortunate enough one day to receive a call from “Melissa”.  Melissa was a firefighter for a large New York city.  She had recently gone out on a medical leave after a series of events that would be difficult to believe if you didn’t know better.

Melissa – who had been a firefighter for approximately 15 years – was (per the publicly filed documents in the case) subjected to a course of sex discrimination over many years.  She claimed that she was passed over for promotion in favor of less qualified males, that she was harassed following a medical leave although males in the same position were not, was subjected to verbal sexual harassment so severe that it caused her to seek medical attention (including extremely disgusting statements by her male colleagues relating to, among other things, masturbation).  She had also, per the public documents, received not one but two notes in her locker depicting a head with a bullet going through.  Following the second threatening note she was placed on leave by the Fire Chief.  She was not permitted to return to work, and ultimately separated from the position.

Melissa had worked her entire adult life to become a firefighter.  She had attended the difficult New York State Fire Academy, and had completed the entire program based upon the same standards as her male counterparts – she did not get a “break” because she was a woman.  She had dealt with comments from the beginning of the academy, when it became immediately clear to her that some of the men did not want women in their ranks.  She fought through it all, kept her head high, and earned a reputation as a good and reliable firefighter.  When was put out on leave it devastated her. 

We saw Melissa’s case and immediately decided to get involved.  This was a classic (although more vulgar than most) situation of sex discrimination in a historically “male dominated” field.  We have seen this conduct many times, including in fire, police, assembly line, highway, corrections and other fields. 

In Melissa’s case, not only was she hurt, but she was angry – understandably so.  Not only had she lost a good income and retirement benefits (link), but she had worked hard, and was determined to improve the environment both at her former firehouse as well as others across the country.  She was willing to face public scrutiny, if need be, to get her story out. 

We knew that we needed to aggressively pursue the case, so we immediately filed a Notice of Claim (link) with the city, notifying them that we intended to move forward with a lawsuit as soon as we were able.  We also at the same time filed a complaint with the EEOC (link), alleging that Melissa was the victim of sex discrimination, sexual harassment and discrimination based upon a disability (when she was disciplined after taking a medical leave).  We later added a claim to the lawsuit alleging that the city also violated the FMLA (link) when it took her protected leave into consideration in refusing to promote her. 

When the time came, we filed a Federal Lawsuit on Melissa’s behalf, which was picked up by several papers and brought the matter to the public’s attention.  This type of exposure probably did more to help foster change than anything else.

After filing the lawsuit, we aggressively pursued obtaining documents from the city relating to discipline of other (male) firefighters, complaints, and performance records.  They often fought tooth and nail, but we fought too. 

In the end the city elected to settle the case, according to the local papers for more than $500,000. 

This was not a case about money.  This was a case about helping one person right a wrong and helping to foster change in an environment where change had not happened for a long, long time. 

Sex discrimination and sexual harassment in male dominated professions occurs much more than many people think, and in our experience the best (and often only) way to fight it and to change the culture is by exposing it for the world to see.

After the case was over Melissa was able to move on with her life, and is doing well.  We hope that by taking the action we did we’ve made it easier for a future women firefighter, whether her or somewhere else.  

Need help?  Contact us today.

Practice area(s): Employment / Labor

Court: Northern District of New York