In May of 2001, Cheryl was diagnosed with end stage renal failure and advised that she would require dialysis or a kidney transplant.  Thereafter, she was worked up for a kidney transplant, including a trip to Wisconsin to be typed for a possible dual pancreas and kidney transplant.

Cheryl disclosed her need for the kidney transplant to her supervisor upon her learning of it.

Within days of that disclosure, despite the fact that Cheryl had been a salaried, exempt employee throughout her employment, GSM suddenly indicated that she would be switched to an hourly, non-exempt employee which would lead to a reduction in her employment benefits, including sick time and short term disability benefits. In addition, a new job description was created changing her from a Purchasing Clerk/Junior Buyer to simply a Purchasing Clerk. Notably, the job duties in the newly created job description were the same as those she was performing as a junior buyer and many were the same as those being performed by the buyers as well. Her supervisor began treating her less favorably and her supervisor and the Director of Human Resources started having many closed door meetings.

On or about August 1, 2001, GSM claimed it decided to have a reduction-in-force (RIF), and on August 8, 2001, terminated ten (10) employees, including Cheryl Sweeney. GSM claimed at trial that Cheryl had been selected for layoff from her department because of her job duties and position as Purchasing Clerk, and because she was supposedly the “least effective” employee in her department. The evidence at trial was that another employee who had been hired as a Junior Buyer into the Purchasing Department where Cheryl worked – at most, 7 months earlier – was a less effective Junior Buyer, and in fact, was being trained by Cheryl to do his job at the time of her termination. In addition, there was strong evidence that the entire RIF had been created simply to find a way to terminate Cheryl Sweeney.

The wrongful termination claim was that Cheryl Sweeney was terminated for using her employer-sponsored health insurance benefits to pay for treatment leading up to her kidney transplant and her plan to continue to use her health insurance to pay for her impending kidney transplant, and that therefore, GSM terminated her to get her off of the health insurance for fear that the cost of the kidney transplant would increase its premiums. The medical procedure would have cost anywhere from $75,000 to $175,000 in 2001, with an estimated annual cost following the surgery in the $20,000 to $30,000 range, substantially higher than your average employee/insured.

Holding: On November 2, 2005 the jury found in favor of the Estate on the claim for wrongful termination and awarded damages as follows:

• Lost Wages & Benefits:            $55,000
• Compensatory:                         $150,000
• Enhanced Compensatory:       $275,000

The jury hung on Plaintiff’s claims for violation of RSA 354-A (disability discrimination) and violation of the Family and Medical Leave Act. Plaintiff’s counsel learned in a post-verdict meeting with five of the jurors, that the jury was 11 for the plaintiff and 1 for the defendant on the issue of disability discrimination. The disability discrimination case was scheduled for a two-week trial in April 2006, but the parties reached a confidential settlement prior to that date.