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A federal judge in Pennsylvania has refused to dismiss a suit under the Americans with Disabilities Act brought by a woman who suffers from fibromyalgia and chronic fatigue syndrome after finding that her symptoms could result in a “substantial impairment of a major life activity.” In Alifano v. Merck & Co. Inc., U.S. District Judge J. Curtis Joyner of the Eastern District of Pennsylvania rejected a defense argument that the plaintiff did not meet the ADA’s definition for disability because she is claiming nothing more than an inability to work any longer than an eight-hour day or to travel for work. But in a second significant holding, Joyner dismissed all of Michele Alifano’s claims under the Family and Medical Leave Act after finding that she was complaining only of “interference” with her FMLA rights, but not that she had suffered any actual violation of those rights. As a result, the opinion provided victories to both sides. In greenlighting Alifano’s ADA claim, Joyner found that her lawsuit satisfied the federal courts’ liberal pleading standards and that defense lawyers were misreading her claim. “The complaint clearly states plaintiff’s disability as fibromyalgia and chronic fatigue syndrome,” Joyner wrote. Joyner noted that Alifano’s suit alleges that she “is disabled within the meaning of the ADA” and that her symptoms include “chronic fatigue, body aches and pains, headaches, nausea, palpitations, lightheadedness and insomnia.” The suit also says Alifano’s symptoms “intensified to the point that they were interfering with her major life functions, including her work.” Such a claim, Joyner said, is “sufficient to satisfy the disability element of a claim under the ADA.” Alifano was hired by Merck & Co., based in Whitehouse Station, N.J., as a security investigator in January 1998. The job required her to spend a large percentage of her time traveling throughout the northeastern United States. In early 1999, Alifano became seriously ill with what was later diagnosed as fibromyalgia and chronic fatigue syndrome. She began a medical disability leave of absence in late June 1999. In mid-September 1999, Alifano told Merck that she could return to work with restrictions — she could not work more than eight hours a day; and she could no longer travel for work except to and from the office. Over the next four months, Alifano repeatedly asked Merck when she could return to work. Each time, the suit says, the company told her that it was trying to find a suitable position for her. Alifano applied for several other positions at Merck, but without success. In December 1999, Merck offered her a security investigator position in Los Angeles, but Alifano says she declined the offer because it did not accommodate her medical restrictions. Merck stopped paying her a salary in January 2000, but kept her under its employ to give her time to apply for other positions within the company. But when she hadn’t returned to her security investigator position by late July 2000, the company deemed her to have abandoned her job and terminated her employment. In the suit, Alifano’s lawyer, Anne E. Hendricks of Michael I. Levin & Associates in Huntingdon Valley, Pa., argued that Merck violated her rights under the FMLA in seven ways: – Failing to provide adequate notice of her FMLA rights. – Failing to provide adequate written notice explaining the specific expectations and obligations and the consequences of a failure to meet these obligations. – Discouraging her from exercising her FMLA rights. – Failing to engage in the “interactive process” with her. – Discriminating against her on the basis of her serious health condition. – Failing to provide her with reasonable accommodations. – Wrongfully firing her because of her disability and her attempt to exercise her rights under the FMLA. But Judge Joyner found that none of the alleged violations are actionable. The FMLA gives workers the right to take up to 12 work weeks of leave during a 12-month period for a serious health condition. At the end of the leave period, the employee has the right to be restored to her former position or an equivalent position. Joyner found that Section 2615(a)(1) of the statute prohibits employers against interfering with a worker’s FMLA rights and that Section 2615(a)(2) prohibits firing workers who oppose practices that the FMLA makes illegal. But Joyner found that courts “have refused to recognize a valid claim for interference in the absence of any injury.” To state a valid claim for interference with FMLA rights, Joyner said, the worker “must claim that the alleged interference caused her to forfeit her FMLA protections.” Alifano’s claim fell short, Joyner said, because her suit does not allege that Merck denied her entitlement to leave or failed to restore her to her previous position. “Thus, she has not successfully alleged any forfeiture of her FMLA rights. Since the plaintiff has failed to allege any FMLA violations, the court finds that her claim regarding defendants’ interference with her FMLA rights do not state a claim upon which relief can be granted,” Joyner wrote. Hendricks argued that Merck discriminated against Alifano on the basis of her serious health condition, failed to provide her with reasonable accommodations, and wrongfully terminated her because of her disability and her attempt to exercise her FMLA rights. But Merck’s lawyer, Michael S. Burkhardt of Morgan Lewis in Philadelphia, argued that under the FMLA, an employer is under no obligation to provide reasonable accommodation to an employee returning from medical disability leave. Joyner agreed, saying “unlike the ADA, the FMLA does not require an employer to reasonably accommodate an employee’s serious health condition.” Federal regulations, Joyner said, “make clear that if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.” Since Alifano could not return to work and perform her job, Joyner found that “terminating her employment did not amount to any violation of the plaintiff’s FMLA rights.” Joyner found that FMLA retaliation claims under Section 2615(a)(2) are analyzed according to the McDonnell Douglas burden-shifting framework and that the plaintiff must show three things — that she is protected under the FMLA; that she suffered an adverse employment action; and that a causal connection exists between the adverse employment action and the exercise of her rights under the FMLA. Alifano failed the first prong of the test, Joyner found, because she was not qualified for her job at the time of her termination. Because Alifano was unable to work more than eight hours in a day and could not travel, Joyner found that she was “unable to fulfill an essential function of her job.” As a result, Joyner said, Alifano was legally “not qualified for her position,” and therefore can’t claim to have suffered an “adverse employment action” under the FMLA.

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