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A federal magistrate judge has refused to overturn a jury’s $200,000 verdict in a suit under the Americans with Disabilities Act brought by a woman who claimed that she was chosen for lay-off because her employer perceived her to be disabled due to a chemotherapy-related memory impairment. In his 28-page opinion in Eshelman v. Agere Systems Inc., U.S. Magistrate Judge Timothy R. Rice found there was sufficient evidence to support the jury’s conclusion that Agere had perceived plaintiff Joan Eshelman as “substantially limited in the major life activities of working and thinking.” Rice found the evidence showed that when Eshelman reminded Agere in 2001 of possible memory lapses that might temporarily impact her ability to travel to new job sites located between 45 minutes and 75 minutes from her residence, Agere had “without explanation removed Eshelman from the list of employees who would be offered jobs as part of a companywide restructuring.” The ruling is a victory for plaintiffs attorney Ronald H. Surkin of Gallagher Schoenfeld Surkin Chupein & DeMis who has filed a motion seeking an award of more than $168,000 in attorney fees and costs. According to court papers, Eshelman began her career in 1981 with Agere’s predecessor company, Western Electric. Over the next 20 years, she advanced through the company, eventually holding the position of supervisor of the chief information office of Agere’s Reading, Pa., facility. In 1998, Eshelman was diagnosed with breast cancer and took a six-month leave of absence. When she returned to work in March 1999, Eshelman told her supervisors that she was having problems with her short-term memory — a condition she attributed to her cancer treatment and referred to as “chemo brain.” Eshelman testified that she was able to compensate for her memory deficit by carrying a notebook and making sure she took more notes than she had previously. Rice found there was no dispute at trial that Eshelman excelled at her job despite the memory impairment, earning outstanding performance appraisals, promotions, raises and bonuses. But just four months after Eshelman returned to work, Rice found that Agere suffered a “business downturn” that resulted in the lay-off of 18,000 employees worldwide and the closure of its manufacturing operation in Reading. As part of a company-wide reduction in force, Eshelman was selected for lay-off effective December 2001. Agere’s handling of that process, Rice said, was “the primary focus at trial.” Testimony from Eshelman’s bosses showed that they had discussed her difficulties in traveling before they reduced her score from one of the highest to one of the lowest. Rice found that the supervisor who made the ultimate decision that Eshelman should be laid off testified that his concern about Eshelman’s ability to travel was one of three factors he considered, and that “the concern was based on his knowledge that Eshelman had expressed difficulty with travel to new destinations as a result of a condition related to her treatment for breast cancer.” In post-trial motions, defense lawyers argued that Eshelman failed to establish at trial that Agere regarded her as having a disability. “At best, plaintiff’s supervisors regarded her as being unable to drive long distances or commute to work. Driving and commuting to work, however, are not major life activities, and the inability to perform those activities does not substantially limit any recognized major life activity, such as working,” attorneys David S. Fryman and William K. Kennedy of Ballard Spahr Andrews & Ingersoll argued. The defense team also argued that Eshelman failed to establish that she had a record of a disability or that Agere discriminated against her based on a record of a disability. “The only record of any limitation on plaintiff’s ability to perform her duties was her six-month leave of absence from September 1998 until March 1999. A temporary leave of absence with no residual impact on plaintiff’s performance does not constitute a record of a disability,” they wrote. But Rice found that the jury had sufficient evidence to reject all of Agere’s defenses. “In one sense, the evidence can be viewed as proving that Eshelman demonstrated nothing beyond a temporary inability to work, with no residual limitations on her ability to work or think. … Moreover, Agere regarded Eshelman as a valued employee and promoted her to a higher pay grade,” Rice wrote. “Yet the jury apparently rejected this evidence and concluded that the record of Eshelman’s cancer and ensuing memory problems precluded her from retention in Agere’s restructured workforce,” Rice wrote. Eshelman’s “most powerful evidence,” Rice said, was “the abrupt reversal of Eshelman’s score in the ranking of employees scheduled for layoff.” The evidence at trial, Rice said, showed that Eshelman “plummeted from the top of the list to the bottom of the list of favored employees after upper management learned of her memory-related travel concerns.” As a result, Rice said, the jury “could reasonably conclude this established a record of an impairment substantially limiting Eshelman’s ability to think and work.” Although witnesses for Agere insisted at trial that Eshelman’s new score resulted from the company’s focus on skills needed for the remaining jobs — and not past performance — Rice found that “the jury weighed Agere’s justification and found a discriminatory motive in Agere’s action.” Rice also rejected the defense’s argument that he should grant a new trial due to his erroneous jury instructions. Fryman and Kennedy argued that Rice had erred by failing to instruct the jury that driving and commuting are not major life activities. Rice disagreed, saying, “although I declined to instruct the jury on which activities, such as driving and commuting, are not major life activities, I properly instructed the jury on the two theories of recovery at issue in the case.”

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