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NUNES v. WAL-MART STORES

September 23, 1997

Vera L. Nunes, Plaintiff,
v.
Wal-Mart Stores, Inc.; Mike Black; and Rita Silva, Defendants.



The opinion of the court was delivered by: BRENNAN

 Background

 The plaintiff, Vera Nunes ("Nunes"), was fired from her sales associate position at the Ukiah, California Wal-Mart Store ("Wal-Mart") on October 27, 1995. For many years, including those in question here, plaintiff has suffered from syncopal episodes causing her to black out and lose consciousness on many occasions. Nunes first blacked out at work in the early part of 1994. (Nunes' Chronology, Defendants' Exh. 7). Thereafter, she continued to suffer blackouts, causing her to miss work from June 10, 1994 through August 5, 1994. (Id.). After returning to work at Wal-mart, plaintiff suffered several more on-the-job blackouts in February and March of 1995. (Id.). On March 3, 1995, plaintiff went on extended medical leave and never returned to work at Wal-Mart. (Nunes depo., p. 45:4-12).

 During her medical leave period from March 3, 1995 until her termination by Wal-Mart on October 27, 1995, Nunes was under the medical supervision of several different doctors who provided documentary proof of her illness to the Wal-Mart management. (Nunes depo., p. 68:20-69:6). While on leave Nunes suffered sixteen more blackouts. Plaintiff's doctors continued to issue letters to Wal-Mart on a bi-monthly basis, indicating plaintiff's inability to return to work. (Defendants' Exh. 7). Early on in her medical leave period, Nunes signed off on Wal-Mart's Leave of Absence Checklist, acknowledging that she received and reviewed all of Wal-Mart's leave requirements. (Defendants' Exh. 21; Nunes depo., p. 59:1-9). Nunes submitted two Wal-Mart Request for Leave of Absence forms ("Request forms"). (Defendants' Exhs. 14 & 15).During her leave, from March of 1995 until November 14, 1995, plaintiff received state disability insurance benefits. (Defendants' Exh. 29).

 On October 27, 1997, Rita Silva ("Silva"), a Wal-Mart manager, informed the store manager, Mike Black ("Black"), that Nunes had failed to submit a Request Form since the expiration of the last Request Form on July 12, and that Nunes could not be located (Nunes had moved and failed to inform her supervisors at Wal-Mart of her new address and telephone number). *fn1" (Silva depo., p. 8:18-22). Black reviewed the doctors' notes in Nunes' file at the time, describing her as totally disabled and unable to work through at least December of 1995, and decided that plaintiff must be terminated to accommodate the contingent of employees being hired for the holiday season. (Black depo., p. 25:1-11). A termination letter was sent to Nunes' last known address. (Silva depo., p. 26:13-15). On November 3, 1995, Nunes came to the store and received $ 272.07 in cash as her final exit pay, signing the cash log next to the box marked "Exit Vera Nunes." *fn2" (Defendants' Exh. 26).

 On November 16, 1995 Nunes returned to Wal-Mart to shop and attempted to use her employee discount card. (Nunes depo., p. 66:15-22). The cashier refused the card and Silva was called to discuss the situation with Nunes. (Id.). Silva and another manager explained to Nunes that she had been terminated because she had not submitted a new Request Form, could not be located, and that her position had been filled by a seasonal employee. (Exit interview, defendants' Exh. 27). Nunes was told that she could reapply after the holiday season, but she never did. (Nunes depo., p. 71:14-17; 73:23; 81:16-23).

 Plaintiff filed her complaint on September 13, 1996 alleging twelve different causes of action against Wal-Mart, Mike Black, and Rita Silva as follows:

 
1. Violation of the Americans with Disabilities Act ("ADA");
 
2. Violation of the Family and Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA");
 
3. Violation of the California Fair Employment and Housing Act ("FEHA");
 
4. Negligent Failure to prevent discrimination and harassment in employment;
 
5. Wrongful termination in violation of public policy;
 
6. Employment discrimination based on retaliation;
 
7. Negligent failure to prevent retaliation;
 
8. Intentional infliction of emotional ...

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