Job Loss After Maternity Leave Sparks Discrimination Lawsuit

Article taken from the Packet Online
Written by Gwen McNamara

Job Loss After Maternity Leave Sparks Discrimination Suit

Imagine taking leave from work, only to discover six days before you return that your job has been eliminated - a victim of downsizing.
Think it can't happen? Think again.

That's exactly what Princeton Borough resident Nita Wright says happened to her after taking maternity leave from her job as senior manager of advertising and marketing for RCN Corp. at 105 Carnegie Center in West Windsor.

And now Ms. Wright, with Princeton attorney Hanan Isaacs, has filed a civil-rights suit in Mercer County Superior Court claiming discrimination under the federal Family and Medical Leave Act and New Jersey Family Leave Act - a claim RCN denies.

"This case stands for the important proposition that management simply cannot discriminate against employees while on family or medical leave, nor can managers play a shell game with employees' jobs," Mr. Isaacs said. "RCN intentionally retaliated against Ms. Wright for exercising her family and medical leave rights under state and federal law."

Representatives from RCN declined to address the specifics of Ms. Wright's claim.
"Since this is a legal matter, to make any comment in this early stage of the proceedings would be inappropriate," said Mike Hoten, a spokesman for RCN. "We are currently reviewing her allegations and stress that RCN is an equal-opportunity employer that respects and protects the civil rights of our employees."

RCN's legal counsel, Philip Passanante, did not return calls seeking comment.

According to Mr. Isaacs, Ms. Wright took maternity leave Sept. 15, 2004, and gave birth to a baby girl about a month later.

Prior to beginning her leave, Ms. Wright and RCN identified a person who would serve as her temporary replacement, he said.

"Nita knew she'd be out at least two months, so she trained a replacement - Ellen Burke - as a backup," Mr. Isaacs said.

After being out on leave a full 12 weeks - the amount of time employers are required to provide under federal law - Ms. Wright then decided to extend her leave and invoked the New Jersey Family Leave Act.

"It's not unusual to use each - the federal FMLA and New Jersey's FLA - back to back," Mr. Isaacs said. "She told RCN she would be back Jan. 10, 2005."

Throughout her time away from work, Ms. Wright often called in to see how things were going. She was told consistently that all was fine, Mr. Isaacs said.

On Jan. 4, 2005, when Ms. Wright called the office to complete preparations for her return, her boss - Bobbie Herbs - told Ms. Wright her job was eliminated as part of downsizing, Mr. Isaacs said.
"Nita, a well-liked person in the company, then got a tip from a colleague saying she better check out RCN's intranet site," Mr. Isaacs said. "There, she found posted - in mid-December - her job. The description matched her duties 100 percent. Only the title was slightly changed.

"She was never told her job was up for auction," he continued. "And while she was in the dark, RCN filled the new job with Ms. Wright's back-up employee."

What's critical to the case, Mr. Isaacs said, is that under the FMLA and FLA, workers are guaranteed a job upon returning to work.

"If RCN had waited until Ms. Wright returned, and then explained the problem or made the necessary changes, there would be no problem," Mr. Isaacs said. "RCN should have waited until she was back and allowed Ms. Wright the chance to put a bid on the job like any other applicant."
Filed May 3, the case is now beginning the discovery phase. Mr. Isaacs expects it would be at least 10 months before the case could go to jury trial. The case has been assigned to Judge Paul T. Koenig for supervision of pre-trial processing.
Apart from the usual types of pretrial information, Mr. Isaacs is seeking relevant electronic records from RCN.

"Much like the Enron case and others in the news, the e-mail trail will make or break this case," he said. "We have put RCN on notice that it must protect electronic data that will help prove Ms. Wright's case."

Mr. Isaacs has hired P.G. Lewis & Associates, a national data forensics firm, to make sure RCN turns over all relevant and admissible data.
"If something is missing, we will know about it and so will the court," he said.

Overall, Ms. Wright is seeking unliquidated compensatory damages, punitive damages, back pay plus lost interest on back pay, front pay and coverage of counsel fees and costs of suit.

"So far, RCN has acted like the proverbial ostrich with its head in the sand," Mr. Isaacs said. "We've asked RCN for reasonable severance and the Princeton Civil Rights Commission even wrote to RCN asking them to agree to sit down and talk with us, but they won't discuss the issues."

In the meantime, Ms. Wright, 32, has found work at another telecommunications company, but is angered that RCN would treat her so negatively after almost three years with the company, Mr. Isaacs said.

"We're trying to send a signal to the business community that you can't do this - you can't discriminate those on leave or lie to them," said Mr. Isaacs. "Nita wasn't downsized; she was flushed."

Mr. Isaacs, a past president of the New Jersey Association of Professional Mediators and past chairman of the Dispute Resolution Section of the New Jersey State Bar, has focused on employment litigation for the past eight years. He has been a trial lawyer for 25 years.

RCN is one of the largest providers of bundled phone, cable and high-speed Internet services, delivered over its own fiber-optic local network, in the Boston, New York, eastern Pennsylvania, Washington, Chicago, San Francisco and Los Angeles markets