Cancer Discrimination May Leave DA Liable

     CORPUS CHRISTI, Texas (CN) – A district attorney cannot dodge claims that he ousted a prosecutor with terminal cancer, while saying, “It wouldn’t be fair to the other lawyers to do their job plus yours too,” a federal judge ruled.
     Homero Canales says he was diagnosed with prostate cancer in 1996, and that he kept his medical condition private when Jim Wells County subsequently hired him to work as an assistant district attorney. In late 2010, however, Canales informed his employers that he needed chemotherapy because the cancer had metastasized.
     About a month later, in November 2010, Canales blacked out at work, and Barrera told Canales, “You aren’t fired – I want you to get well and when the doctor releases you, you can come back to work,'” according to Canales’ first amended complaint.
     Canales says he later received forms at his home that were presented to him as documents that would set him up with 12 weeks of disability pay.
     “Plaintiff signed papers in December 2010 because he was told this would cause him to receive temporary disability payments instead of a county payroll check,” the complaint states. “Plaintiff was not notified that the papers he had signed in December 2010 were back-dated to November 4, 2010, nor that the purpose of signing the papers was to begin a term of Family Medical Leave. In addition, plaintiff was not told that he was on any limited time frame or that he had any end date for his temporary disability benefits. Plaintiff was not given any paperwork, nor any ‘exit interview’ telling him that he was being put out of work under the Family Medical Leave Act and that he had only a limited number of days to return to his job.”
     When Canales tried to return to work in February 2011, Barrera allegedly became difficult to reach.
     Barrera allegedly gave Canales the runaround for a while before finally telling him, “It wouldn’t be fair to the other lawyers to do their job plus yours too.”
     Barrera and the county argued that the court lacked jurisdiction and moved to dismiss the complaint, which seeks damages for violations of the Americans with Disabilities Act and the Family Medical Leave Act.
     Claiming that the assistant district attorney position qualified Canales as a member of the elected district attorney’s personal staff, Barrera said that the Government Employee Rights Act does not entitle Canales to sue in federal court.
     But U.S. District Judge Nelva Gonzales Ramos refused to determine the issue because it is uncertain whether Canales meets all the standards for qualification as a “personal staff member” as decided by the 5th Circuit in its 1985 resolution of Teneyuca v. Bexar County.
     The “allegations paint a picture of a large office in which the plaintiff was one of many attorneys working without immediate or frequent access to the elected official, handling their own caseloads,” Gonzales Ramos wrote Wednesday.
     “While the complaint does not go into the supervisory structure of the district attorney’s office, it is clear that the plaintiff is one of many lawyers in a large office and that he interacts primarily with secretaries and simply works on his cases,” the decision also states. “There is no indication that he is supervising other lawyers, for instance. Thus the level of his position within the organization’s chain of command is not high. … It is harder to find that one employee among many in a large office is a first line advisor with an intimate working relationship with the elected official.”
     Gonzales Ramos also refused to dismiss Barrera as an improper individual defendant, or on the basis of immunity.

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