Associational Disability Discrimination

We represented Morgan Stanley Smith Barney against plaintiff's claims of associational disability discrimination, retaliation for anticipatory use of FMLA and wrongful discharge under New Hampshire common law. The Court granted Summary Judgment to our clients on all four counts.

This case is an excellent example of careful fact accumulation in discovery to persuade a court that no reasonable jury could find the facts necessary to sustain a plaintiff’s verdict. While the court did not reach the question of whether it would recognize a claim of anticipatory breach of a party's FMLA rights, having concluded that the jury would not be able to find that the company's legitimate reason for termination was not the real reason, it suggested that it would not permit such a claim where the employee was not yet qualified for FMLA and had not asked for such leave. The court also reaffirmed earlier cases which hold that periods of longer than 2-3 months between the alleged indicator of animus and the adverse action were too long to permit any inference of discrimination. The case is also important to show how a court should properly analyze whether there is sufficient credible factual disputes to permit the case to go to trial, which analysis was made possible by the excellent record keeping of reviews and discipline maintained by the company.