Class claim denied in Wendy's suit

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A federal judge in Pittsburgh has struck down a potential class-action claim in a disability lawsuit against fast-food giant Wendy's International, saying the circumstances around the firing of a Munhall woman were too unique to create a "class" of litigants.

The judge's decision came earlier than what is typical, before the case entered what is known as the class certification stage. U.S. District Judge Terrence F. McVerry of the Western District of Pennsylvania questioned whether each plaintiff truly falls under the jurisdiction of the Americans with Disabilities Act.

In her response to a motion to strike her class claims, plaintiff Patricia Semenko argued the court should allow her class claims to proceed until discovery was taken in the case or a motion for class certification was filed. Judge McVerry said in Semenko v. Wendy's International that a court must determine as soon as practicable whether a class action can be maintained.

"The court recognizes [that] motions to strike class-action allegations filed before plaintiffs move for class certification are premature," Judge McVerry said. "However, after a careful and deliberate review of the applicable case law and the parties' respective positions, the court concludes that this is one of those rare cases in which no amount of discovery will demonstrate that the class can be maintained."

After working for Wendy's for 30 years, Ms. Semenko went on long-term disability to treat her degenerative arthritis and back pain. In November 2007, her doctor allowed her to return to work with restrictions. She asked Wendy's to return with accommodations and the company allegedly denied the request, and terminated her in January 2008, according to the opinion.

Aside from her individual claims against the company, Ms. Semenko raised class allegations on behalf of all people terminated by Wendy's following a leave of absence or otherwise not accommodated by Wendy's failure to give them alternate positions or duties, according to the opinion.

Wendy's argued Ms. Semenko's class claims require a determination of whether each class member is "qualified" under the ADA -- a process that is too individualized, and lacking "commonality," to warrant class certification.

legalnews

Gina Passarella: gpassarella@alm.com or 215-557-2494. To read more articles like this, visit www.thelegalintelligencer.com


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