15-year supermarket employee fired while on medical leave. $578K. San Mateo County.


Supermarket bakery/deli manager loses her job when communication with employer breaks down during pregnancy/medical leave.

The Case

  • Case Name: Keri Sullivan v. Save Mart Supermarkets, Inc.
  • Court and Case Number: San Mateo Superior Court / CIV538881
  • Date of Verdict or Judgment: Friday, September 29, 2017
  • Date Action was Filed: Wednesday, June 01, 2016
  • Type of Case: Discrimination, ADA, Employment, Wrongful Termination
  • Judge or Arbitrator(s): Hon. Steven Dylina
  • Plaintiffs:
    Keri Sullivan, 39, bakery/deli manager.
  • Defendants:
    Save Mart Supermarkets, a California Corporation
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $578,425
  • Economic Damages:

    Past economic: $52,425    

    Future economic: $59,000

    Future medical psychological treatment: $42,000

  • Non-Economic Damages:

    Past emotional distress: $300,000 

    Future emotional distress: $125,000

  • Trial or Arbitration Time: 6 days. (8 days per defense counsel.)
  • Jury Deliberation Time: 1 day.
  • Post Trial Motions & Post-Verdict Settlements: Motion for attorney's fees and costs to be filed by plaintiff.

The Attorneys

  • Attorney for the Plaintiff:

    McCormack & Erlich, LLP by Jason M. Erlich, San Francisco.

    Top DePaul LLP by Michael J. DePaul, Oakland.

  • Attorney for the Defendant:

    Jackson Lewis P.C. by Mitchell F. Boomer and Janelle J. Sahouria, San Francisco.

The Experts

  • Plaintiff’s Medical Expert(s):

    Paul Berg, Ph.D., psychology, Oakland.

  • Defendant's Medical Expert(s):

    John A. Zeitz, M.D., psychiatry.

  • Plaintiff's Technical Expert(s):

    Phil Allman, economics, Oakland.

  • Defendant's Technical Expert(s):

    Suzanne Stuckwisch, economics, San Francisco.

Facts and Background

  • Facts and Background:

    Plaintiff Keri Sullivan worked for Save Mart Supermarkets for nearly 15 years. In January 2014, she took pregnancy leave and she learned that she had Lupus – an autoimmune disorder, which complicated her pregnancy. She also developed post-partum depression. Despite these obstacles, she was in regular contact with her store manager and defendant Save Mart Supermarket's leave vendor, FMLA Source.

    For employees on medical leave, Save Mart employs “72 hour letters” in which an employee has three days to respond to a request for medical certification or they may be terminated. Save Mart sent one to plaintiff at her address of record in early November 2014 claiming she had not provided medical certification to support her absence. About two weeks later the letter was returned to Save Mart as undeliverable. Save Mart then sent a termination letter to the same address claiming “job abandonment” for failure to submit medical certification supporting a continued leave of absence.

    Since plaintiff had been in contact with her store manager, the store manager gave Human Resources plaintiff's phone number, informed HR that plaintiff's medical provider was having trouble getting the medical certifications to FMLA Source, and that plaintiff needed a little more leave time. Save Mart did not attempt to call or email plaintiff. Save Mart's leave manager assumed plaintiff did not want to return to work following the birth of her child. Plaintiff did not learn she had been fired until two weeks later when she called her store manager. Plaintiff then called the HR Manager for her store and tried to get her job back.

    Plaintiff testified that the HR Manager wouldn't help her and told her she simply could reapply when she was released to work because she remained eligible for rehire. The HR Manager stated that she would have taken steps to bring plaintiff back to work, had plaintiff indicated she wanted to return to work. The HR Manger also testified she was 100% certain plaintiff never said anything about wanting her job back and only requested her final paycheck be sent to her updated address. Frustrated with Save Mart's behavior, plaintiff went to her union and filed a grievance, but no one ended up advancing the grievance.

  • Plaintiff's Contentions:

    That Save Mart failed to reasonably accommodate her by returning her to her former position as Bakery/Deli Manager – a position which remained open for months after her termination. Also, that Save Mart failed to engage in any interactive process such as continuing her leave. Plaintiff also alleged that Save Mart terminated her employment because of her pregnancy and her medical condition.

  • Defendant's Contentions:

    That plaintiff shared responsibility for the breakdown in communication that resulted in her discharge by failing to update the company with her new address and failing to provide timely medical certification of her need for continued medical leave, resulting in the mistaken conclusion that she had abandoned her job. Save Mart argued that plaintiff caused the breakdown in the interactive process and discussions about reasonable accommodation. Save Mart also introduced evidence that plaintiff did not inform the union that she wished to pursue her union grievance even though doing so could have resulted in reinstatement. Approximately two months before trial, Save Mart offered plaintiff unconditional reinstatement and calculated her back pay at $87,000.

Demands and Offers

  • Defendant §998 Offer: On 8/10/17, defendant served a CCP 998 for $150,000 including attorney fees/costs. On 9/8/17, the CCP 998 offer was for $89,001 exclusive of attorneys’ fees/costs to that date.

Additional Notes

Per defense counsel:

The jury found in favor of plaintiff on her claims for denial of reasonable accommodation and failure to engage in the interactive process. The jury found in favor of defendant on plaintiff’s claims for disability discrimination, pregnancy discrimination and wrongful discharge in violation of public policy. The court struck plaintiff’s claim for punitive damages at the close of plaintiff’s case in chief.