Discrimination after surgery and threatening termination

[cassie2002]

Texas: My employer is threatening my imminent termination due to my surgery and recovery. Doctor signed for me to back to work part time with no lifting, pushing, pulling. Employer is unwilling to make any accommodations despite desk duties being available and given to 5 other employees over the last 3 years. I am a nurse so do a lot of moving patients, stretchers and such.

I filed with EEOC for discrimination citing the Disabilities Act. EEOC said the employer is required to provide accommodations.

Employer has called me 3 times but I have not answered wanting to get the EEOC filed and to them before they fire me, which has been filed and delivered to my employer. Should I take their call or consult an attorney first? I'm wondering if it was a bad thing for me to suggest becoming an as needed employee if they were going to terminate me from my full time position/

 

[commentator]

How long has all this been going on. Okay, you were out for surgery how long? We assume, since it hasn't been brought up, that you didn't qualify for FMLA? (In other words, have not been there a year they do not have over 50 employees within a certain radius, all the basics, you can read it) But if you did qualify for FMLA, then your job would've been protected for 12 weeks at least. Or did you have it, and had you been off the full 12 weeks and then they said they were going to terminate?

But you say you went to the EEOC when they refused to give you accommodations to return to work on light duty. And they told you they had to give you the accommodations? Very interesting. And now you have refused 3 or more phone calls from the employer, and at the end of it all you wonder if you made a mistake by telling them that you'd work on call as needed if they were going to terminate you. More clarification is needed here. Over what time period has all this occurred?

As soon as you are fully released by your doctor and are not working you may qualify, and it is an excellent idea to file for unemployment insurance benefits any time you are out of work through no fault of your own, as in the employer fired you while you are on sick leave. Because no matter whether or not you retain an attorney and whether or not you had some other kind of case, you'd still be without work or income, and unemployment insurance is your first and many times your only recourse when terminated this way.

 

[FlyingRon]

Yes, as commentator alludes in his "very interesting" comment. Not doing your job at the level expected isn't an ADA accommodation. If "heavy duty" is the norm for your job, then they don't have to offer you "light duty."

 

[cbg]

Much, much, much more information needed before anyone can give you any kind of estimate. It's not even clear that your condition is protected under the ADA - not all are.

So let's start with gathering the basics:

1.) How long have you worked for this employer?
2.) How many employees does this employer have within 75 miles of your location?
3.) In the 12 months immediately proceeding the start of your leave, had you worked a minimum of 1,250 hours for this employer?
4.) How much time off did you take before your doctor cleared you to return to work in a part time capacity?
5.) How long does your doctor anticipate it will take before you are able to return to work full time and unrestricted?
6.) I am very, very skeptical that any EEOC officer told you on the phone, without an investigation or hearing the employer's side of the story, that they were required to give you an accommodation - not and have that statement be binding. Tell us EXACTLY how that went down.

 

[cassie2002]

reply

Much, much, much more information needed before anyone can give you any kind of estimate. It's not even clear that your condition is protected under the ADA - not all are.

So let's start with gathering the basics:

1.) How long have you worked for this employer? 5 years
2.) How many employees does this employer have within 75 miles of your location? 200-500
3.) In the 12 months immediately proceeding the start of your leave, had you worked a minimum of 1,250 hours for this employer? yes
4.) How much time off did you take before your doctor cleared you to return to work in a part time capacity? Sept. 22- Feb. 6
5.) How long does your doctor anticipate it will take before you are able to return to work full time and unrestricted? 2-4 more weeks
6.) I am very, very skeptical that any EEOC officer told you on the phone, without an investigation or hearing the employer's side of the story, that they were required to give you an accommodation - not and have that statement be binding. Tell us EXACTLY how that went down.

Yes I had FMLA but it ran out in December. I filed in person at the EEOC. They instructed me that regardless of whether FMLA is up or not my company is required to make accommodations to get me to return to work. I mentioned to them that 5 other employees who all perform heavy patient care, received accommodations in the last 3 years due to surgical procedures and all 5 were given accommodations doing patient interviews, computer work and filing duties until they were able to return to full duty. The EEOC told me they didn't need the info of the 5 accommodated people (which I provided anyway) since the company is "required" to provide accommodations. She also told me that this wasn't always the way it was in the courts. Several years ago she stated that the courts would rule in favor of the company if the employee's FMLA had run out. She stated this ruling has turned quite a bit and become a lot more in favor of the employee.
I presented the return to work letter with limitation to my employer on 2/1/17.
I was first contacted by phone and writing about my pending termination on 2/8/17. "Please provide any additional information no later than 2/10/17." Verbally I asked if I were to provide a full release from my doctor by 2/10/17 I would not be terminated? Which my employer replied with a "yes". My doctor is unwilling to release me due my surgery.
2/10/17 EEOC document filed and delivered to employer.

This is Texas so this is a right to work state. I've worked there for 5 years. I will definitely file for unemployment this coming week.

The EEOC said it was a good thing I offered to remain on as an as needed employee since it shows I'm willing to whatever job to try and work it out.

Just looking to see if I might have a case or if this is fruitless?

 

[cassie2002]

How long has all this been going on. Okay, you were out for surgery how long? We assume, since it hasn't been brought up, that you didn't qualify for FMLA? (In other words, have not been there a year they do not have over 50 employees within a certain radius, all the basics, you can read it) But if you did qualify for FMLA, then your job would've been protected for 12 weeks at least. Or did you have it, and had you been off the full 12 weeks and then they said they were going to terminate?

But you say you went to the EEOC when they refused to give you accommodations to return to work on light duty. And they told you they had to give you the accommodations? Very interesting. And now you have refused 3 or more phone calls from the employer, and at the end of it all you wonder if you made a mistake by telling them that you'd work on call as needed if they were going to terminate you. More clarification is needed here. Over what time period has all this occurred?

As soon as you are fully released by your doctor and are not working you may qualify, and it is an excellent idea to file for unemployment insurance benefits any time you are out of work through no fault of your own, as in the employer fired you while you are on sick leave. Because no matter whether or not you retain an attorney and whether or not you had some other kind of case, you'd still be without work or income, and unemployment insurance is your first and many times your only recourse when terminated this way.

I presented the return to work letter with limitation to my employer on 2/1/17.
I was first contacted by phone and writing about my pending termination on 2/8/17. "Please provide any additional information no later than 2/10/17." Verbally I asked if I were to provide a full release from my doctor by 2/10/17 I would not be terminated? Which my employer replied with a "yes". My doctor is unwilling to release me due my surgery.
2/9/17 voicemail X2 on my phone from employer.
2/10/17 voicemail on phone from employer.
2/10/17 EEOC document filed and delivered to employer.

 

[cbg]

Once your FMLA ran out your employer had no legal obligation to return you to work at all.

You did not answer question #5 and it is VERY important.

Right to work means you don't have to join a union to get work. You are likely talking about employment at will, which is the case for 49 out of 50 states and sometimes in the 50th.

 

[cassie2002]

Once your FMLA ran out your employer had no legal obligation to return you to work at all.

You did not answer question #5 and it is VERY important.

Right to work means you don't have to join a union to get work. You are likely talking about employment at will, which is the case for 49 out of 50 states and sometimes in the 50th.

Answer to number 5 was 2-4 more weeks. But is actually 1-3 weeks now that a week has already passed.

 

[justalayman]

Either you are misunderstanding what the eeoc has stated or whomever is giving you information is giving you incomplete and possibly misleading information. The adaaa of 2008 does leave it open to interpretation that some temporary issues can be considered a disability for the purposes of the act, it does not include all temporary issues. I have my doubts the eeoc has made such a dependable determination from what they have been provided with so far.

The ruling of importance was issued in the fourth circuit court of appeals. That does not necessarily travel to other circuits. Texas is not in the fourth circuit.

Then, it is up to the employer to choose and provide the accomodation. It is their choice which accomodation is utilized as long as the accomodation they provided fulfills the requirements needed. While they may have provided light duty to others, that doesn't mean they have to offer it to you. They are not required to create a position for you so if there is no available light duty available, they don't have to offer it.

As to unemployment; filing for it is one thing but if you are unable to perform your normal line of work, you would be ineligible for UI benefits as you are required to be ready, willing, and able to accept work in your normal line of work.

 

[cbg]

If you will be ready to return to work full time with no restrictions in 2-4 weeks, then it is unlikely that your condition is covered by the ADA. In which case no accommodation is needed.

There are no circumstances whatsoever under which an employer is required to provide light duty.

 

[eerelations]

There are no circumstances whatsoever under which an employer is required to provide light duty.

Or to keep a job open after FMLA leave has been exhausted.

 

[commentator]

I'm completely curious about where you'd find a walk in office for the EEOC that would so freely and easily pass out misinformation this way. You can't even find a walk in office for the Department of Labor unemployment offices any more these days in most states. And "the EEOC" has never been an entity which took walk in traffic. Also, when you file a claim of discrimination with the EEOC, this isn't usually how it works.

Let me ask another question. Was this a worker's comp based surgery? Were you out of work to have surgery resulting from an on the job issue, so that it was covered by worker's comp? That could possibly change some of the aspects of the situation.

But you will not be eligible to draw unemployment insurance until you are fully released by your doctor to perform your usual work, unless it is a situation which falls into an exception to this requirement. Worker's comp injuries are the most common reason you might qualify with partial restrictions on your release still in effect. Otherwise, no way. Usually the standard operating procedure is that the person presents themselves to the employer as released to return to work with no restrictions, and at that point, the employer tells them that they have no work available for them, because they have filled the position, or they have terminated the person after their 12 week FMLA ran out, or whatever reason they give.

But before I spoke with an attorney I'd make sure it was a free consult, and I'd be very careful to make sure they were willing to take the case on contingency. Because I am very unsure there is a case. Usually the EEOC will take your complaint against your employer, and then after an extended period of time, they will issue what is known as a "right to sue" letter, if there is evidence of illegal discrimination or violation of the ADA and at that point you obtain an attorney to sue your employer. Which is why I say that unemployment insurance is your first line of business. And they will not be likely to approve a claim if you are not fully released by your physician and able, available and actively seeking work in an equivalent job to what you had.

 

[commentator]

Also, what EEOC document would you file with the employer? Why would you not answer their voicemails or return their calls?

 

[CTU]

I presented the return to work letter with limitation to my employer on 2/1/17.
I was first contacted by phone and writing about my pending termination on 2/8/17. "Please provide any additional information no later than 2/10/17." Verbally I asked if I were to provide a full release from my doctor by 2/10/17 I would not be terminated? Which my employer replied with a "yes". My doctor is unwilling to release me due my surgery.
2/9/17 voicemail X2 on my phone from employer.
2/10/17 voicemail on phone from employer.
2/10/17 EEOC document filed and delivered to employer.

Just emphasizing the apparent timeline.

 

[defendmyself]

I'm completely curious about where you'd find a walk in office for the EEOC that would so freely and easily pass out misinformation this way. You can't even find a walk in office for the Department of Labor unemployment offices any more these days in most states. And "the EEOC" has never been an entity which took walk in traffic. Also, when you file a claim of discrimination with the EEOC, this isn't usually how it works.

Let me ask another question. Was this a worker's comp based surgery? Were you out of work to have surgery resulting from an on the job issue, so that it was covered by worker's comp? That could possibly change some of the aspects of the situation.

But you will not be eligible to draw unemployment insurance until you are fully released by your doctor to perform your usual work, unless it is a situation which falls into an exception to this requirement. Worker's comp injuries are the most common reason you might qualify with partial restrictions on your release still in effect. Otherwise, no way. Usually the standard operating procedure is that the person presents themselves to the employer as released to return to work with no restrictions, and at that point, the employer tells them that they have no work available for them, because they have filled the position, or they have terminated the person after their 12 week FMLA ran out, or whatever reason they give.

But before I spoke with an attorney I'd make sure it was a free consult, and I'd be very careful to make sure they were willing to take the case on contingency. Because I am very unsure there is a case. Usually the EEOC will take your complaint against your employer, and then after an extended period of time, they will issue what is known as a "right to sue" letter, if there is evidence of illegal discrimination or violation of the ADA and at that point you obtain an attorney to sue your employer. Which is why I say that unemployment insurance is your first line of business. And they will not be likely to approve a claim if you are not fully released by your physician and able, available and actively seeking work in an equivalent job to what you had.

Newark New Jersey has a walk in office from 9-3 pm or so... I took my uncle there there for a similar issue. he met with investigator and filed a charge... same day... also the courts in some circuits do say that after Fmla is exhausted an accommodation may be in order... of course the njlad is more liberal than the ada and Texas is a different world from nj. Been over a year. Uncle still has not received right to sue letter. you can be ineligible for fmla or exhaust it and still be eligible for an accommodation. Minus hardships etc.... as an employee, I get the fine art of balancing both... some employees abuse leave and some employers really could prevent a lot of grief by giving employees temporary adjustments... needing medical care can happen to anyone at anytime... gl to all