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  1. #1
    krh69 is offline Junior Member
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    fired for being disabled

    What is the name of your state (only U.S. law)? Tennessee

    What is the name of your state (only U.S. law)? TN

    I have Psoriatic arthritis and have probelems with my rights arm, elbow and hand and my left hip, knee and ankle (it is assymetrical). I have been working at a Server at a Restaurant, which I have been doing for over 15 years. I started a new job in November and advised them of my condition and told them I would do my best to do all the job requirements including lifting heavy trays of food.

    I did this up until the last few weeks, when my elbow started swelling and I had severe pain in it. I advised then that I couldn't lift the trays, but I could carry 2 plates at a time and do other things like run salads and things that are not that heavy.

    With the Arthritis, I get severe fatigue also,and sometimes it is all I can do to stay awake. I have been doing a great job and have gotten many compliments on my performance. Every night each server gets a rating based on their performance from 1 to 5, and I consistently get a 4 or 5.

    Well today I got fired and the boss said the reason was because I could not perform the job and that I looked "out of it" sometimes. I tried explaining that my illness made me fatigued sometime and also asked if I had any complaints from customers. He said no, no one had complained.

    I think this is a clear violation of the ADA and wanted to know if I had a case.
  2. #2
    cbg
    cbg is offline Senior Member
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    There does not have to be a complaint from a customer.

    Is it an essential function of your job that you be able to lift trays?

    I'm not seeing at what time you asked your employer for an accomodation.
  3. #3
    krh69 is offline Junior Member
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    No, it is not an essential function to be able to lift trays, we have to be able to take out food, but it does not specify that it must be 4 plates on a tray. We should be able to take them out 2 plates at a time or whatever, as long as the food gets there. They would just rather us lift the trays so that things move faster.

    I had asked for accomodation approximately the first week of December when I was having porblems with my elbow. My boss advised at that time that I could just take two plates at a time, and if that didn't work, he would move me to a position like host or something that did not require heavy lifting. He never offered this to me when he fired me, he said that I could not do the job required and that I appeared "out of it" sometimes. I advised him that fatigue is a symptom of arthritis, but it has never hampered my performance. Sometimes I just get really tired and appear that way.
  4. #4
    Willlyjo Guest
    Quote Originally Posted by krh69 View Post
    No, it is not an essential function to be able to lift trays, we have to be able to take out food, but it does not specify that it must be 4 plates on a tray. We should be able to take them out 2 plates at a time or whatever, as long as the food gets there. They would just rather us lift the trays so that things move faster.

    I had asked for accomodation approximately the first week of December when I was having porblems with my elbow. My boss advised at that time that I could just take two plates at a time, and if that didn't work, he would move me to a position like host or something that did not require heavy lifting. He never offered this to me when he fired me, he said that I could not do the job required and that I appeared "out of it" sometimes. I advised him that fatigue is a symptom of arthritis, but it has never hampered my performance. Sometimes I just get really tired and appear that way.
    I believe you do have a case against your employer for Wrongful Termination in breach of the Public Policy of your State. Nobody can be fired because of a disability. The fact your arm and elbow started hurting shows a spontaneous event that prevented you from doing your normal duties. Your duties caused your symptoms to reappear so that makes it a work related injury. Obviously there is apportionment but still, it can be considered work related which should allow you to get disability payments instead of unemployment. It should also allow you to file a Worker's Comp Claim. Find one of the many lawyers who will help you with this. Also, as I said, it seems to me that you were fired due to a disability which is wrong. I believe you may have luck in finding a lawyer to help you with a Wrongful Termination as well. Good luck.
  5. #5
    cyjeff is offline Senior Member
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    Quote Originally Posted by Willlyjo View Post
    I believe you do have a case against your employer for Wrongful Termination in breach of the Public Policy of your State. Nobody can be fired because of a disability. The fact your arm and elbow started hurting shows a spontaneous event that prevented you from doing your normal duties. Your duties caused your symptoms to reappear so that makes it a work related injury. Obviously there is apportionment but still, it can be considered work related which should allow you to get disability payments instead of unemployment. It should also allow you to file a Worker's Comp Claim. Find one of the many lawyers who will help you with this. Also, as I said, it seems to me that you were fired due to a disability which is wrong. I believe you may have luck in finding a lawyer to help you with a Wrongful Termination as well. Good luck.
    That is incorrect.

    If a disability means that you cannot perform the core functions of a job, accomodation may not be possible.

    for instance, no one would doubt that blindness would end the career of an airline pilot or that deafness would end the career of a music producer.
  6. #6
    cbg
    cbg is offline Senior Member
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    Based on the information available to us, it is impossible to say if a wrongful termination did or did not occur. NO ONE on a message board, particularly one who gives as many incorrect answers as willyjo (who clearly does not understand employment law AT ALL) can say for certain what accomodations are or are not reasonable. However, if you believe that your employer violated the ADA, your first step is to contact the EEOC. A right to sue letter from them is a must before any legal action can be taken.
  7. #7
    Willlyjo Guest
    Quote Originally Posted by cbg View Post
    Based on the information available to us, it is impossible to say if a wrongful termination did or did not occur. NO ONE on a message board, particularly one who gives as many incorrect answers as willyjo (who clearly does not understand employment law AT ALL) can say for certain what accomodations are or are not reasonable. However, if you believe that your employer violated the ADA, your first step is to contact the EEOC. A right to sue letter from them is a must before any legal action can be taken.
    You are so ignorant...my answers are based on years experience through Workers Comp Cases I handled by myself due to ignorant lawyers as well as my own Wrongful Termination when my lawyer dropped the case due to the Ca. Supreme Court ruling a Wrongfully Terminated employee cannot get emotional distress--only economical losses. It is not necessary at least, in California to go to the EEOC if you've been fired due to a disability! Currently, my wife was fired because she told her employer she wanted to get treated for stress and a sore right hand as a result of computer work and no lunch breaks for 9 months. Her employer had no insurance! Our lawyer filed suit and we are awaiting a trial in August, 2009. I did mention in a previous quote that I wasn't familiar with other states than Ca. but I do believe I'm right when I say that in no state will they allow you to be fired because you become disabled and can't work. Also, if there are no accommodations then the injury exacerbated by work duties might result in not being able to do that type of work again which should result in a resignation, not getting terminated because one looks 'out of it'. So senior member...you are the one who is wrong. And just because I take time to give some of these victims good advice based on my experience, doesn't mean you have to act condensending toward me.
    Last edited by Willlyjo; 01-04-2009 at 08:18 PM.
  8. #8
    las365 is offline Senior Member
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    Willyjo, you need to cite the LAWS that support the claims you make, such as

    Nobody can be fired because of a disability.
    Because you are wrong in almost every single thing you say.

    Currently, my wife was fired because she told her employer she wanted to get treated for stress and a sore right hand as a result of computer work and no lunch breaks for 9 months. Her employer had no insurance!
    Didn't you post about this issue claiming that you are your wife? Which is it?

    I do believe I'm right when I say that in no state will they allow you to be fired because you become disabled and can't work.
    Again, this is wrong. You think you are right, cite the laws that state this.

    Our OP may have a viable claim, but you are not helping her by giving her bad information.
  9. #9
    krh69 is offline Junior Member
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    Thank you Willy Jo, I appreciate your advice, it really helps. Of course I will seek the advice of attorney before proceeding with anything, but your answer makes sense.

    I apologize for the person who called you names, you were only trying to help and no one would take the advise from a internet chat board as absolute truth. I don't think you are an idiot and I appreciate your insight into the matter. I think that is what this site is about, finding others who may have some knowledge to direct those who don't to the proper channels for relief.

    There is more to the story, a lot more, too much to type on here, but that was the basic premise of it. I was fired because I could not lift a tray. I tried to explain my disability status once again and he refused to listen. They were well aware of my disability because one of the assistant managers has the same condition and we talked about t constantly.

    According to the ADA website the employer must make reasonable accomodations or offer you a position within the company that is within my physical limitations. They did neither and this is a chain restaurant, so you would think they would be aware of what is required of them.

    Thanks for your help.
  10. #10
    Willlyjo Guest
    Quote Originally Posted by las365 View Post
    Willyjo, you need to cite the LAWS that support the claims you make, such as

    Because you are wrong in almost every single thing you say.

    Didn't you post about this issue claiming that you are your wife? Which is it?

    Again, this is wrong. You think you are right, cite the laws that state this.

    Our OP may have a viable claim, but you are not helping her by giving her bad information.
    Suppose you cite the laws that support your claim that in any state you can be fired for a disability. As far as posting about my wife's Wrongful Termination, I typed on her behalf as she sat beside me. Nothing wrong with that. And no, I never claimed that I was my wife (LMAO)!! You should have better command of the english language because that doesn't sound right~! I don't have to prove anything...let the OP call a Workers Comp lawyer, they will bear me out if I'm right. If I'm wrong, I apologize and will be more disheartened by a very cruel society because I am not aware of any state that would not allow someone to file a claim for being Wrongfully Terminated because they look 'out of it' or a claim for Workers Comp because their work duties caused an exacerbation of symptoms of a previous condition. As far as you believing I'm giving the OP bad information...let her make a few phone calls and see if she is not accommodated by an attorney and then let her tell me...she knows where I can be reached. Also, is it bad information to advise her to call an attorney or is it bad information to give an opinion based on my experience which, I'm sure is much more vast than yours. Relax and quit trying to make a mountain out of a mole hill.
  11. #11
    las365 is offline Senior Member
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    As far as posting about my wife's Wrongful Termination, I typed on her behalf as she sat beside me. Nothing wrong with that. And no, I never claimed that I was my wife (LMAO)!! You should have better command of the english language because that doesn't sound right~!
    Quote Originally Posted by Willlyjo View Post
    What is the name of your state (only U.S. law)? California
    I was employed at a Dental Clinic where I greeted patients and helped them get to their prospective treatments. My supervisor, who befriended me also, liked my personality and invited me to work for her own business. She promised me the same benefits I had at the Dental Clinic: 2 weeks paid vacation, 64 hours sick pay yearly and 12 dollars per hour. I decided to work for her since she seemed like a good friend. She took me to Vegas once and paid for the room and meals, she also invited me and my husband to her house for her daughter's birthday. After working for her about 9 months, I asked her for a raise and she said no. I asked her for my 2 week vacation check and 64 hour sick pay check because I was never sick, but she claimed she never offered me such benefits. As it was, I was stressed out because I never got lunch or break periods, which I agreed to and my hand was hurting because of repetitive work on the computer. I never got my work related injuries treated for weeks because I didn't want to disrupt my friends business by not showing up to work, despite my husband's objections. But when I realized she wasn't the friend I thought she was and that she lured me away from a good job with promises to give me the same immediate benefits, I went ahead and requested Workers Comp paper work so I could get treated for my stress and hand injury. My boss told me she would get the paper work for me but she never did. I went to a meeting with her and her husband with my husband to explain the situation that needed their immediate attention but they fired me after I told them I wouldnt be back to work until I felt better. Also, I voiced my objection to my boss's demands that I add 10 to 20 dollars onto UPS charges, which contributed to my termination. I found out that they never had workers comp. insurance when I filed my case. My question is: Did my boss commit Fraud (Intentional Misrepresentation) by luring me away from a good job with promises of the same benefits which it seems she knew she wouldn't provide?
    You have no business giving advice here.
  12. #12
    Willlyjo Guest
    Quote Originally Posted by krh69 View Post
    Thank you Willy Jo, I appreciate your advice, it really helps. Of course I will seek the advice of attorney before proceeding with anything, but your answer makes sense.

    I apologize for the person who called you names, you were only trying to help and no one would take the advise from a internet chat board as absolute truth. I don't think you are an idiot and I appreciate your insight into the matter. I think that is what this site is about, finding others who may have some knowledge to direct those who don't to the proper channels for relief.

    There is more to the story, a lot more, too much to type on here, but that was the basic premise of it. I was fired because I could not lift a tray. I tried to explain my disability status once again and he refused to listen. They were well aware of my disability because one of the assistant managers has the same condition and we talked about t constantly.

    According to the ADA website the employer must make reasonable accomodations or offer you a position within the company that is within my physical limitations. They did neither and this is a chain restaurant, so you would think they would be aware of what is required of them.

    Thanks for your help.
    I appreciate your response, dear. I further researched the ADA and my question is: Were you considered a disabled person before you went to work for this restaurant? If so, what document or documentation listed you in the catagory of a disabled person? Like I have an elbow injury that was work related from about 10 years ago. Although there is permanent damage, I can still perform my job working in a cold storage warehouse. Sometimes it acts up and I have to take a day or 2 off but still, I don't think I need any accommodations at my job. If in fact you did or do have a condition that would be considered a disability, then it is reasonable to assume that since this business hired you knowing you had this condition, they should give you reasonable accommodations and from what you posted, it is very reasonable. As you said, the boss even said he would allow such accommodations. It has been my experience that if my elbow started hurting do to work activity, I would go to my employer's doctor and get treated and then they would either send me back to work on "Light Duty" or if my employer didn't have it, I would go home until my elbow got better. Do you think your condition will get better so that you would be able to return to your full duties had he never fired you? Please get back to me if you get some favorable results, I'd love to keep abreast of your situation.
  13. #13
    Willlyjo Guest
    Quote Originally Posted by las365 View Post
    You have no business giving advice here.
    Again, what are you trying to prove? So I typed in my wife's concerns hoping to get a Senior Member like you who I thought had some knowledge to respond to the outrageous thing that some employers do to people. Yet you continue to have a .....ing contest with me. You are one of those know it alls who get jealous when someone like me, a Junior Member invades your space it seems. Well I got news for you...this site is for anyone who comes here! And.....KRH69 would disagree with you that I have no business giving advice here. I don't know what your issue is here, but you should get off of your high horse and act like the intelligent person I really believe you are and try to help some of these victims with good advice like I believe you may have. As far as good advice, anyone who has been through experiences and have had favorable results which may apply to these people who seek direction, has a right to be here to try and help and direct. A Wiseman is a person with the capability to teach with expertise, a skill or knowledge passed to him from another Wiseman or Experience, whether good or bad.
  14. #14
    krh69 is offline Junior Member
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    Willyjo,

    thank you for your response, it has been most helpful. Yes, my employer did know going into this job that I had this condition. My Rheumatologist wanted me to do on 100% disability, but due to the nature of my arthritis, I have good days and bad days. I don't want to be on welfare and live off of the state, I have always worked and want to work. I am only 39 years old and prior to this, the only sickness I had was carpal tunnel syndrome in both wrists from typing.

    Rheumatoid Arthritis runs in my family and unfortunately I contracted it very young, whereas most of my family members get it when they are over 55.

    I am trying to make the best of it, and am see the best Rheumatologist in Nashville, but he says I will have this for life and they only thing that can be done is control flare-ups.

    I am hoping to be able to take any money I may revceive from his lawsuit and open a smaill business which will not be very taxing on my joints and that I can make a comfortanble living at.
  15. #15
    ecmst12 is offline Senior Member
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    OP, Willyjo's advice has been the LEAST helpful thing posted here and you should disregard it entirely.

    You CAN be fired for having a disability, IF the disability prevents you from performing the essential functions of the job. And if you believe you were fired for having a disability DESPITE being able to perform essential functions of the job, you can contact the EEOC - in fact, you MUST before you can even think about a lawsuit! You can expect it to take 6 months to 1 year to investigate your claim. And don't expect to get a lot of money even if you ARE told you have a case - you won't. Right now, you are best off getting an office job that doesn't require a lot of physical activity.

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