Fired for using the internet

[sunnygigglegirl]

What is the name of your state? FL
I was fired on Friday for allegedly violating the company’s internet policy. A report was ran that showed access to sites that were educational, government, shopping and other sites I could offer business reason for being on them. I was also seeking accommodations for a disability since January after I was written up for being out of work (I was in the hospital). I was waiting for 2 months for a response to my request for accommodation and every time I would challenge my boss he would take away projects and give me attitude. I am going to file a complaint with the EEOC for discrimination and retaliation but I was wondering what you all think of inconsistent use/ application of policies. Although we are a private company and the 4th and 14th amendment would not provide me privacy and they can monitor me, is there a defense for singling me out? I was able to provide 5 other department members that have been on line paying bills, planning a wedding and doing homework on work time. Since I was the only one singled out what do you suggest?

 

[justalayman]

Since I was the only one singled out what do you suggest?

finding another job elsewhere. as long as the rules were not illegally enforced due to illegal descrimination, you don;t have a claim.

 

[Betty]

Agree - as long as you weren't terminated JUST due to your disability or other protected "class" (ie age, religion, gender), there was no illegal termination/discrimination.

 

[sunnygigglegirl]

Are you sure?

I am claiming retaliation. the law I found was:
Title VII Retaliation Claims - First, Plaintiff must establish a prima facie case of retaliation, which requires a showing: (1) that she engaged in protected activity; (2) that she suffered an adverse employment action; and (3) that a casual connection exists between the protected activity and the adverse action. See Burlington Northern and Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2415 (Jun. 22, 2006); see also Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 439 (5th Cir. 2005); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). If Plaintiff establishes a prima facie case of retaliation, the burden shifts to Defendants to proffer a legitimate, non-retaliatory reason for their actions. See Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); Rios, 252 F.3d at 380; Medina, 238 F.3d at 684. If Defendants meet their burden, Plaintiff may still prevail by showing that the reasons given by Defendants are a pretext for retaliation. See Gee, 289 F.3d at 345, Rios, 252 F.3d at 380; Medina, 238 F.3d at 684. Nevertheless, under a pretext theory, Plaintiff has the ultimate burden of showing that the allegedly retaliatory employment action would not have occurred “but for” her participation in the protected activity. See Mato, 267 F.3d at 450, Rios, 252 F.3d at 380; Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001).
1. Elements of Prima Facie Case of Retaliation
a. Protected Activity
The first element of Plaintiff’s prima facie case can be satisfied be by demonstrating that she either opposed Defendants’ unlawful employment practices or that she participated in an investigation, proceeding, or hearing inquiring into Defendants’ unlawful practices. See 42 U.S.C. § 2000e-3(a); Douglas v. McDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998).
b. Adverse Employment Action
Under the second element, Plaintiff must show that she suffered an adverse employment action as a result of engaging in protected activity. The United States Supreme Court recently clarified the standard for what constitutes adverse employment action in retaliation cases. The Court held that an adverse action is one “that a reasonable employee would have found...materially adverse,” i.e., one that might “dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington Northern, 126 S. Ct. at 2415.
I was out due to disability, requested several times for accomidation and due to my complaints and requests I was singled out and terminated. 3 other people were allowed scheduled changes for non medical reasons and they were not terminated due to using the internet. Couldn't i argue that I was singled out because of my disabilty?

 

[moburkes]

What is this disability that you are claiming?

 

[sunnygigglegirl]

The disability is a chronic auto immune urticaria/ angioedema. When I have attacks I am covered head to toe in hives. My eyes swell shut and I become respiratory and have taken to the ER 5 times. I have been treated for the condition since 12.14.06, and was last hospitalized on 1.5.08 and 1.7.08 (at the hospital I worked in). I have medical certification ad requested accommodation verbally several times and have in writing on 1.24.08 from my VP saying they recognize my request and complaint and they will contact my doctor. They never did.

I got a new boss in late December and after my hospitalization he wrote me up for the absences, I claimed ADA and he started taking away projects and then fired me. I called the ethics line and things only got worse after the investigation.

 

[moburkes]

What accomodation are you requesting? How many days have you missed from work in the last 12 months?

 

[sunnygigglegirl]

I have missed 10 days and had to come in late several times for doctors visits. I was also tardey several times as I experience most of my attacks in the evening and the medication makes me drowsy and I usually had to wait for my eyes to de-swell and open before I could drive to work. I was seeking a schedule change from 8am to 9am to allow for the medications and swelling to go down. 3 other people were allowed to change ther schedule for child care and commuting reasons. I was not allowed. Please note I always made up the time missed and until this new boss came along I was allowed. He decided to stop it in January and hold the time against me. I was late in on Wed due to hives and on Friday he termed me for using the internet. I had a business reason for every site but one. Another person has been plaining her wedding on the internet daily and has had no action taken against her.

 

[sunnygigglegirl]

Oh ya - he deleted my time punches for the last time I stayed late to make up the hour missed for a doctors appointment.

 

[las365]

I think it sounds like you may have a valid claim for discrimination and retaliation. You should consult an experienced employment law attorney in your area to find out for sure.

 

[sunnygigglegirl]

Thanks - should I rely on the EEOC or a private attorney.

 

[moburkes]

Were you eligible for FMLA?

 

[las365]

If I were you, I would seek advice from an attorney in private practice. The EEOC's investigators are not usually attorneys, they have a lot of cases to review, and their job is to investigate the claims, not to be your advocate.

 

[sunnygigglegirl]

No as i was not there a year and work 1250 hours. Tried to force me to take a leave, but since I could not tell when I was going to have an attack, I didn't see reason to take a unpaid leave. My doctor also encouraged working as long as I wasn't having a attack. I am currently under a agressive treatment that requires me to go to appointments on a bi-weekly schedule for monitoring. If my doctor found evidence in the blood work that I needed to stay out of work, he would have told me so.

 

[moburkes]

No as i was not there a year and work 1250 hours. Tried to force me to take a leave, but since I could not tell when I was going to have an attack, I didn't see reason to take a unpaid leave. My doctor also encouraged working as long as I wasn't having a attack. I am currently under a agressive treatment that requires me to go to appointments on a bi-weekly schedule for monitoring. If my doctor found evidence in the blood work that I needed to stay out of work, he would have told me so.

I don't see that you have any case. A boss isn't required to give every single person that asks, a schedule change. Plus, I can't figure out how, if you have no idea when you'll have an attack, that a one hour change in schedule would be sufficient for you to go to work. If, for example, you have an attack at 3am, having to be at work at 9am won't be any easier than having to be at work at 8am. If you have an attack the previous evening at 5pm, what is the 1 hour difference in your schedule going to do?