Closed Thread
Page 1 of 2 12 LastLast
Results 1 to 15 of 21
Like Tree1Likes

Thread: Fired while on FMLA

  1. #1
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8

    Fired while on FMLA

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

    hello i am asking for some professional advice as to what my options are as far as my case.

    Some Background:

    Employer - Walmart
    Job Title - Apparel attendant/associate
    Date Fired - 8/26/10
    LOA Leave started - 6/26/10

    FMLA approved for following symptoms
    pericarditis, shortness of breath, polyps, Dizziness

    In may 2010 i was having severe bowel problems so i was seen by a professional who later used scopes and found that i had rectal polyps that were precancerous.

    Later that month i scheduled to have them surgically removed, all went well witht he surgery.

    At this time had not taken out any sick days of leave and i was only working part time so i was able to recover from my surgery by time to go back to work again.

    After returning back to work i had to call my husband to come and pick me up from work due to dizziness and shortness of breath, a few days later i was seen by another doctor which ran stress tests and other tests only to find that i had anxiety and pericarditis both causing my shortness of breath and dizziness.

    I was given a doctors note that i could return back to work and only perform light duties. My manager informed me that if i gave him that note they would not let me come back to work. So needing to support my family i went back to work and was positioned in a more relaxed atmosphere as a (jewelry associate), once again i felt the feeling of someone sitting on my chest again but just overloked it throughout the next few days, eventually after about 5 days i couldnt take it anymore and had to call my husband once again. I filed proper paperwork for FMLA leave and was granted the time to recover from my illnesses.

    During my time out on FMLA i was asked by my manager to return in to complete my CBL's (Kiosk Testing) I planned a time to come in and take the tests but before that day came about i was admitted into the hospital for the same old symptoms not being able to breath and falling over dizzy. after my 1st day in the hospital i called my manager to let him know what had happened but he was unavailable at the time so i left him a message which he did receive.

    On 8/24/10 i called in once again to let my manager know that i was being discharged from the hospital the following day. It was then that he let me know that i was terminated from employment.

    I filed for unemployment shortly after this and was denied because my manager told them that i had abandoned my job. I Appealed this quickly and was given a phone hearing where all parties including myself ,my HR manager ,and my Dept. manager attended on a conference call. When asked if i had abandoned my job my i told them what had happened at the hospital over the phone. The appeals referee asked the manager if he fired me and he admitted to it therefore turning my appeal in my favor for unemployment.

    I was just recently told that i could sue walmart fo the way that they conducted business with my termination. I have seeked legal counsel and they have informed me that i have a case since i was terminated before my return date was up.

    sorry for the long story here but my questions are what type of monetary goal would sound reasonable? I keep hearing that it is entirely up to me but i really have no idea what i should realistically be asking for. I have been unemployed now for 18 months seeking new employment everywhere to no avail. my pay when terminated was $10.65 per hour.

    Due to being terminated the way i was it really did cause a huge financial burden on my family causing us to have to move out of our home due to less income. We also had to downgrade our nice vehicle selling it for a clunker we have now just to make ends meet we also sold many other possessions. The house we had to move from was a house that we were going to purchase from the owner. The owner was going to take into account the 2 years worth of payments that we had already been making on the home at $850 per month.

    So im really confused as to what i could expect to get from all of this ive been told basically only back pay and possibly 6 months of front pay, but what about all of the other things that were lost due to all of this?

    Thanks for any help you may have to give me.
  2. #2
    Proserpina is offline Senior Member
    Join Date
    Mar 2009
    Location
    Coveting your Pinterest boards
    Posts
    39,152
    Did the attorney/s you spoke to offer to take your case?
  3. #3
    Betty is offline Senior Member
    Join Date
    Jan 2006
    Location
    Il.(near StL, Mo.)
    Posts
    3,299
    You can file a FMLA private lawsuit within 2 years of the employer's FMLA violation or within 3 years if the violation was willful.

    If you prevail in a lawsuit, you might be entitled to some of the following: lost wages, lost employment benefits, interest on damages, money damages set by statute, reinstatement, promotion, attorney's fees & legal costs....

    You said you have legal counsel. Your best bet is to get an idea from him/her as to what you might be entitled to in your situation.
    Last edited by m martin; 01-29-2012 at 11:37 AM.
  4. #4
    Ozark_Sophist is offline Senior Member
    Join Date
    Sep 2006
    Location
    Missouri Ozarks
    Posts
    3,354
    How many hours did you work in the year prior to the first day of leave?
  5. #5
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    Quote Originally Posted by Proserpina View Post
    Did the attorney/s you spoke to offer to take your case?
    yes they took the case

    Quote Originally Posted by Ozark_Sophist View Post
    How many hours did you work in the year prior to the first day of leave?
    i was working exactly 30 hours per week prior to first day of leave.
  6. #6
    cbg
    cbg is offline Senior Member
    Join Date
    Nov 2001
    Location
    Massachusetts
    Posts
    33,981
    Okay, let's try this again.

    On what date were you initially hired?
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  7. #7
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    Quote Originally Posted by cbg View Post
    Okay, let's try this again.

    On what date were you initially hired?

    i was hired on june 13th 2008
  8. #8
    cbg
    cbg is offline Senior Member
    Join Date
    Nov 2001
    Location
    Massachusetts
    Posts
    33,981
    Thank you. In that case, I agree that you have a potential violation here.

    However, it would be inappropriate for anyone here to make a guess at what would be an appropriate settlement. That is what you hired a lawyer to tell you.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  9. #9
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    Quote Originally Posted by cbg View Post
    Thank you. In that case, I agree that you have a potential violation here.

    However, it would be inappropriate for anyone here to make a guess at what would be an appropriate settlement. That is what you hired a lawyer to tell you.
    I would agree with that in most circumstances but my attorney just keeps telling me that the decision on money is entirely up to me as is the agreement to settle for any offers that are countered to my proposal and wont even give me a ballpark figure. if it is possible could you give me a ballpark figure of the most and least amount and the chances of getting those then i could roughly take a stab at a price that is fair and reasonable.

    Edit: also for reference my attorneys fees are 45% plus other fees such as postage and other office stuff she said. i would like these fees paid as well by the settlements if possible

    sorry if it just sounds like im trolling here now but i really do need just a ballpark figure. i look type "how much to settle for fmla lawsuit" into google and i get numbers thrown around everywhere but most of the actual cases i have read through describe people getting anywhere from $150,000 - $400,000 but are these even realistic figures for my case?
  10. #10
    cbg
    cbg is offline Senior Member
    Join Date
    Nov 2001
    Location
    Massachusetts
    Posts
    33,981
    We. Don't. Know.

    We do not have all the facts or details that we would need to make even a UNeducated guess, let alone an educated one. Nor should you post those details online.

    It would be irresponsible in the extreme for anyone on a message board to give you any kind of figure at all; and quite frankly, it would be irresponsible in the extreme for you to take that kind of direction from an unknown person off the internet.

    I say again, this is a question for YOUR ATTORNEY to answer.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  11. #11
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    ok sorry for the trouble then i figured since the name of the site was freeadvice i could get "free advice" since it is not a question my attorney is answering in a way that i want her to answer it. thanks for the help everyone.
    dsands321 likes this.
  12. #12
    ecmst12 is offline Senior Member
    Join Date
    Feb 2006
    Location
    Philadelphia, PA
    Posts
    35,403
    Some advice, you just can't get for free. Sorry. But walmart has deep pockets and should ABSOLUTELY have known better than to violate FMLA so blatantly. Just be patient.
  13. #13
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    okay just a quick update from what ive read everywhere is that the most im probably looking at going for is backowed since i wasnt on any insurance with them at the time and its been a while since i was fired so no front pay niether.

    i was looking into punitive damages and emotional distress but found that those cant be claimed through an fmla lawsuit but could be claimed through florida wrongful termination.

    is wrongful termination on a state level an option i would have and would it be in the same case or a seperate case all together. and what kinds of things could be used as a case for punitive damages and emotional distress?

    would my having anxiety and having to take medication for the anxiety since i was fired be tied to emotional distress.

    basically what im really wanting to know what are some factors of emotional distress and punitive damages. thanks for any replies.
  14. #14
    Proseguru is offline Member
    Join Date
    Dec 2011
    Posts
    592
    If you want to ballpark it ... figure out you loss in income(compensatory damages) .... then take that and add punitive damages (hard to get punitive damages ; punitive damages about 3x the compensatory damages)...

    the compensatory + punitive will give you a general range.

    But since you had no idea of the possibility of a civil suit .. its possible that you cannot prevail due to the lack of records regarding your job search after the date of termination. Its called a mitigation defense and it could win the day for Walmart. Do you have a log of your job contacts since you were fired? A minimum of 3 contacts per month will be needed to be documented or testified to (complete with prospective employers' names) -- if you cannot do this then I would not bother, really. If your lawyer says that is not a problem (that you cannot detail you employment search efforts) then put that into your contract with him, that if you lose due to mitigation issues then he gets nothing -- he'll back pedal I'm sure. Just something to consider in your assessment of your chances.

    And 45% fees + lawyer's costs is very high ... most charge 33%.

    Oh, and any compensatory damages are taxable .. (after the % lawyer takes out) and most of the time punitive damages are too.

    Pain, suffering etc are almost never awarded unless an actual physical injury occurred; which is not your case.

    Plus, expect 3-5 yrs for litigation.

    And I don't know if Walmart offers settlement offers in these types of cases.

    So I would make a quick guesstimate that your best $$ in your pocket money from the suit would range between $3000 - $10000 assuming you now have a new job.

    You job was not a high paying job .. so your losses are not remarkable.
    Last edited by Proseguru; 01-29-2012 at 02:27 AM.
  15. #15
    IKROWNI is offline Junior Member
    Join Date
    Jan 2012
    Posts
    8
    Quote Originally Posted by Proseguru View Post
    If you want to ballpark it ... figure out you loss in income(compensatory damages) .... then take that and add punitive damages (hard to get punitive damages ; punitive damages about 3x the compensatory damages)...

    the compensatory + punitive will give you a general range.

    But since you had no idea of the possibility of a civil suit .. its possible that you cannot prevail due to the lack of records regarding your job search after the date of termination. Its called a mitigation defense and it could win the day for Walmart. Do you have a log of your job contacts since you were fired? A minimum of 3 contacts per month will be needed to be documented or testified to (complete with prospective employers' names) -- if you cannot do this then I would not bother, really. If your lawyer says that is not a problem (that you cannot detail you employment search efforts) then put that into your contract with him, that if you lose due to mitigation issues then he gets nothing -- he'll back pedal I'm sure. Just something to consider in your assessment of your chances.

    And 45% fees + lawyer's costs is very high ... most charge 33%.

    Oh, and any compensatory damages are taxable .. (after the % lawyer takes out) and most of the time punitive damages are too.

    Pain, suffering etc are almost never awarded unless an actual physical injury occurred; which is not your case.

    Plus, expect 3-5 yrs for litigation.

    And I don't know if Walmart offers settlement offers in these types of cases.

    So I would make a quick guesstimate that your best $$ in your pocket money from the suit would range between $3000 - $10000 assuming you now have a new job.

    You job was not a high paying job .. so your losses are not remarkable.
    i cant thank you enough for framing this all in for me and helping me understand the process.

    i attained unemployment directly after my termination and it is required to have 3 job searches per week. which i have done religiously the only places left for me to even apply to would be telemarketing which is what ive just started into applying for.

    as for the lawyers fees i figured those were very very high, but they informed me that they would be working on the basis that if i dont win that they dont get paid.

    if my math is correct i have been terminated from employment for about 18 months. so $10.65 x 30 hours per week = $319.50. then $319.50 x 4 = $1278.00 x 18 =$23004.00

    i think that is correct but you said to also add in punitive damages how would i put a price on that though?

    if i understand correct punitive damages are basically just money that is awarded to the plaintiff to punish the company for there wrong doing. so is this a number i need to calculate or is this a number that is imposed by the judge/jury if we were to make it that far?

    i also found this while searching more into punitive damages:

    "The FMLA does not permit the recovery of emotional distress or punitive damages"
    [url]http://federalfmla.typepad.com/fmla_blog/damages/[/url]

    sorry once again for keeping this going Proseguru your response was basically exactly what i was looking for. so these last few questions should be my last.
    Last edited by IKROWNI; 01-29-2012 at 03:46 AM.

Similar Threads

  1. Can you be fired while on STD w/o FMLA?
    By Donna.Lowe in forum Hiring, Firing & Wrongful Termination
    Replies: 2
    Last Post: 10-21-2008, 07:56 AM
  2. Took a FMLA then fired same day for being gone
    By vind21 in forum Hiring, Firing & Wrongful Termination
    Replies: 6
    Last Post: 06-25-2005, 04:37 PM
  3. fired because of FMLA
    By drymist in forum Hiring, Firing & Wrongful Termination
    Replies: 1
    Last Post: 10-25-2003, 07:10 AM
  4. Fired for FMLA USE?
    By sheracr in forum Hiring, Firing & Wrongful Termination
    Replies: 3
    Last Post: 08-18-2003, 07:46 AM
  5. fired while on FMLA
    By aperillo in forum Hiring, Firing & Wrongful Termination
    Replies: 3
    Last Post: 06-21-2002, 09:28 AM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.