wrongful termination -- bipolar

[jessalme]

What is the name of your state?What is the name of your state? California

my husband was fired from his job last Thursday, he had been working for this new company for 3 months. On June 6 he began to have a manic episode -- not sleeping, and slowly acting unusual. he worked from home and set his own schedule but on Tuesday the 7th he worked with a manager who said he was acting different and told him to take the day off. on Wednesday June 9th he received a prednisone shot from an allergist -- something he had never had before, and it sent his manic episode over the edge. on Friday the 11th he showed up late to a lunch meeting and got into a confrontation with a co worker. that night I committed him to the psych ward at our local hospital where he was released against physician advice on Sunday the 13th.

on Monday the 14th he spoke with his boss and told her I had committed him, I also talked to her and told her he was sick and was seeing a doctor that week to help him with his condition. we contacted human resources and let them know he was seeing a doctor the following day. his manager told me that he was in danger of losing his job because of his behavior on that previous Friday and told me to have him take Wednesday, Thursday, and Friday off, but to work Monday and Tuesday from home and not be in contact with anyone from his job. needless to say he was still in a manic state and completely drugged up from the hospital stay. we went to see a doctor on the 15th and saw him every day that week. the doctor diagnosed my husband as bipolar and started him on medications, my husband had been diagnosed with bipolar 1 1/2 years earlier but had not been medicated and was not having any symptoms or manic/depressive episodes, we thought he had been misdiagnosed.

the following week we continued seeing his new doctor and the new doctor said the prednisone shot probably contributed to the manic episode, wrote us a note which we mailed to the manager as well as human resources. the doctor advised my husband not to do presentations he had scheduled that week (this advice was given on Monday), I called his boss that afternoon and told her what his doctor said about not doing presentations, again told her he was sick and still seeing the doctor, she said he was still being investigated and it would be in his best interest to do the presentations and work that week. he did the presentations and worked a normal week dispite poor memory, concentration, anxiety, and manic feelings caused by the episode and the medication.

my husband also worked the following week, still hearing nothing from his manager about being fired, only was sent a performance evaluation asking him to email her every night with his duties from that day as well as duties scheduled for the next day. up until this happened he received nothing but the best praise and even had letters written to managers about how great he was to work with, his manager had told me he was one of the best people she had hired. then on wednesday (this is June 30) he received a letter telling him how to pack up his equipment on his last day of work, and a letter from his manager saying she needed to meet with him. on July 1st he called her and asked her if he was fired, she said yes, she wanted to tell him in person, and that night we contacted his aunt who is a lawyer. she said we have a case, I am just wondering from other people if we do. sorry this is so long, there are more details but obviously this is probably enough information for now. thanks for your help!!

 

[cbg]

Based on the information in your post, I'm not seeing a case. Not a clear one, anyway.

First of all, the law does NOT say that if you're bipolar, you get a pass on inappropriate behavior. Even assuming that his condition qualifies him under the ADA (which is not automatic and must be assessed on a case by case basis) it is NOT a "reasonable accomodation" to allow him to "confront" his co-workers inappropriately.

Secondly, since he had only been with the company for three months, he was not entitled to any FMLA leave, and California has no state-mandated leave time that qualifies in this instance. They can fire him for an extended absence.

Third, even under the ADA if he is unable to perform the essential functions of his position with or without an accomodation, the company is not required to keep him on. If it is an essential function of his position that he do presentations and he is flat out unable to do them, that *probably* would be legal grounds for firing him.

Now if they are firing him SOLELY because he is bipolar, then yes that is illegal. But if he is being fired because of the confrontation with the co-worker, that is legal; if he is being fired because of extended absence that is legal; and if he is being fired because he is unable to perform the essential functions of his position, that is also probably legal.

BTW, HR managers are taught that it is discrimination to assume someone needs an accomodation if they do not ask for one, EVEN IF they know that the employee has a potentially qualifying condition under the ADA. ("How dare they assume I can't do my job!") It is the responsibility of the employee to ask for an accomodation - it is not the job of HR or management to assume that one is needed. Informing them that he has a potentially qualifying condition is NOT enough.

 

[jessalme]

thanks for your info.

it was hard to get all the info in such a small space...

first, the other co-worker confronted my husband, he did not start or continue the argument, in fact he left when the other co-worker confronted him. as far as the lunch he attended, his managers were on his side and expressed suprise that he was even being considered being fired because of the situation.

second, he did not take any extended leave. he took three days off which he was told to do so by his manager, he had accrued three days sick time by this time. he went back to work the following Monday and did his job just as well as he had (which from his records was excellent) even though he wasn't 100%

third, with proper medication he is completely able to perform all essential functions of his job. it was suggested he not do presentations for that week since the medications he was on were causing memory loss and mental confusion. but he DID do the presentations that week, and did them very well according to the people he worked with.

the job he has is contracted by a big company, it was a manager from the big company, not his company, that wanted him fired. he still has not been given an exact reason why he was fired, we are speculating that it has something to do with the lunch, but it has never been said what he did that would cause him to be fired. there is another woman who was at the lunch who witnessed the incident. the company my husband works for is contracted by this big company and the big company is in process of seeing if they are going to sign on a new contract, so the company my husband works for is in a place where all their jobs may be lost.

my other question is how can he be held responsible for acting in a certain way (if he was confrontational) when he was in a complete manic state (which, in bipolar, the person has NO control over) of a disease he did not know he had and was not on medication. to me it's like firing someone for breaking a table while having a seizure when they didn't know they had epilepsy and when the epileptic gets on medication and has his disease under control he is 100% functional at his job

and, if he was so unable to perform the functions of his job, why didn't his company put him on unpaid leave or fire him right away, why did they wait and make him work 3 weeks after the incident and then fire him?

 

[cbg]

Again, unless he is being fired SOLELY because he is bi-polar, it is almost certainly legal. California is an at-will state; he can quit for any reason at all, at any time, and he can be fired for any reason not prohibited by law. They do not have to have "grounds" to fire him; they can fire him because they don't like the shirt he is wearing or because he cheers for the Giants and his boss is a Dodgers fan.

That being said, the addiitonal information strengthens your position but still does not give him an incontrovertial wrongful termination case.

How can they hold him responsible for his behavior when it was based in a medical condition? Quite easily. NOTHING WHATSOEVER in the law requires that they accept behavior in a "disabled" (again, we have not definitely established that he qualifies as disabled under the ADA although it seems likely) employee that they would not accept in a non-disabled employee. Whether he can control the behavior or not is irrelevant; they DO NOT HAVE to allow him to behave in a way that they would not accept from another employee. Nor does the law give them a specific time frame in which they have to take action. They chose to do an investigation, which is not only their right but is the preferred course of action; they also chose not to take any action against him until the investigation was complete. Chances are that if they had not done so but had acted immediately to suspend or fire him, you would be here complaining that they had not done any investigation or given him the benefit of any doubt.