Wrongful termination/ Discrimination?

[DETBADawn]

What is the name of your state? Texas


My Husband worked as a route delivery driver for a machine shop that also supplies oxygen,acetalyne etc to welding shops. He was injured off of work hours and confined to a wheelchair for 3 months. After about one week of being off of work, they offered him a toolroom position that was open. He was told he could work 2 hours a day or 10 hours a day. it was up to him, all according to how he felt. After about 3 weeks of working this toolroom job, his employer called him on a saturday and told him that he would no longer be needed in the toolroom position and that he could come and talk to him after he was well. my question is do we have a case? I should probably add that I have it in writing by the company HR person that he is to "contact us when he is able to walk again". To me (although I am no Lawyer), it seems that we have grounds for not only a wrongful termination suit, but also a discrimination suit. Please contact me and let me know if we do or not......
Thanks in advance for your help
Dawn Crocker

 

[hmmbrdzz]

Hi Dawn. Without knowing what medical documentation was given the employer regards your husband's need for a wheelchair and/or regards his need for "accomodations" due to a medical condition, any advice given you here as to whether you do or do not have a claim of discrimination or wrongul termination would be of absolutely no use to you. It sounds like your husband took a 3 mo leave (perhaps FMLA) for injuries, returned after his leave ran out, that the employer made an attempt to reasonably accomodate him, let him work three weeks, fired him, and then said "call us back when you get well". If that's the case or close to it, consult an employment attorney, let him/her evaluate the circumstances surrounding the injuries, the leave, the accomodations made by the employer, any future attempts made by your husband to go back to work, etc. An attorney need to tell you if you have any claims of discrimination and/or wrongful termination. If you get some responses behind mine that say "nothing in your post remotely suggests discrimination or wrongful termination", that would be advice from someone who knows only a condensed version of the whole story. If someone here advises you to call the DOL (department of labor), don't. Before you file a report with any regulatory agency concerning an employment matter, consult an attorney on how to file it specific to your case.

Good luck.


hmmbrdzz

 

[DETBADawn]

My husband never took leave... he was only off of work for 1 week. His employer was given documentation that said that he would be in a wheelchair for 3 months, and the new position was entirely his employer's idea. My husband never asked for re-assignment. my husband was performing well in the new position and the termination came out of the blue, with never a complaint about performance, etc. Are you saying that I should not contact the EEOC or anythiing? Did I mention that I have a signed statement that the reason for the termination is due to the fact that he is unable to walk? I appreciate your replies and advice, as we are unsure as to what to do at this point.

 

[Beth3]

You haven't provided enough information to determine whether your husband has a case or not.

A temporary disability does not qualify as a disability under the Americans with Disabilities Act (ADA.) So if your husband's injuries were such that he was going to be able to return to reasonable physical activity in the forseeable future, he was not "disabled" under the ADA. Even if he was going to be left with a lasting condition that would "impair a major life activity," the employer is under no obligation to make up a job for the individual. They have to make an attempt to reasonably accommodate the individual if he/she asks for accommodation but the disabled individual still must be able to perform the essential functions of the job. It's possible the part-time work in the tool room your husband was doing either wasn't working out or the employer no longer had the type of work available your husband could perform in a wheelchair or due to his skills.

It's possible he should have been offered FMLA - how many employees work for this company and how long had your husband worked there?

 

[hmmbrdzz]

No, I am not saying you should not contact the EEOC. I am saying that it's possible the employer engaged in unlawful employment practices related to your husband's rights covered by the ADA, and that you should contact an attorney before you do anything. Some advice you may receive here may imply that you do not have a complant or may imply you have no remedy or may imply you need to seek remedy immediately. I am advising you -- based on the fact that your husband was confined to a wheelchair and has an impairment and was fired, you may have remedy and therefore need to consult an attorney.

Employers who are covered by the ADA (Americans with Disabilities Act) have to make sure that people with disabilities have an equal opportunity to apply for jobs and work in jobs for which they are qualified. Employers have to make sure people with disabilities have an equal opportunity to be promoted once they are working. They have to make sure people with disabilities have equal access to benefits and the same privileges of employment that are offered to other employees, such as employer-provided health insurance and/or training. Employers have to make sure that people with disabilities are not harassed because of their disability. When employers don't do these things, they've engaged in unlawful employment practices. The process to determine if you will have LEGAL remedy based on allegations your husband has been discriminated can begin by filing a FORMAL complaint of discrimination with the EEOC.

The filing deadlines are within 180 days of the last incident (in CA you have 300 days). In your case, the "last incident" would be the date of termination. If you are near this number of days past the termination and can't consult an attorney prior to filing a formal complaint with the EEOC, you need to understand that your complaint will have been received by the EEOC within 180 days (or 300 days if you live in CA) for them to investigate. If you don't meet that deadling, your husband's employer cannot be legally required to provide you remedy. They might provide it out of the kindness of their hearts or because of some outside pressue, but I wouldn't bank on it.

I'm sorry about your husband. I have a very good friend who was fired from a job. He had advised the potential employer of his limitations (two artificial legs and used a wheelchair), he showed up at work and within three days was fired because they said "we don't have any work for you to do". He was devastated. I helped him find an attorney, his attorney moved to press the issue with the employer, and my friend was compensated very nicely without ever having to file a formal complaint of discrimination with the EEOC, which would have been a very inconvenient endeavor for both him and his employer. I hope this happens in your case. Employers do not want a formal complaint of disability discrimination filed against them, and inasmuch as your husband is in a wheelchair and tried to work -- well -- I hope you get exactly what you want. Employment discrimination against people with disabilities (I can't say what it does here but it sounds like "lucks").

Best of luck to you.

hmmbrdzz

Here's some reading for you. Consult an attorney.


http://www.eeoc.gov/index.html

 

[cbg]

Just a reminder: TEMPORARY disabilities are not covered under the ADA and the employer has no legal obligation to accomodate them. The initial post implies that the disability was temporary. IF that is the case (and I am not saying that it is - we can't know for certain one way or the other based on the info we have) then the ADA is not a factor.