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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I went back to work after taking 5.5 mths for maternity and

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I went back to work after taking 5.5 mths for maternity and baby bonding leave. When I got back to my LAN/WAN Support Analyst position they had demoted me to picking up operator calls. Furthermore, after showing how effective and proficient I was at answering phone calls and managing Service Management requests and Incident Issues via email, management was able to show a rise in productivity by 26%. Management stated that my absences impacted operations. As the rest of the 6 member team (including my direct supervisor) was unable to pick up the slack. In the 6mths I had been there, I was sick a few times and was provided a warning, though I had ample vacation time to cover my loss hours. Then they fired me for being absent when my father was visiting if I had the time? Can I sue them for discrimination?
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Were you out on FMLA or another type of protected leave?

Did you request to be covered for vacation time when your father was visiting?
Customer: replied 4 years ago.

Hi Joesph,


 


Yes, I was under FMLA and Family bonding time prior to going back to work. I did have vacation time and requested to use that time but was denied.


 


Thank you,


Joy

Yes, you do have the basis for a claim for discrimination and retaliation due to your use of FMLA leave and family bonding time.

Unfortunately, however, as an at-will employee, your employer is free to restrict your use of earned vacation time, so it would proably be considered a justifiable termination that you took time off without approved vacation time.

In order to prevail on a case for discrimination/retliation, you would need to be able to demonstrate that your employer actually terminated you due to your use of protected leave and not because you missed work, which is difficult to do.

That said, it is still worthwhile to file a complaint with either (or both) the EEOC and DFEH for discrimination.

You can file a charge with the EEOC using the instructions available online here:

http://www.eeoc.gov/employees/charge.cfm

You can file a complaint with the DFEH for discrimination using the instructions available online here:

http://www.dfeh.ca.gov/Complaints_eCompProc.htm

The DFEH and/or EEOC will investigate your complaint on your behalf and either file suit on your behalf or issue you a 'right to sue' letter so you can pursue your claim against your employer through a private attorney.
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