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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17269
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I was terminated during my 90-day probation period 2 days ago.

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I was terminated during my 90-day probation period 2 days ago. I feel
that I was wrongfully terminated, and can potentially show misconduct on the part of the employer, who threatened to with hold pay as disciplinary action. Also, I disclosed a disability during my training period, recieved no accomodation, and was issued a written warning anyway. The reasons I was fired were arbitrary and inconsistent with how other employees are treated. Virginia is an "at-will" state, and it was within the probation period of employment. Do I have a case?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 4 years ago.
HelloCustomer

As you know, in an employment at will state an employer can generally terminate an employee for any, or no, reason. The restriction though is that the termination cannot violate an employment contract, company policy or antidiscrimination laws. In your case, you say that you have a qualifying disability and that your employer knows about it and that you have requested accommodation but were refused. The employer cannot take an adverse employment action or otherwise take action that either discriminates against someone who is disabled under the ADA, or take an action which has a disproportionate result on the disabled. As far as accommodation goes, the employer must make reasonable accommodations as long as by doing so it does not create an undue burden on the employer. The employee though, must still be able to perform the essential functions of their job with or without accommodation. These rules apply whether you are in a probationary period or not. If you feel that you have either been terminated because of your disability or in retaliation for a request for accommodation, then you can file a complaint with the EEOC. You might also want to consult with a local employment law attorney who, after listening to all the facts in your case, can give you a better idea of your best options. All of the facts in your case, including the threat of withholding of pay (which is illegal), are relevant.
Customer: replied 4 years ago.

Thank you very much for your response.

One more question:

I disclosed verbally (during my training period )to my direct supervisor what the nature of the disability was, and what accommodations I needed. I printed up a booklet on my condition and gave it to my supervisor (which she later said she never read). I asked for a training module via computer, but was refused. This was all 3 weeks prior to recieving a conduct warning. I feel this was retaliation for pursuing misconduct on their part for a separate issue...they circled back around and penalized me for mistakes they had earlier excused.

 

My concerns:

Although I requested a note from my doctor to have on file with them, she was out of town and I did not have it in my possession until days prior to termination. I intended to get it to them but simply was fired before I could do it. I DID complete requested paperwork AFTER I received a written warning and a PIP (they asked me to put in writing my limitations, a description of the condition, and include my doc's contact information.

 

My Question: was my verbal disclosure and request for accommodation sufficient, or can they say that disclosure occurred only when I put those things in writing at their request.

It appears that the law does not prevent an employer from removing a disciplinary action if the disclosure occurs during or after the process, but in my case, the verbal disclosure was well before that.

Expert:  Marsha411JD replied 4 years ago.
Hello again,

As soon as your employer knew of your disability and you requested accommodation, they were on notice of the issues of your situation and were under a duty to take steps to evaluated if they could accommodate you without an undue burden on their business. The fact that you did your paperwork, whether before or after discipline, really doesn't have much bearing on whether or not they needed to accommodate you. If might ultimately have some relevance to their motivations for terminating you, but that would depend on all the facts.
Customer: replied 4 years ago.

Two last questions (you have been quite helpful).

 

1. They will certainly try to demonstrate that the reason I was terminated was performance related (insubordination, lost revenues, etc.) I believe I can easily argue this, of course, but is it relevant to their lack of appropriate accommodation? It would help my case that I am incredibly overqualified for the job I had.

 

2. What sorts of compensation for damages could I seek in a lawsuit?

 

 

Expert:  Marsha411JD replied 4 years ago.
Hello again,

Of course the employer is going to argue performance was the reason for their decision, but if they could have accommodated you without an undue burden to their business, and that accommodation would have improved your performance to an acceptable level, then their defense may fail. As for potential damages, in order to get any sort of idea about a ballpark range, you should speak with a local employment law attorney who will be in a better position to gather and evaluate all the facts including your qualifications, future employability, wages and duties for the job you were terminated for, and any other foreseen damages, along with the attitude of the local judiciary and juries. There is no common or normal amount of damages, this is a very fact specific determination.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17269
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
Marsha411JD and 6 other Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Hello again. Thank you for your help previously.

I have some follow up questions pertaining to this same issue. I have sought legal counsel locally, but am having much difficulty securing an appointment over the holidays.

In summary, my case revolves around the following points:

1. I disclosed a disability twice, and received NO accommodation.

2. Weeks later, my supervisor threatened to withhold my paycheck if I had any unresolved contracts (I understood this to be monies earned, not pending monies). I learned that this had been done already to another employee. I felt this was an in- appropriate and illegal thing to do. I sent an email asking about the policy on this to the Director of HR (good friend of my boss). She copied my boss on her response, and 4 days later I was put on a PIP and given a written warning for "sig contract mistakes", "poor attitude", and 2 other actions that I had actually been given permission by management to engage in.

3. 2 weeks later, I was taken off the PIP. However, another 3 weeks later I was terminated for additional "performance" reasons that were frankly, flimsy and rediculous (I have documentation that supports the rediculousness).

4. I was told "this might not be the right job for someone with your disability", "you seem like you have a lot of problems", and "when you go to HR, you go over everyone's heads!"

5. I am very overqualified for this position. With proper accommodation, I feel like I could have done extremely well much sooner. However, I believe my immediate supervisor felt threatened by my experience and has taken every opportunity available to remove me.

 

I do not feel that I have recourse through the chain, as my supervisor, boss, boss's boss, and HR director are all close friends. I believe I was the victim of discrimination, retaliation, and hostile work environment.

 

My question:

1. I apparently have 5 days to meet with the Director of HR. Does failure to follow that protocol weaken any case I might want to bring forth? Could it be a leveraging point somehow? Would it be to my advantage to try to go to HER boss, or just leave them out entirely at this point and seek legal counsel?

2. If I were to somehow get my job back, how could I be protected from retaliation?

3. If I didn't choose to return to work, could I pursue damages?

4. Objective opinion: you obviously do not have all the facts, but based on what I've told you...as a lawyer would you consider this a compelling case to pursue, and if so, what would you seek as reasonable damages?

5. Does it matter that I was taken off the PIP (i.e., could my employer potentially argue that I was not terminated because of this?) I think it's important to note that the written warning was not withdrawn despite ADA rule, and was part of the 3-step process of termination. Also interesting...I was given a verbal warning...then a written warning for the same thing days later-despite no repetition of the behavior!

 

I am most concerned about the advantages/disadvantages of going through HR.

 

Thank you in advance!

Anna

Expert:  Marsha411JD replied 4 years ago.
Hello again,

1. If you are saying that you have appealed your termination with the company and the HR Director wants to meet with you, then you should attend that meeting in an effort to allow the company to correct their actions. If you don't, then yes, it could hurt your case going forward, since you would not have exhausted all of your remedies with the company.
2. If you do get your job back, the best protection is to follow all the rules and procedures to a tee and to keep a record of your performance and any conversations you have with management about your performance or your disability. There is never a guarantee that you won't be retaliated against, but it isn't in the company's best interest, and if you keep records you can document it.
3. If you are offered your job back, then if you refuse that offer, it will be difficult, but not impossible to pursue damages. You could try to argue that your reputation in the workplace had been damaged and that you could not be effective there. Another option here is to reach a monetary settlement versus a return to the job. They may also offer you that as an option. For example a severance agreement for 3 months pay in exchange for a release on your part.
4. Based solely on what you have told me, your facts do appear to support at least a prima facia showing of discrimination in violation of the ADA. The most compelling evidence in your favor are the statements about you not being in the "right job for your disability" and the refusal to address your accommodation requests. As I said before though, I can't give you a range on reasonable damages. Those factors I discussed before are relevant though to figuring out what will make you "whole." These cases are not generally cases where you can expect to get rich. Your damages would be less than they would be if you would have worked for the company as a long time employee versus one still in a probationary period.
5. The order and manner that they used to correct your performance issues is relevant if it did not conform to their own rules. For example, a verbal warning and then a written warning before you had an opportunity to perform under the verbal, might not follow their rules. It certainly doesn't give you an opportunity to conform.
Customer: replied 4 years ago.
Would you advise going to the boss of the HR person rather than the director that I felt was not acting in my best interest?
Expert:  Marsha411JD replied 4 years ago.
Hello again,

Usually the HR Director is the one who is appointed to handle all employment issues, so the likelihood of their boss, who should be the President or someone very senior in the company, of agreeing to meeting with you, is doubtful. But you can always ask. At this point though, what you might want to do is see what the HR Director has to say. If it isn't satisfactory, then maybe you might request to speak to their boss. One thing to keep in mind is that it isn't likely that at this point anyone in the company has your best interests in mind. They are interested in protecting the company.
Customer: replied 4 years ago.

I don't expect the company to have my best interest at all, which is why I wonder if it's an advantage to even show my cards. I have filed a complaint with the EEOC, and wonder if I should just step back and let them conduct their investigation in a few weeks vs. going in and allowing the company time to prepare for it in advance.

My concern is that the Director of HR may cue my former managers to circle back and destroy documents...or suppress evidence in some way. She is friends with all involved.

 

What do you know about the EEOC and what they can do? Do they act as lawyers?

Would it be most prudent to skip the meeting with HR and simply wait for them to handle it?

 

We do have a Vice President of HR. I can attempt a meeting with that person.

You mentioned that these are not cases to "get rich" off of...too bad (ha ha), but
I'd settle for just giving them a hard enough time that they'll think twice about treating

anyone else this way.

Thank you

Expert:  Marsha411JD replied 4 years ago.
Hello again,

Thank you for the additional information. Since it turns out that you have already filed a complaint with the EEOC, then the information I gave you about exhausting your administrative remedies with the company is moot. Whether you attend the meeting is up to you based on how you feel about it's productivity. Ultimately what you want out of this is either your job back, some remuneration for their actions, or just a change in the way they do business. Whatever gets you to that point, is what you want to do. You can attend the meeting and just be in the receive mode and listen to what they say, without making any statements. If you don't feel like you could do that, then you can instead wait for the EEOC investigation. They will give the employer the opportunity to respond to your allegations and then make a determination about whether they will issue you a "right to sue letter" or take the case on themselves. The later is less usual than the former. The right to sue letter doesn't mean you will win your case in court, it just means they have finished their investigation and find merit in what you have alleged. If I were you though, I would still follow-up on consultation with a local employment law attorney, so that you don't inadvertently take a misstep in your case.
Customer: replied 4 years ago.

This is an email I am preparing to send to my managers regarding my issue.

I have an appointment with an employment lawyer this Saturday.

 

Would you review and let me know if there is anything in here that could be damaging to my case?

I greatly appreciate it and will choose to "accept" at this point. Thank you for all your feedback.

_______________________________________________________________

 

Hope, Thank you for calling me yesterday to follow up on my request for an appeal process regarding my recent termination on December 17th, 2009. I believe I have a strong case for misconduct and wrongful termination on the part of my managers. As you are well aware, Virginia is an "at will" state, but with some exceptions. I think it may be of interest to Riverside to know that my former managers are in violation of a Federal ADA law, an additional state law, and most certainly Riverside policy. I have documentation to support this, and have sought legal counsel. I have also filed a charge with the EEOC on December 23rd, and would like to offer Riverside an opportunity to resolve this prior to that investigation taking place. I had been a successful and loyal RWFC employee for nearly 9 years prior to my reemployment. I was highly qualified for this position, and was very excited about using my skills to drive membership sales. However, the lack of professionalism and courtesy I have experienced over the last two months has been deeply disappointing. Respectfully, XXXXX XXXXX our previous association and your involvement in my complaint, I would prefer to meet with a more neutral party. Larry Boyles, Sally Hartman, or Bob Bryant would be my preference. If this cannot be arranged, I will defer to the EEOC. I will be available to meet with someone as early as Monday, January 4th.

Expert:  Marsha411JD replied 4 years ago.
Hello again,

The email is very well written and it states your general stand without giving her the facts that you will use to support your investigation. You also have done a good job of explaining your position that you would rather meet with someone other than her. It is good that you will defer your meeting until after you meet with the attorney. That way, if you decide to cancel the appointment based on advice of counsel you can.

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