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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3920
Experience:  Contracts, Wrongful termination and discrimination
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I am a commercial appeals pharmacist with CVS Caremark. Approx

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I am a commercial appeals pharmacist with CVS Caremark. Approx 2 wks ago I complained because another (younger) pharmacist was given special time off when I has been denied schedule flexibility for a MD appt. Spoke with my mgr, etc...she talked around issue. The end. I worked the Sat of Memorial Day wkend and the Tues after, they stated I did not do all my work and 3 impt Medicare issues were not handled on time. I do not work for the Medicare Dept. Doing this work was not on my list of job functions for Sat (this was my 1st Sat worked) and the usual Sat RPh has stated to me that she never did them. My sup was on pto last wk but the other sup took me in office Wed afternoon and told me if my sup did not back me up, that I would be written up tomorrow. I said I would not accept write up for something that was not my job. I return to work tomorrow and will not accept write up. Should I let them fire me, or should I quit? Also, I have job assignments all printed out that show this function was added after Memorial wkend. I feel I am being retaliated against & age discriminated (I am 58). Being taken into office & intimidated was very threatening & I had to leave 1hr early as I was upset. I need legal advice how to handle tomorrow. Thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question and I'm sorry to hear about your situation.

Do you have a written employment contract with your employer?

Also, you state that the function they said you did not perform was not on your list of job duties. Is this a written list? Is there another class of employee which is supposed to handle the function they say that you did not perform?

Finally, have you spoken to your regular supervisor about the issue?

Have you spoken to anyone who is superior to the charging supervisor, or have you spoken to anyone in HR about the issue?

I look forward to hearing back from you.

-ZDN
Customer: replied 1 year ago.


I do not have a written contract with company. I believe technicians from another dept do it during week. The list I refer to is emailed every week and I have the printout for my weekend and then the printout of the added job functions, which were edited in on Tues or Wed, after the wkend I worked.


My regular sup returns from pto today and I return to work tomorrow. I did not speak to the mgr as she is in different state, but I know she was in contact with the sup handling this situation. I have not spoken to HR as I don't have much faith in them, but I could.

Expert:  Zachary replied 1 year ago.
Thanks.

Let's talk a little bit more about the MD appointment you requested time off for. Do you have a serious medical condition that needed to be treated? (I'm looking for a possible trigger to the Americans with Disabilities Act or the Family Medical Leave Act).

You also state you feel like you are being retaliated against. However, it seems like the supervisor who threatened to write you up is not your regular supervisor. Why would the retaliation come to you this way?
Customer: replied 1 year ago.


The manager is endorsing the supervisors activity (as she is in different state) and she is the one I complained to. I just have normal medical conditions (high blood pressure, arthritis, etc) and I wanted to start 1hr early and leave 1hr early. I was told our dept hrs start at 7am and I couldn't do that. However, the younger lead rph was able to start at 6am and get 3hr pto when our pto calendar had none available. She sent them a cute story about her daughter being the narrator for a play at school and her foster daughter attending. They granted her a "one time exception".

Expert:  Zachary replied 1 year ago.
Thank you for your response.

In Arizona, as through the rest of the U.S., employment law is heavily in favor towards the employer in almost all situations. The employee who does not have a written contract is called an At-Will employee. The employer is free to treat the At-Will employee in whatever manner it pleases, and to termiinate the At-Will employee for any reason (or no reason), as long as these actions do not violate the anti-discrimination laws. The employer is prohibited from taking any sort of action which discriminates based on age, race, gender, religion, national origin, and/or disability. When the employer's actions are motivated by one of these prohibited reasons, the employee may bring a claim against the employer.

Further, the employee is not guaranteed any paid time off or paid sick leave, nor is an employer required to adjust work hours to accommodate an employee unless that employee is seeking to treat a serious medical condition or has a condition which requires accommodation under the Americans with Disabilities Act.

You could potentially argue that the conditions for which you were seeking treatment trigger protections under the FMLA. The FMLA guarantees up to 12 weeks per year of unpaid time off from work to treat serious medical conditions. Arthritis and high blood pressure might under certain circumstances be considered serious enough to trigger your FMLA protections.

Further, the fact that an adverse employment action is being taken against you when the younger workers are given the same sort of consideration you were denied may trigger a claim under the Age Discrimination in Employment Act.

The question you have lodged, however, is should you quit or let them terminate you. First of all, given the fact that you are an At-Will employee, they can terminate you for any reason, even an unfair one. You will have to prove through a claim that the reason was actually retaliatory. This is never a sure-fire win. Your case is potentially precarious because there is not direct evidence regarding the retaliation. It is only circumstantial given the proximity of your request and now the false job duty failure charge against you, and the age of the other employee vs. your age. Thus, it is in your best interests to avoid termination here, since there is not a clear probability of victory for you should you file a discrimination claim.

This may mean going along with the "write up" but stating that you will not sign it because you do not agree with the findings, based on the fact that it is not in your job description, nor in your job duties, to perform the task they said you failed to perform.

I think you feel that the age discrimination is the stronger claim that you have. Whether or not they terminate you for refusing to sign the "write up" you could file an EEOC claim based on age discrimination. If they do not terminate you, then the filing of this claim would protect you through the anti-retaliation laws from being terminated during the investigation of the claim.

To file a claim with the EEOC, you must contact the local office and make an appointment to come in and fill out the claim paperwork. The EEOC office nearest you may be located at www.eeoc.gov/field/.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3920
Experience: Contracts, Wrongful termination and discrimination
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