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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 12115
Experience:  Licensed Texas General Practice Attorney
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I. I apparently sent an email at work after I hurt my leg at

Resolved Question:

I. I apparently sent an email at work after I hurt my leg at home back at the end of may beginning of June. I have been off work sine June 4 - June 26 I got a conference call from supervisirs and that I was being written up for this email which I haven't seen . They waited until after I started drugs for the pain and the day before surgery to write me
up. I consider it unacceptable and unprofessional and wonder if a crease and dissist letter should be sent by a lawyer to my supervisors so when I returned to work they understand I cannot accept this kind of behavior from my supervisors
Submitted: 1 year ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I am sorry to hear about your situation. Can you tell me whether you're part of a union, or if there's any written employment policy in place that they violated in doing what they did?

Customer:

no union apparently no safety net for any one they can do as they choose what options do i have to protct myself from further harrassment now and when i return would seeing a mental heap professional for any trauma from their actions do anything to stop them

ScottyMacEsq :

I'll address the mental health professional first: Merely seeing a mental health professional does not "protect" you, nor does the fact that you have a mental illness, etc... It's possible that you could have a claim based upon any infliction of emotional distress, but only if you can prove that there was an action taken by them that reasonably caused it (that is, it would cause it in most people) AND that it was extreme and outrageous. Frankly that's a bit difficult to show, in that "extreme" means so beyond the bounds decency that we absolutely cannot allow it in an ordered society.

ScottyMacEsq :

That specific cause of action is called "intentional infliction of emotional distress" and we lawyers hate to use it, primarily because it's so incredibly difficult to win a case with it.

ScottyMacEsq :

Now as for their actions towards you...

ScottyMacEsq :

First of all, you need to understand that Wisconsin is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

ScottyMacEsq :

Now that being said, there are exceptions in Federal law to this...

ScottyMacEsq :

One is the Americans with Disabilities Act (ADA), in which your employer is required to make "reasonable accommodations" for a disability. Another one is the Family Medical Leave Act (FMLA) where your employer cannot retaliate against you taking medical leave. FMLA applies if there is at least 50 employees within a 75 mile radius of your place of employment, and you've worked there for at least 1 year, and at least 1250 hours in the past year.

ScottyMacEsq :

Now your employer could always say that their actions were "non discriminatory" and taken in response to something else...

ScottyMacEsq :

Courts will analyze the proximity between the medical leave and the disciplinary action to see if the real reason was you taking the leave in that instance.

ScottyMacEsq :

Now the threat, either express or implied, of filing a complaint with the EEOC (Equal Employment Opportunity Commission) could get them to change their ways, or at least put them on notice that you're not going to take this lying down.

ScottyMacEsq :

Further, filing a complaint is a protected activity, in that they can't retaliate against you for filing a complaint.

ScottyMacEsq :

(even if your complaint is ruled to be baseless)

ScottyMacEsq :

So that's certainly something to consider. As to whether you should hire an attorney or not, that's really up to you. You can file a complaint without an attorney, although an attorney writing a letter does give it a bit more "weight".

ScottyMacEsq :

You can contact your closest EEOC field office and inquire about filing a complaint for either ADA and/or FMLA discrimination: http://www.eeoc.gov/field/

ScottyMacEsq :

Again, you can let your employer know about this, even passively saying that you "believe this may violate ADA and/or FMLA."

Customer:

i have documentation of th supervisos actions toward me that icludes whisphering my ear "im above you " in a threating manner plus banging fists on desks and angry loud words

ScottyMacEsq :

That's potentially actionable, and ultimately whether or not it would be "extreme and outrageous" would be up to a jury to decide. It's hard to say for certain, because that is a "fact question" that goes to the jury.

ScottyMacEsq :

But there's no "anti retaliation" protection for filing a lawsuit based on intentional infliction of emotional distress.

ScottyMacEsq :

Only for ADA and FMLA complaints, so personally if I were you I would go that route.

Customer:

then eeoc.gov/field/ is the wedsite or a letterhead lawyer letter is my choice

ScottyMacEsq :

Pretty much. An attorney could threaten a lawsuit, but even that process would go through the EEOC. The EEOC has to "sign off" on a lawsuit based on ADA or FMLA.

Customer:

i think my real questio is can i protest the wriiten corective action during my leave and not done when i return to work be protested as unprofessional and unacceptable nothing is wrong with my medical leave its the point of waitinf until i was down when that conferene call was made about an email written over a month ago

ScottyMacEsq :

Only if the reason for the discipline is based on retaliation or discrimination due to ADA / FMLA rights would you be able to contest it, or if there was a written employment policy that was violated.

ScottyMacEsq :

Otherwise, the employer would have the discretion (even if they were wrong) to discipline you in this manner.

ScottyMacEsq :

(that's the nature of the at will relationship)

Customer:

i want someone to know their actions are unacceptable

ScottyMacEsq :

And I completely understand.

ScottyMacEsq :

An EEOC complaint could accomplish that.

ScottyMacEsq :

But again, what is illegal and what is immoral / unethical / etc... can be different things.

ScottyMacEsq :

They could discipline you on immoral or unethical grounds, but be entirely within the law.

ScottyMacEsq :

Only if the reason for their actions was to retaliate against you for the leave, or to discriminate based upon a disability under the ADA would that be legally actionable.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!m

Customer:

no chance of anything i can do then

ScottyMacEsq :

Again, you can claim that this was FMLA discrimination and retaliation, as well as ADA discrimination.

ScottyMacEsq :

But if it's not one of those things, then the at will relationship will control.

ScottyMacEsq :

Again, At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

Customer:

thanks

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 12115
Experience: Licensed Texas General Practice Attorney
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ScottyMacEsq
ScottyMacEsq
Employment Lawyer
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Licensed Texas General Practice Attorney