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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 90957
Experience:  20+ Years of Employment Law Experience
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I had an exasperation of existing mental health conditions,

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I had an exasperation of existing mental health conditions, which I had self managed during my 17 years of employment. I went on STD, then LTD. When my FMLA expired my Dr requested an ADA Accommodation for an extended personal medical leave of absence, which was granted. Approx 1 year later, my Dr requested an ADA accommodation for placement into a new position as an ADA accommodation for an attempt to return to work. I was asked for new paperwork to be returned regarding the new request by 11/29. I returned the paperwork 11/27. Approx 1 week later, I received a request to sign an authorization form so that my employer's Dr could speak to my Dr to clarify the request. I was given a time limit to return the form, which I met. I gave my Dr authorization to discuss the accommodation and not an open book to my medical history. I had weekly appointments with this Dr and I asked during these appointments if he had heard from my employers Dr. He had not, I emailed my Leave of Absence Coordinator inquiring about the delay. All the response I got was that he would look into it. I inquired on a regular basis as there were 2 job opportunities that I met the qualifications for and met the ADA accommodations my Dr was requesting. Finally, after nearly a month, their Dr called mine. Then I was told that my Dr told theirs I could return to my previous position within a matter of weeks. I made a crisis call to my Dr who assured me that was not what he said and that the entire conversation was based on placement into a new position. I contact my employer right away to let them know that this was incorrect. My Dr offered to call the Leave of Absence coordinator to clear it up, and offered to call their Dr again. I was told no, the Leave Coordinator did not speak to health care providers. They never responded to my Dr calling their Dr back. I offered my own explanation as to where the information was misconstrued. That led to "an investigation" by HR into the conduct of fellow employees and management of my previous department. I did not get any answers, despite my repeated attempts, regarding the accommodations,and my reminders that I might miss these open positions if they did not approve my Dr's request. Long Story short, my paperwork was turned in to my LARGE corporate employer on 11/27/12 and the request finally approved on 2/12/13. Their Dr never did call my Dr again, and they made my Dr refill out his paperwork a second time. I missed out on both job opportunities during this delay. There were no other job openings that occurred by the time of my termination 6/25/13. Our company has a "Legal Solutions" group, which is a 3 step process. You file a complaint where a Corporate Attorney reviews it for legal issues. If they feel you may have one, they ask what your demands are, and act as a go between with you and your local office/division. I filed a grievance, and explained my conditions were self managed until my manager and supervisor and unethical practices I was made to do, made my conditions so bad I was pulled out of work. Fast forward to the ADA accommodation of 11/27 and a nearly 2.5 month delay on the part of the employer and loss of 2 jobs due to the delay, and then subsequent termination 6/13. Before termination I asked for a severance package in lieu of what happened and was refused. I filed my complaint highlighting the unreasonable and unnecessary delay in the ADA accommodation approval which was an ADA violation. I also informed them of all the unethical actions that led up to my need to be pulled from work. I was asked my demands. I was unsure what to ask, but ended up requesting my losses to date, and the severance package I originally asked for. 1 week pay for each of the 19years of employment, which is a standard severance at my company.... the 2000K (it was actually more) of medical and prescription co-pays, and the 40% loss of pay for 1 year on LTD. Plus my courtesy services I received as an employee. (I would have received this benefit if I retired 4 years later anyway and doesn't actually cost them anything) I have not yet received a response to my demands although I know the lawyer is discussing it with the local office. If we do not agree, it moves onto a mediator I believe, and then an arbitrator who's decision is final. My questions: Is what I am asking for reasonable? Is it too much, or too little. If they come back with a counter offer of part of my demands, should I take it, or move on. How likely am I to be awarded something similar or better if I move on to the mediation process? I'm not looking to get rich over this, but I do feel cheated out of my 19 year investment into the company, the wages I built up (which I won't get again) all my benefits, etc as well as the loss of 2 other positions because of negligent delays on the part of the company in my ADA request approval.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Actually, what you are asking for is more than reasonable, your actual losses and the normal severance offered to anyone else. Of course, if they do not agree, then what is reasonable goes up more and you would then be reasonable in seeking 2-3 times what you are asking for now, plus potentially attorney's fees if you can show your employer willfully and maliciously violated your rights under the Americans with Disabilities Act.



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Customer: replied 1 year ago.

The "normal severance" is typically only offered when a position is eliminated. Of course, this is not the case and would be out of the norm for an employee that had been out on medical leave. If they agreed to my demands, the monetary award would total close to 40K and then the free courtesy services.


 


I have no way to know if the delay was, in legal terns, "willful or malicious". I only know they did not respond or react to the situation in what I feel is reasonable given that all it took was a phone call initially, and another call to clarify the confusion. It could have gotten "lost in the shuffle" but wouldn't that still be a violation if they meant to do it or not?


 


The total time to approve being nearly 2.5 months and I lost 2 positions that would have furthered my career with the company? I explained my plans to retire there (another 10-13 yrs) and all the future loss of income. My current medical state (on LTD) I also blame on them. I am not asking for reinstatement because the anxiety and stress over this and the previous 18 months prior, I honestly don't know if I can work for them again. So, if they come back with less than what I asked for, you believe I should go on to mediation and up the ante? I am currently still on disability and would be hard pressed to afford a lawyer, unless they would do it on contingency basis. I have all the email back up showing the ADA fiasco from start to finish, Would an employment lawyer likely consider that for this potential ADA violation? Or will the attorney fees, If I am stuck with them, eat up any additional award likely to be offered at mediation? Thanks for the additional information,

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

They should respond to a request within 30 days if you have submitted all of the proper documentation. The failure to respond in a timely manner can be seen willful and malicious.

You asked if your offer to settle was reasonable, yes it was reasonable. If you have to go to court, because there are litigation costs and more time, your award should be 2-3 times higher plus attorney's fees because they put you through more distress in dragging this out. If you go to mediation you should be about 1.5 times higher than you are now and you start about 2.5 times higher and work your way down.

Since you have all of the proof you should prevail if you have to go to court.

If you go to trial, your attorney's fees would likely be awarded based on the evidence you stat you have.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 90957
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and 2 other Employment Law Specialists are ready to help you

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