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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15660
Experience:  Employment/Labor Law Litigation
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constructive discharge or forcing an employee to resign by

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constructive discharge or forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay.

I feel like this is what's happening on my job. I have been on my job for 9 years and 1 month. I am approaching 10 years at which time I will be able to retire. In the last 3 months my work environment has become intolerable. An agency nurse was brought in and has from the beginning has made me feel like she is trying to get rid of me on my job. As of 8/26/13 I found out she has been hired permanently. I have not been written up once and reprimanded at least 4 times since she's been there. I have not had a raise on my job since 2008. We were recently approved a 4% raise to take effect in September. I received an email stating that I would not be getting the raise due to the written disciplinary I received in June. I am the only original employee left at my job. It seems that everything that happens there is blamed on me or that I am the reason for it. I am very uncomfortable at work now. I am constantly being watched and monitored. I don't feel that I can function at my best, XXXXX XXXXX always trying to make sure that I dot every I and cross every T. There are other technicians there that make mistakes and nothing is said or done, but if I make the same mistake, I am reprimanded or called in to the supervisor.

My question is what can I do to protect myself and my job?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

Do you have an employment contract stating that you can only be terminated for cause?

Do you feel that you are being targeted here based on your race, religion, gender, age, disability or FMLA use?
Customer: replied 1 year ago.

I am not sure if I can only be terminated for cause.


 


 


I do feel like I am being targeted to some extent based on race (I am the only black person in my unit) and maybe past FMLA use. I am also the oldest person in my unit. I work for UTMB in dialysis at the XXXXX XXXXX Medical Facility which is a prison.

Expert:  Allen M., Esq. replied 1 year ago.
Ok. Well, you're hinting at about three different possible forms of discrimination, but you'll need to be more more certain of your allegations if you are going to make any sort of claim here.

Constructive discharge is not really a concept of law used to save your job. It is only useful in two situations.

1. If you have a contract of employment stating that you can only be terminated for cause You can then state that they employer breached your contract by terminating you, even if you quit....because they essentially caused your termination through the treatment. That's only viable though, if you have a contract of employment like the one I mentioned (few people do, so you probably don't).

2. If you quit, you can claim that you were forced to quit through the treatment, so that you can get unemployment.

So, without a contract, the concept of constructive discharge doesn't really help with your job. It can just help get unemployment if you are eventually forced to quit. That being said, the treatment that you are talking about here would only rise to the level of constructive discharge for unemployment purposes if it was based on race, FMLA use or your age. That would make the treatment less tolerable....because if they were treating everyone the same, the behavior wouldn't actually be illegal.

So, you need to approach HR and allege one or all three of those as the reason you feel you are being singled out. Force the employer on the defensive by having to answer for the differing treatment.

If the HR doesn't help, contact the EEOC in your state (or the Department of Labor if you feel FMLA is the basis for your treatment).
Customer: replied 1 year ago.

So, before I go, what you're saying is that ultimately I need to contact HR and file a claim with them? The only problem I have with that is that my HR rep and my supervisor are very good friends and I don't think that I will be treated fairly.

Expert:  Allen M., Esq. replied 1 year ago.
I understand your concerns about HR.

There is a reason to file the complaint with them though, that has nothing to do with them actually trying to resolve your problem. In fact, most HR departments don't resolve people's problems. They are just in place to protect the employer.

The reason you file the HR complaint is to take away a defense from the employer. If you don't file with HR, the employer can say that they were never given a chance to cure the situation when you file the EEOC complaint. You don't want them to have that defense.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15660
Experience: Employment/Labor Law Litigation
Allen M., Esq. and 14 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Okay, thank you for your help. I will take your advice and pray for the bestSmile

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