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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19007
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I am currently in appeals for UI for having been fired (mainly)

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I am currently in appeals for UI for having been fired (mainly) for being rude insolent or offensive. My former employer was aware that I have been experiencing frozen shoulder and shoulder impingement which caused chronic pain and lack of sleep. I informed my employer in April that surgery was needed to remove a spur; that this surgery would correct my condition. My employer told me the earliest I could take time off was in mid July - 2 1/2 more months of pain, lack of sleep; the doctor would not give me a pain killer (narcotic) to deal with the pain, so I had to suffer through it until the surgery was done. The company sent out a rep from their workers comp insurance, a ergonomics specialist. He moved stuff around at my teller station and recommended that a platform be ordered. The company (as of the day of termination) still had not delivered this platform.
Each and every time that I lacked sleep, my employer was informed. I resolved to be a trooper and did not incur any absenteeism or tardiness, but I did suffer at work. My manager started to 'hyper-scrutinize' me, and gave me constant verbal warnings - your tone of voice needs to be better; say thank you, etc. My lack of sleep finally caused a chain of events in which I essentially was so fatigued, that my brain was not able to process....
After finally getting surgery, (and not having an income but still paying for cobra insurance), I am finally 'medically able' to work, and am in the appeals process.
How do I go forward with this? I have certified surgeons notes (without explanation regarding chronic pain/sleep deprivation), phone records re: conversation with manager re: surgery, and my performance appraisal. What else can I do? How can I prove chronic pain and lack of empathy from my employer?
I did not ask for FMLA because I was told I only needed a week for surgery.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 2 years ago.

Thank you for the information and your question. I have to be honest with you and tell you that you may have a difficult time with your appeal if you were indeed rude to a customer and the employer has evidence to show that they would have terminated anyone else under the same circumstances. In other words, being ill is not an excuse for something that would be considered misconduct or malfeasance. That said, it is the employer that carries the burden of proof to show that you intentionally, or through gross negligence, failed to follow workplace rules, standards, procedures, or the like, and, as mentioned, that this action on your part would be something they would routinely terminate an employee for.

So, although you should definitely be prepared to talk about your medical difficulties, you might also think about whether you know of any examples where other employees who did something very close, were not terminated. That is all you can do. Then the Hearing Officer makes a determination based on who they believe and whether the employer met their burden of proof.

As an aside, you might consider filing an EEOC complaint for disability discrimination if you believe that your employer targeted you for termination based on your medical issues. You can share that information with the Hearing Officer as well.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 2 years ago.

Let me explain a little more detail. My town is a small one. The vast majority of customers are known by me personally. When I saw the people that I knew, they knew that I what I was experiencing, and understood my weariness. I believe the manager assumed rudeness because I did not specifically 'thank' the customer. The management was aware of my ailment from February on, and was made aware that I was very much trying to do my best given my circumstances.

Is it possible that it might be a discrimination to deny immediate leave to a person that is experiencing pain and needs to have surgery to correct it? I had plenty of vacation time available, so (once again), I did not request FMLA.

Expert:  Marsha411JD replied 2 years ago.
Hello again and thank you for the additional information. Those facts would be relevant, but not the only facts that the hearing officer will consider, but definitely worth mentioning.

As or the discrimination. If you told your employer that you need to have surgery, then technically, if he understood that your doctor said it was necessary then, the employer should have given you the FMLA forms. So, you might have an FMLA issue, not so much a discrimination issue, as without FMLA an employer does not have to provide any leave unless the issue is one that sick leave applies to. Your best action would have been to ask for FMLA and have your surgery. However, an employee does not always have to "ask" for it if their statement is clear about needing to take time off for a medical condition.

So, I think between the FMLA issue and the discrimination issue (if he targeted you because of your condition) it might warrant you sitting down with a local employment law attorney and discussing all of the facts to decide your best options. You could though, if you choose, go ahead and file your EEOC complaint and also file a complaint with the Wage and Hour Division of the U.S. Department of Labor for your employer not giving you FMLA papers when you stated you needed time off for your condition. You can find out more about FMLA and your rights by going to:
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19007
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
Marsha411JD and other Employment Law Specialists are ready to help you
Expert:  Marsha411JD replied 2 years ago.
Hello again,

I wanted to touch base with you and thank you for your business. It was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue in the future, if needed. You can bookmark my page at:

Thank you.

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