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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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Initial PA Unemployment claim denied. I had a telephone

Customer Question

Initial PA Unemployment claim denied for misconduct. I had a telephone appeal hearing with a Referee (AJ) on 10/23/15. *My former employer failed to appear for the appeal* (AJ confirmed on the record that letter was sent; no mail returned from Employer.). I truthfully told the Referee that my employer fired me in retaliation due to my request for updated ADA accommodation. (Original accomodation granted 1/8/15). What is the likelihood of prevailing from the 10/24/15 telephone appeal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. I am a licensed Pennsylvania professional and will do my best to assist you with your concerns.

If I may ask, once you disclosed the information, then the Referee found against you?

Customer: replied 1 year ago.
After the telephone appeal hearing the referee simply told me I would hear via mail within 10-14 days. It seemed like a standard answer. I told the AJ that had my employer engaged in the (re) accommodation process as I requested in May, 2015, that the alleged performance misconduct issues would never have occurred. My ADA accommodation give I. January 2015 was 2 to 3 days off work per month without repercussion due to migraines.
Customer: replied 1 year ago.
My original paper application was denied. Thus I filed for a first appeal hearing via phone as I reside in TX now.
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

But to be clear, you haven't yet obtained your decision as far as the 10/24 phone conversation, correct? If you are the only one on the phone, you have a 99% chance of prevailing. So unless you admit to a violation, or admit to wrongdoing, the referee would likely find for you because the other party is not there to challenge or claim otherwise.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
I have not received a final decision on the 10/23 hearing. I was under oath this I did tell the AJ that in response to the disciplinary action given to my by employer on 5/22 I informed my employer that i was unable to get caught up after 2-3 days off work and that my accommodation was the cause of any minor work violations. Thus I requested reaccomodation on 5/22 and 3 times thereafter but my employer ignored my requests and fired me 9/15/15.I am always truthful under oath or not, but I hope I did not cook my own goose by being truthful. Since my employer failed to show for this appeal, would I receive the benefit of the doubt by the AJ in light of everything above?
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

I honestly cannot tell you as one AJ is different from another. In general with only having one position to review, the AJ tends to accept that position in the best possible light, and in that light if you informed the employer of an impairment, and were otherwise still able to perform the work, then the request is likely reasonable. But there is no guarantee with such cases, although again, because you employer was not there, that tends to be very advantageous to you.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
Additionally, I was placed on Final Warning 6/1/15 effective until 9/1/15. I was given a positive "meets expectations' performance evaluation on 8/8/15 and not told or given anything negative until 9/9/15. FYi management did not keep their promise written here in the warning:
Customer: replied 1 year ago.
Thank you. Hence a waiting game. I appreciate your assistance.
Customer: replied 1 year ago.
In case upload failed.
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

That I do not see as useful one way or another. There is a misconception that an employer cannot terminate once you are on PIP or on review, or that you are entitled to feedback. Unless that is exactly what the PIP states, you are not so entitled. Being on "Final Warning" is a bit like being on probation, and where someone can be terminated without additional notice. Even with that notice you uploaded, there is no language requiring that the employer explain termination grounds to you, or give advance warning beyond the weekly review.

Sincerely,

Dimitry, Esq.

PS. You are most welcome, glad to help!