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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 111679
Experience:  20+ Years of Employment Law Experience
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Unsure which type of case if any I have with my previous

Customer Question

Hi, unsure which type of case if any I have with my previous employer. I worked for my employer for 5 and a half years. I was a retail manager in great standing, until last year in July when I fell in the stockroom. I was under workers comp and chose to keep my job instead of going into mediation.
I have Fibromyalgia and after my fall was also diagnosed with inflammatory arthritis. I had a fibromyalgia flare back in August and was taken out of work by my Dr for two weeks, I was told I would have to file for LOA after 5 days, but felt a funny pressure to return to my job a week early. I went in on a Monday and on Thursday was visited by my supervisor to be told I was under investigation by HR due to an anonymous phone call telling my employer I was not working my required hours , leaving early and coming in late. I was told that tapes reviewed that this was true and there would be no further discussion , so I never had a chance to state my case that I was battling my pain and or that I am pretty sure my time was made up on days I stayed longer etc did they watch those tapes??? I also was asked about taking two extra days of vacation which were not authorized, but I explained I entered incorrectly in the approval system but the amount of time still would be considered the same, as I am on salary, and no matter what just deduct the 18 hours from my vacation bank..it definitely was not done intentionally... My supervisor told me it was too late for deduction, then did a quick store visit talked about how store was getting back on track and we were given a better score. I was upset and my fibromyalgia was acting up, so I called the Dr who took me out of work again. During this time on approved leave my supervisor said she tried to contact me about the result of the investigation. I finall was reached by email and called my supervisor after my Dr had taken me out of work for another 7 weeks. My supervisor stated that the decision was to terminate me for the two days of according to them unauthorized vacation. I am a manager without any performance issues, no documentation at all of employment issues, a manager of great Integrity and attendance other then since I fell and due to this my disability of Fibromyalgia flares and makes it hard to complete a 9 hour shift at all times. Corrective action for performance is by practice dicumented and allows for correcting undesired behavior over 90 days, leaving a door open over night or leaving money exposed is a final corrective which gives you another chance, but my job was taken due to a salaried manager taking her vacation time earned and due to disability forgot to have it corrected is terminated while out on leave with her disability. I am unsure if I was discriminated due to my disability and the fact I was taking time off to handle with my Dr's or if I was being retaliated against because I hired an attorney to hell me through workers compensation nightmare, I can tell you it was a witch hunt, done behind my back without any recourse to defend myself while I was obviously battling my dis illite of fibromyalgia . Thank you for reviewing this..Michel Milano
Submitted: 2 months ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
The problem is that because you did actually have a payroll issue with your time cards, it is going to be difficult to prove the only reason you were terminated is based on your disability. While you do have a disability, you also never asked for reasonable accommodation for that disability, so disability discrimination may be hard to prove here.
Since all of this harassment began upon you filing for workers compensation, it is possibly a case of retaliation for you taking workers compensation, which may be a better case against the employer than discrimination. I would suggest though you cannot do this without a local attorney and you will need to file a complaint with workers compensation for the retaliation and pursue them in civil court.