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I am currently in 'court' with Utah Labor Comm in a result of being fired from two companies consequtively. I understand your first answer about the Accuser, but the UALD since Dismissed the complaint. While I have a Adjudication Ruling from the ULC clearing me of the claim of the 'victim', they still posted the case on their internet site, something that is new, but did not include the language that says I was not involved with the incident. So, can the company and the State be prolonging or resurfacing the Discrimination by publication after is was truly found to be baseless. Maening, the case can be picked up by Westlaw and published for all time. Without the full details present. I have written to the EEOC in Delaware stating this is a breach of the privacy act paperwork I signed with the Utah Labor Commission and that I was not involved. Can this be considered continued Male Gender Discrimination or does this fall under Slander/Liable?

I am going in front of an adjudicator for the second employer. So I have to give you hopefully a brief explaination. I am disabled and that is clearly marked on the applications. the firm is a temp firm, and they had an on site manager. The majority of the 'conversations' or the denial of time off under ADA and the Dismissal was done by Instant Messaging. Without the IM text date or time stamped, is it evidence or hearsay? And if the Onsite Manager IMs their client companies Office Manager and uses it as surprise, since I would not be a part of the IM discussion, would that be hearsay? Where do electronic records fit? I have been denied time off and can get the appointments from the Clinic and wages showing no drop in pay. But how legal can IMs be?

I think this counts as 3 questions. Thank you for your time.

Submitted: 300 days and 14 hours ago.

Category: Employment Law

Value: $30

Status: CLOSED

salt lake city, Utah

Already Tried:
Adjudication with the labor commission, the EEOC will look into only after the labor commission finishs all legal work. I am looking for past legal decisions involving Instant Messaging and work, and where hearsay may be considered.

Posted by PaulMJD 300 days and 12 hours ago.

Answer

1. If they have not published the full information, it could indeed be a ground for you to sue them, since their not posting the entire decision could be considered at the very least under the common law tort of false light, since it portrays you in a false light to the community by a mass publication.

2. They can dismiss you by IM, if that is your question. And that should really be the least of your concerns. Now, you could try to argue you were never actually dismissed from the job, but I don't think this gets you far. As far as hearsay, well, in the administrative hearings hearsay can be admitted, it is just in court that hearsay would not be admissible, which means the chat logs would need to be verified from the computer or the party that sent the message would have to testify to the message.

3. The denial of time off is not really under the ADA, since they only have to make reasonable accommodations for you to perform your job, they do not have to let you go and come from work for doctors appointments. In fact, even under the Family and Medical Leave Act, intermittent leave does not have to be approved. Attendence at work is a bona fide job requirement.

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300 days and 11 hours ago.

Reply

I understand your answer that they can dismiss me by IM, but thats not what they have done. I am asking if they can take 'clips' from the IM logs that are not substaintiated by the computer (and they have made no move to do so) and fail to Discover.

The person basically started an arguement with me. they are using that by stretching that further to imply I walked off the job, something the Dept of Workforce Services did not buy and awarded me UI. What I need is a precident that agrees with this. If there is no shift trade book for time off, that they destroyed it, whats the implications of that? Does that mean they lose foundation for their case?

as for you top paragraph, I can sue the state? So far, that seems unlikely. I would need a precident for that as well.

thanks

300 days and 11 hours ago.

Reply

I want to add something to 2).
The Adjudication Judge says that I made a prima facie case for my disabilities. That the employer was indifferent. But he refuses to read the voloume of medical reports. The doctors report says I must have time off (work restrictions and work releases), and the State says I must be examined because I take a controlled substance. I thought that this was covered under ADA, and with talking to EEOC, they agree it appears.

I never gotten any time off, managed to adjust doctor treatments for PT and submitted many EEOC decisions to this judge where people won due to being fired without reasonable accomodation. It keeps sounding like the chicken and the egg to me. I had to work, could not change shifts, and they destroyed the time off book. So whats their defense here?

Posted by PaulMJD 300 days and 10 hours ago.

Answer

Oh actually, you mean 3).

If you made your prima facie case, then it is up to the employer to dispute it. If the employer does not come up with a legitimate business reason for your dismissal, then you win. It is type of a vicious circle.

I believe that since the employer did not offer you ANY reasonable accommodation as a counter to your accommodation, you could have a claim. There is no doubt you have a qualified disability and generally the ADA does not cover absences unless the employer does not offer any counter accommodation.

300 days and 10 hours ago.

Reply

not to keep arguing but I meant 2). i wish I could send you the one page text of the IM log. But no where on it does it say I quit. I asked if they had a different assignment, but just asking. But again, without the trade shift book, that the lawyers admit the company desposed of, you seem to indicate that the trade shift book distruction has no bearing on the case that I should fight it on a disability grounds. I am inclined to agree with you that the Judge isnt worried about it. But I have asked you. you said it yourself they need a legitmate reason. if there is no book, do they lack foundation???

the judge has barred summary judgment from both sides on this score. He claims he needs to see more medical records. I gave it to him on CD rom 78 megs of docs. He said the CD would be destroyed. i have an evidentiary hearing in April. how can I go in with no discovery, a partial IM log, then they might come out with the full IM log (no where on it says I quit btw). Right now I am yelling surprise.

Accepted Answer

Okay, I got confused. The IM's are not really good evidence without evidence of the whole conversation and proof that the conversation was not edited. Since they disposed of the books, you also have a good claim since they cannot prove anything. You can also argue "spoiliation" meaning they destroyed the evidence and thus it can be construed against them. But the IM's without the proof ot fhe authenticity is what is really not helpful to them.

If they have no legitimate business reason for not granting the accommodation, they really have some serious holes in their case. You need to argue for discovery and you need to send a letter to the administrative judge asking for discovery and tell him what you want. As far as the medical records, you are going to have to document your disability and you will need to actually introduce the medical records into the evidence record during the hearing. You should begin reading some evidence books on how to do that as well.

I really think you sound like you have a strong case here, but you may really want to consider getting an attorney at this point to represent you to make sure that you do not make any mistakes that could be fatal to your case.

Also you may want to read McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which will explain to you how the whole process works from you making your prima facie case to the employer then putting forth their evidence and then you overcoming their evidence and proving it was a mere pretext for discrimination.

Accepts:
Expert:	PaulMJD
Pos. Feedback:	99.5 %
Answered:	1/27/2009

Attorney

20+ Years of Employment Law Experience

300 days and 9 hours ago.

Reply

Thanks this time for getting to the heart of the matter, and giving me a direction. I think the system is crooked here and with the economy as it is, its only going to get worse. I will try to find a lawyer who might want to represent me, now that I have an income with Disability, as I had no money coming in but UI. Its a distressing situation.

FYI, I have asked several times for Compel Discovery and am shouting surprise. I am asking at this point for Motion of Review. The EEOC claims they may look into it after the UALD is done with it. I dont quite see how McDonnell exactly fits, as it was a walk out, etc, but they barred him from employment. I had no unfitness reports from the client company. I did document my case myself after hiring an attorney and did a 'dire need' hearing. So my medical records are in order. They did offer to settle, but only for a half years pay $10K. I was unable to find like work before the economy crashed. I will look at what the UALD has done to me as well. thanks again.

Posted by PaulMJD 300 days and 9 hours ago.

Answer

How McDonnell works is that this is the standard used by EVERY court in the US and it is referred to as the McDonnell Douglas Factors for proving ALL discrimination cases. So it walks you through the process and the steps, from prima facie case, to the employer's shot to prove a legitimate cause for firing and then to the employee's second shot to prove the employer's legitimate reason was merely a pretext for discrimination.

Also, you need to start looking at the arguments for "spoliation of evidence" so you can argue this about their tossing the log book.

Usually, as far as lawyers representing you, if you can present all of your evidence to them clearly if they see a case here, which they should, most handle these on a contingency fee basis. Got to http://www.martindale.com and call around to a few attorneys and see what happens, especially if you have done most of the heavy work to get it to this point a contingency fee basis should be agreeable.

300 days and 6 hours ago.

Reply

I have been to several attorneys already, a list I got from the EEOC, some dont want to fight a big company, some say they are no longer in the business, which I do not believe. I will try to find an attorney, but I been to all the free 'legal' clinics and they say they dont handle 'this' kind of work. I think word got around. That the harrassment got around and I am tainted.

If you can point me to a good site or a place I can google, about spoillage of evidence, I can probably figure it out. I ran a business for 13 years. I hired an attorney to write a pretty good lease and contract for the systems I sold, and I had to understand it when someone tried to scam me. I dont give up easily either. I will reread McDonnell before the hearing.

This leaves one question that kind of sticks in my crawl. The Judge has dismissed one of the cases before it got to discovery and he blocking my discovery for the 2nd call center company. Yet he wont do a Summary Judgment for either side, saying there are some conflicting facts. He says he needs the medical evidence and when I send it, he wont look at it. I think hes stalling so that maybe one of the companies will pay him or the UALD a 'fee' and we will rule against me. I cant see any reason he is so facist in all areas, but hangs us all up from a conclusion. Is he a chicken? a crook? Or is there something really stopping him that could burn him? that I like to know.

thanks Mike

Accepted Answer

http://cyber.law.harvard.edu/digitaldiscovery/library/spoliation/spoliationanalysis.html

http://www.evestigate.com/spoilation%20case%20law.htm

http://www.uslaw.org/files/public/Spoliation_Compendium.pdf

As far as summary judgment, it is inappropriate when there are facts still in dispute, it does not mean any more than that. As far as the medical evidence, it needs to be properly introduced, meaning you will need to subpoena your doctor to be there to testify that the records are authentic and accurate and then they can be admitted as evidence, and you should go to the local library to read up on the introduction of evidence and what needs to be done to properly introduce the evidence.

Accepts:
Expert:	PaulMJD
Pos. Feedback:	99.5 %
Answered:	1/27/2009

Attorney

20+ Years of Employment Law Experience

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salt lake city, Utah

Already Tried:
Adjudication with the labor commission, the EEOC will look into only after the labor commission finishs all legal work. I am looking for past legal decisions involving Instant Messaging and work, and where hearsay may be considered.