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I first contacted you back on July 11 about problems with my

Hi. My name is***** first...
Hi. My name is***** first contacted you back on July 11 about problems with my manager at work. (I'll attach that too). I managed to get back on my night shift, but was forced to stay on day shift for more than two months after my return from Medical
leave. While the contract person, (Andrew) finished out his 13 week contract on my shift, rather than day shift like he was originally hired to do, I found out later. Since then things have gotten even worse. I've been subjected to even more retaliation, harassment,
ridiculous disciplinary action, and a very toxic environment. Last week I learned that they've now hired Andrew, then two days ago I was informed that I will be going to the day shift. I was given NO reason and NO length of time when I asked why 2Xs. Today
they posted the schedule and sure enough, I'm on day shift starting 1-11! But even worse, Andrew will be working my shift!!! I've done nothing wrong at all, otherwise I'm sure I'd been canned long ago. All the night shift throughout the hospital prefer me
over anyone in this dept. And I've never, in 17yrs here had a problem with my performance or another employee other than my new manager. I believe he has personal issues with me, and had scheduled a meeting with his manager, but it took weeks to meet with
her. (Last thurs) We do have another meeting all together on Tues, but I doubt it'll go well. (They're good friends). After which I need to take this to the CEO. In the mean time, I don't feel like I can continue to work in this environment any longer, even
though I'd hoped/planned to retire from here some day. That said,and I'll be honest. Do I have any rights that have been violated? Any FMLA laws broken since I've been back? Anything that I can sue them over? I'm sure they can get away with this, and I have
a slim to none chance. But I hate what I've been put thru! I noticed this beginning as long as 2yrs ago looking back, getting worse and worse. And I now I'll have leave my dream job. Even if I manage to keep my shift at night, this will continue until I make
even the tiniest mistake. Then I'll be gone anyway. They are robing me of a future I worked very hard for here, I feel like I can only just walk away. Here is what I sent back in July. I hoped things would go in a better direction, so I never did anything
back then, I just waited it out....... Hi. My name is***** I broke my arm, pretty bad and needed the full 12 weeks of FMLA leave for recovery. The last month of it, my manager started giving me a hard time. Things like what he's going to do to my schedule
when I return, and sure enough he did. I'm not back to my shift at night, he won't give an answer as to when, just "We'll see." My schedule is obvious retaliation (in my 17yrs here, I've never seen a worse one for anyone) and as of that schedule is, my return
to my night shift will be 6 weeks or more. He says it's to, "Acclimate" back after being off just 3 months. (I've been in this profession for 25yrs, 17yrs of that are here and have had the same schedule the entire time). Also, I was due to return on 7-2, he
didn't put me on until 7-8. I needed to catch up on some things I missed, and I offered to come back on non prod hrs prior to 7-8 but was denied. That pay period I was to be short by 44hrs which he tried to use holiday pay and PTO to make up for it. I complained
to HR and finally was approved for an FMLA extension for that. But since I've been back, I've been hassled, gotten the run around, bullied, written up with a disciplinary action, etc etc. this, plus a few other frustrating problems, lead us to HR where I feel
I still wasn't heard regarding my concerns. HR heard his excuses for me to acclimate first. And after that meeting, my manager presented me with a written disciplinary action for my "poor attitude" (frustration). I chose to not sign it and will ask to attach
a statement, but where I would've signed now says, "Brad has refused to sign." Not knowing the history behind that, some one would think the worst. And this goes in my file. Before I make this any longer, I'd like to ask, what I can do next. I don't feel so
far that admin can see what is going on, and the higher I take it, the uglier it will be for me eventually in the future, even if they chose to return me to my night shift in less than 6 weeks. I am loosing money, my days home are shortened, patients, sanity,
trust, and any sense of security. Can you advise me of a next step? Thank you.
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Answered in 1 hour by:
12/5/2015
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,427
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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Hello,

Thank you for the information and your questions. There is no way for me to know what the employer's motivations are in this case since I don't have all of the facts, including those from their perspective. But, certainly, if you believe that none of these actions would have occurred but for your use of FMLA, then there is a legal issue here and you have recourse under the Act. Your options are to file a complaint with the Wage and Hour Division of the U.S. DOL, which is the agency that enforces the Act, or to hire an attorney to file suit under the Act.

If though there is no evidence that these actions are motivated by your use of FMLA, there would be no legal recourse unless your employer is violating a written contract or policy that guarantees you a certain shift. Likewise, for the behavior that you say is harassing and retaliatory, it must be tied to your FMLA use, or otherwise carried out because you are in a protected class under employment discrimination laws in order for it to be unlawful.

Please feel free to ask for clarification if needed. In none is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

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Customer reply replied 1 year ago
Is there anything regarding a hostile work place that a lawyer can do for me? It has been worse and worse every month.

Hello again and thank you for your reply. "Hostile Work environment" harassment is legal term of art created by the courts when discussed a particular subtype of unlawful discrimination. Under the law, there is no HWE unless there is "severe and persistent" harassment motivated by bias because of the person's gender, race, national origin, age (over 40), disability, pregnancy or military service. So, unless the harassing behavior you speak of is based on discrimination against you because you are in one of those protected classes, there would be no cause of action. If you do believe that it is, then you can file a complaint with the EEOC and speak to a local employment law attorney.

Of course, as I mentioned in my initial answer if this behavior is retaliation for using FMLA, then it is actionable as part and parcel of your FMLA claim.

Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,427
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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Customer reply replied 1 year ago
There is so much more going on here, including age discrimination. I'm 46, my manager is early-mid 30's, he hires 20-30s age range, and he's giving my job to a 20 something y/o.
I know most likely I'll end up just being pushed out of my job here eventually, and I won't be able to do a thing about it. But at least it's something to look into.
Thank you.

Well, if you do believe that your employer is targeting you because of your age, then you should immediately file a complaint of age discrimination with your HR or EO Department. Under discrimination laws, the employer must be given an opportunity to investigate and resolve the issue before your claim is ripe to file with the EEOC and potentially file suit. Your employer, of course, cannot lawfully take an adverse action against you for filing the complaint.

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