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Allen M., Esq.
Allen M., Esq., Employment Lawyer
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Experience:  Employment/Labor Law Litigation
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Discrimination Due to Disability In January of 2013 I

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Discrimination Due to Disability
In January of 2013 I sustained a serious injury were I was hit in the back with a gurney that was carrying a patient while working in the MOR (Main Operating Room). The injury required me to have back surgery (Lower Laminectomy) in May of 2013. I returned to work in October of 2013 with a note from my doctor (Damirez Fossett) specifically stating that I was being allowed to return to work only if I would be allowed to work Light Duty. In his explanation to me, Light Duty was a term he used because he did not want to obligate me to any type of routine; he knew it was going to take time for me to get used to working 8 hours and he was trying to prevent committing me to any type of specific regimen. He knew that I would feel different from day to day especially at first and he advised me to pay attention to how I was feeling to prevent reinjuring my back. This meant quarter days, half days or absences if necessary as well as specific restrictions mentioned in his Return to Work instructions. Dr. Fossett allowed me to return to work in October only because I gave my word that I would follow his instructions initially he wanted me to remain off until January 2014. The very first day back at work, I provided my doctors instructions to Yolanda Lacaze the ITD Branch Chief, and was told that the she could not allow me to work partial days, her reasoning for not allowing me the time to acclimate myself to working eight hour days, was that the contract required STS to staff my position for 8 hours per day. Mrs. Lacaze tried to justify her unwavering attitude, by saying that she had been accommodating to this point to my situation. This didn’t seem fair, considering I was injured while on the job, I really felt I made the wrong decision to return to work so soon. On November 4th, 2013, I was given a document that designated me as Emergency / Mission-Essential Personnel, which meant that if there were any type of emergency (natural disaster, terrorist attack, inclement weather, etc...) I would be required to report to work. It didn’t make sense nor did it seem fair (with the 2 other people on the MOR staff) that they select me; it was clearly apparent that they were not taking my doctors’ instructions about Light Duty into consideration.
In November of 2013, I had a hearing with the Workers’ Compensation Commission because (Zurich) the insurance company that represents STS Systems Integration rejected my Workers’ Compensation claim. I received a judgement in my favor and was granted the opportunity to receive Physical Therapy (I had to stop going to physical therapy in August of 2013 and had been denied any other type of rehabilitation treatments).When I began the Physical Therapy sessions, it was really painful for me (as stated earlier I was denied any type of Physical Therapy) because I was struggling just to make it through the work day and now I am going to therapy when I get off of work. This definitely caused me some problems; I usually needed to take the next day off after I worked and went to therapy. I was in so much pain that I needed to stay home, rest and try to get myself together or sometimes I would double the dosage of pain medication and try to make it into the office. This definitely affected my performance but I was tired of the negative comments that were made when I took off. To be working with former clinicians, they really were insensitive to my injury, they would ask if I were still in pain in a sarcastic manner or comment that my recovery is taking too long; like they had some type of standard military time table for my recovery. I spoke with Ms. Lacaze again about my condition; I even showed her how my feet and ankles were swollen from the stress of trying to work a whole day and she spoke again about how accommodating the DOD had been with my injury. I told her that they should continue to accommodate me until I was released from my doctor’s care. I thought that would be fair considering the injury occurred while I was working for them. Mrs. Lacaze and I had an excellent working relationship before my injury but it was never the same after my return. I had to speak up for myself and reject certain tasks that I was physically unable to perform because those assignments were difficult for me and once I began Physical Therapy I was in a lot of pain all of the time. I always had a “can do” attitude before I was injured but it seemed when I rejected assignments or missed work our relationship diminished more and more until we really didn’t speak much at all. I had an appointment with Dr. Fossett December 15th 2013 and he repeated his instructions regarding Light Duty.
In January of 2014 I think Jacques Clervil the MOR Project Manager, who I also believe doubted how serious my injury was affecting me because he sometimes made sarcastic comments regarding my inability to perform my duties. We (the MOR staff) had a meeting during which Mr. Clervil strongly stated that “He’s not going to be back in the Main Operating Room” several times referring to me to the other staff members and he also stated that there would no longer be a Lead position within the MOR staff; we were at that supposed to be equal. Not long after that meeting in January, my role was reduced to answering a telephone line that was set as a Helpdesk number so that users in the MOR can reach our support staff. I could have assisted some clients remotely but Mr. Clervil would not allow it. I really felt discriminated against now, it was like if I can’t do what Mr. Clervil asks then he will not allow me to do anything. I spoke with Ms. Lacaze about what was going on with Mr. Clevil and I pleaded with her to allow me to do more than just answer the phone but she sided with Mr. Clervil. He drafted a SLA document to present to the Administrators in the Main Operating Room in which he referred to me as the switchboard operator. I challenged him on the fact that he didn’t have the authority to change my title (Clinical Informatics Specialist) and he let corrected my title but it was clear that he was attempting to use his position to unfairly punish / humiliate me. I had another appointment with Dr. Fossett on May 1st 2014 and one again informed me that I was to remain on Light Duty and resume Physical Therapy sessions.
My family noticed the change in my behavior and insisted that I see a doctor because I was displaying symptoms of depression and if were true it would be better to correct it before it worsened. I had become down on myself and withdrawn due to pain and my inability to function independently not just at work but also at home. I began treatment for Depression in July of 2014 due to an Insomnia, fear, feeling of worthlessness and the anxiety caused by the realization that I had lost a lot of the independence which was a large part of my personality. My Psychiatrist agreed that it might be good if tried to do something else as long as it didn’t compromise my health. I wanted to get off the phones; I believe that assignment definitely contributed to my Depression. Not only was it a reminder of my inability to perform my regular job like I use too; I couldn’t forget all of the negativity and drama lead up to my working the phones. While I was working the phones Mr. Clervil asked me to join the weekly teleconferences with the vendor (Draeger) and the other DOD sites that had already received the upgrades or like us, were scheduled to be upgraded soon. I had a great history of working with the Draeger’s managerial and technical staff, we have always had a productive professional relationship. In mid-July I gave the ITD leadership a note from my doctor showing that I was on Light Duty but not limited to sitting at a desk all day; in fact, it was not good for me to sit all day.
The Innovian Anesthesia system was scheduled for a software and hardware upgrade and I asked if I could help with the upgrade project. The vendor (Draeger) were doing all of the hardware and software installation so I didn’t feel that there were any risks to my health that should concern me. I was there as a Point of Contact to provide information and directions and it gave me the opportunity to do something other than answer the phones. When Draeger finished the installation of the new servers and workstations the equipment then had to be configured to work on WRNMMCs’ network, this required me to work closely with the Draeger and the NetOps group. I then had to work with Draeger and the Information Assurance group to build the servers and workstations so that they could start to receive vulnerability scans to ensure they are compliant with DOD standards. The process took longer than Ms. Lacaze and Mr. Clervil thought it should and they began to put pressure on me to complete the task. Once again they refused to acknowledge that I was still on Light Duty and began to pressure me for results and at the same time they expected me to address other issues happening in the MOR. I felt that those tasks could have been assigned to other staff members so that I could concentrate on the servers and workstations but they continued to select me. I thought my return to the MOR would change things but it didn’t, things remained same for the remaining months until I was falsely written up in September and eventually wrongfully terminated in November of 2014. Ironically I was once again designated as the Emergency / Mission-Essential Personnel on October 2014.
I received a Written Counseling document on September 25th 2014. I was given a whole list of reasons why but I believe it revolved around an incident that happened on that day which left leadership looking for someone to hold responsible. The Written Counseling letter began mentioning number of CAT1 vulnerabilities which had been a big issue with management but when the system got shut down in the middle of the work day, the letter was waiting for me. It didn’t matter that I didn’t have the type of permissions needed to shut the system down or that I sent an email to Steton Walker a Senior Server Engineer and the person that was responsible for the shutdown. My email gave specific instructions on what Mr. Walker could do and when he could do it; I also included all of the department’s leadership on the email string . I was in the medical center all day (as I stated in my email) so I didn’t see any of the emails being sent from management but when I did, I couldn’t believe what I was seeing. I saw a message from Mr. Clervil to the MOR staff instructing us “As per protocol please do not run any programs or scripts that will affect the business activities of the users without clearly notifying them of your actions and getting approval” which is exactly what I had done (complete message. I continued to read the email and when I came across an email from my Point of Contact in the Anesthesiology Department it became that Mr. Walker shut the system down at 1:00PM instead of 1:00AM as we discussed. It was Mr. Clervil’s email that really didn’t sit well with me, I had included him on the email string that I sent to Mr. Walker at 11:13AM but in his email to the MOR staff at 3:20PM he didn’t address Mr. Walker. I absolutely believe Mr. Clervil’s email should have explained that the MOR staff was functioning normally and placed the blame with Mr. Walker, who was the person responsible. This could only happen because he did not read my email from earlier that day or he was determined to blame me; he also mentioned something about me not communicating in the Written Counseling document. Mr. Clervil’s actions were definitely unfair, discriminatory, harassing, exaggerated and dishonest. I stated in my email I was in the medical center all day rebooting the systems in the satellite clinics so I was not aware of the catastrophe that Mr. Walker had caused until I returned to the office later that afternoon. To my knowledge, nothing was ever said to Mr. Walker for his part in all of this but when I arrived back at my office, Todd Heller, the STS Integration Systems Human Resources representative called me into his office and told me that it was requested I receive a Written Consultation.
For the record, I want to address the Required Corrective Actions mentioned in the Written Counseling document. The document consisted of 8 required corrective actions that I believed were described by Mr. Clervil. The main operating room staff had 3 employees including myself but the 2 other employees are never mentioned in any of Mr. Clervil’s corrective actions comments. I was referred as the Lead for the Innovian Application which was incorrect; shortly after I returned to back to work from my injury Mr. Clervil and Ms. Lacaze both said that the Lead position had been eliminated (this happened right before I was assigned to the phones). All 3 of us that worked in the MOR (Main Operating Room) were equal but once again no one else was mentioned in the corrective actions comments document except me. I don’t understand how they could not assign someone to assist me or take the lead since I was on Light Duty. I was and still am under a doctor’s care and his instructions still apply and my Worker’s Compensation claim has not been resolved (I am drafting this document on November 21, 2015). When you review those corrective actions issues, it will become clear that my doctor’s Light Duty instructions were ignored. I also have included a document that will verify that I was still receiving Physical Therapy during the period between September 2014 and October 2014
I want to address the Required Corrective Actions mentioned in the Written Counseling document.
Ms. Lacaze and Mr. Clervil as stated made me personally responsible for the mitigation of over 1300 CAT I and CAT II vulnerabilities. I mentioned in my email that I was working in the medical center all day but Ms. Lacaze ordered me to go back over to the Medical Center when I finished talking with Mr. Heller and make sure all of the workstations were working. I had been on my feet most of the day I was in a lot of pain and had major swelling in my feet and legs. I had just begun more Physical Therapy sessions on September 8th 2014 The document also states that I had until Tuesday September 30th to complete this task but the 25th was a Thursday so since there was no overtime allowed for this task, I only had 2 days to get it done. They said that I could not work on it remotely which would have made it possible for me to work from home; they said I had to come on base and go over to the Medical Center and physically address each workstations’ issues. They also neglected to assign someone to assist me which is why I continue to mention that they didn’t care about me or my doctors’ instructions.
1. I sent Mr. Clervil weekly status reports almost every week The times that he didn’t receive a report was due to the fact that I was out of the office.
2. I tracked the patches by using a spreadsheet that I created and I could check them off as I completed them. I always mentioned my progress in my weekly status reports that I sent to Mr. Clervil.
3. Some of the issues that was preventing the newly imaged workstations from being scanned were that each workstation had to be manually configured comply with explicit specifications to be added to the network. The Information Assurance group had to be manually added to local Active Directory on all off the servers and workstations. These results were achieved through much deliberations and collaboration between Draeger, the NetOps group, the Information Assurance group, Mr. Walker and Myself. This upgrade was a simple Plug-and-Play type of project. This project consisted of a lot of processes and it would helped greatly if they had assigned someone to assist or manage and let me assist; after all Mr. Clervil stated back in January” that there is no Lead position within the MOR staff.
4. These workstations don’t have CDROM’s for security reasons so running patches from a CD was not an option. I strongly feel that the Project Manager should have known those types of details about the system he is supposed to be managing.
5. I communicated with Mr. Clervil through emails, phone calls and weekly status reports. One example is he should not be able to accuse me of not communicating if he doesn’t read my emails. Mr. Clervil let the MOR staff seem responsible for the shutdown as opposed to pointing out that Mr. Walker is the only person with permissions to make a scheduled shutdown like that happen.
6. I always gave advanced notice for any scheduled leave. ITD leadership mandated that all scheduled leave had to be requested 2 weeks in advance. The only time that I deviated from that mandate was for sick days which for me included days where I was physically unable to work but I would still call in to inform someone in management. I always brought Mr. Heller my notes from my doctor to provide transparency regarding my progress and medical treatments.
7. I created a HTW (How Things Work) folder on a network drive so that my coworkers would have access to all of the documents that I drafted.
8. I constantly spoke of my inability to perform certain tasks and asked for help from the first day that I returned to work. I don’t think that they really understood the pain I had to endure some days.
This document concluded stating that if the Consequences if Corrective Action is Not Accomplished: This is a one month corrective action plan. Failure to complete any of these steps will be grounds for termination. As I stated before they demonstrated no consideration to me still being under a doctors’ care for a very serious medical condition.
I was terminated on November 14th 2014 due to a second system failure that occurred on November 4th 2014. This issue was the result of a change in 2 of the DNS servers and an unscheduled shutdown of the remaining server. All of the servers and workstations that used the decommissioned servers had to have the DNS IP Addresses reconfigured to utilize the new DNS servers. The old DNS servers were decommissioned around four months prior to 11/04 which means email notifications should have started as early as March or April so that ITD staff would have plenty of time to switch from the old servers to the new. In January of 2014 Mr. Clervil assigned me to desk duty, more specifically, I was instructed to do nothing except answer the phones. Mr. Clevil chose to limit my duties, therefore, he was responsible for assigning the other 2 staff members to complete this task long before I was allowed to return to the MOR. Unfortunately Mr. Clervil was seriously injured in an accident so Ms. Lacaze spoke with me and told me that she held me responsible for this issue. She produced emails warning staff members of the upcoming server decommissioning and reminded me how the topic was discussed in several meetings. Our conversation ended with her telling me that she was going to discuss this with Mr. Heller when he returned to work. Ms. Lacaze must have forgotten that she supported Mr. Clervil’s decision to relieve me of all responsibilities except answering the calls to the MOR helpdesk. I thought about reminding her of that fact but after everything that they put me through, I didn’t believe it would have made a difference.
I am still under the care of Dr. Talal Ghazal who is a Pain Management Specialist. I had a series of three Spinal Steroid Epidurals in July of 2015 and a Facet Joint Procedure in October of 2015. He has also referred me back to a Physical Therapist because I still have problems due to the injury.
I have now filed an EEOC complaint have gone in for a arbitration but the firm will only settle for $12,000 dollars when I requested $300,000.00 because I can not work and have been determined disable. I have not signed anything nor settled. My question to you is this the norm to have the a company try to settle so low and if it is, how can I pursue this matter further so that I am compensated properly?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Yes it is very common for an employer to try to settle in that range at this point. The EEOC is not a court, as you know now, and cannot force any particular resolution. They can only get the parties together to discuss the matter and that's all.

So, following the EEOC complaint stage, an employer will only offer a very low amount. There is no reasonable situation where an employer would settle for $300,000 or anywhere close to that, at this stage of the situation.

This is because you still are not anywhere near actually obtaining a judgment against them. They have a great deal of time (perhaps a year or more) before that could be a possibility, so they have time to wait. It doesn't hurt them to now make a small offer, particularly if you took it.

Your next step, upon receiving an EEOC "right to sue" letter, is it find a local attorney and file a Federal lawsuit for discrimination. After you file that suit, the employer and you will go through the discovery process (where each gets to ask questions, take depositions and respond to questions). After that is done, then will come Motions where the case can possibly be resolved without a trial. If your case survives a Motion for Summary Judgment, only then have I seen employers begin to really seriously start offering settlements. It is because, at that point, the case can go to trial and it is trial that frightens employers, because juries are unpredictable.

Of course, you have to keep that in mind too. A jury could think you are 100% right, but not give you anything close to $300,000. They could give you exactly that...or more. They could give you $0.

All that said, until you get through that stage (summary judgment), I would not expect any serious offers from the employer.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required.

If so, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.