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Tina, Lawyer
Category: Employment Law
Satisfied Customers: 8184
Experience:  JD, BBA, recognized by ABA for excellence.
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I work state. I had been covering a position that was a step

Customer Question

I work for the state. I had been covering a position that was a step above mine during maternity leave and as a back up while doing my job as well. I was told at the end of her maternity leave I did a great job. I have never received any negative feedback. I have made huge improvement in my current position which are all verifiable. However, they are dismissed and treated as insignificant. When then position I was covering opened up I naturally applied. They decided to open the position externally and hired someone else. That did not work out and upon leaving that employee told me that she was advised to "watch out for me". She apologized for avoiding me at first and said I treated her nicer than anyone. She also said that she doesn't understand why I didn't get the position as I clearly know the job better than anyone elsr. After she left they asked someone who works under me to take the position. This lady would agree that she knows far less about the position than I do. But she is capable and I have been very supportive and quietly hell answer her questions as the bosses don't allow me to help people in that spot. After a couple weeks she decided she did not like the job. They begged her to stay in it and gave her a pay increase to stay. I went into my managers office and said that I felt that I didn't have a chance of ever getting a promotion and if there is no possibility for promition o may need to look elsewhere. Her only response was that she understood. Her response confirmed my suspicion that I will not be considered for even future promotions. I still back up for that position and still have never received any negative feedback about my work and everyone who works with me goes to me for help and answers as I do know both positions well and do a good job. Do I have any options? I fear that by pushing the issue they will try to drum up reasons for me not to promote and make work miserable for me.
Submitted: 1 year ago.
Category: Employment Law
Expert:  FamilyAttorney replied 1 year ago.

Hello. I’m a licensed attorney with 36 years’ experience. I specialize in family law and appeals, and I have many years’ experience with landlord-tenant issues and contract law. I also have written hundreds of legal articles. I look forward to helping you today.

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I had to re-read the question -- this was someone else's maternity leave, correct? Also, do you have any idea why they would discriminate against you? Is there something else that's not in the question I should know about? Thanks!

Expert:  FamilyAttorney replied 1 year ago.

Why would they say "watch out" for you? What do you think that is about?

Customer: replied 1 year ago.
I think they assumed that I would treat her badly because I didn't get the position and they went external. I would never behave in such a unprofessional manor. After I was passes up for the promition I did not say a word to anyone and I continued to work with a positive attitude. No one I work with would ever believe that I would behave that way. I asked my managers about it and they denied saying it. However, we talked for about 30 minutes on her last day and she communicated several things that I recognized as words the managers would say amd she had no reason to lie. She was a very professional person and not at all a gossip or troublemaker. They continue to use me as a back up and give me work from the position that I didn't get.
Expert:  FamilyAttorney replied 1 year ago.

So there appears to be nothing about you that they would discriminate against? You're not disabled, a minority or fall under any other classification -- and they're giving the job to women, so it's not against gender. There's no other reason that you can think of?

Customer: replied 1 year ago.
No, and it's likely that their reasons don't have anything to do with any protected rights. I am at a loss. When they need answers or need something to get done they go to me. But it's clear to me and my co-workers that they want to keep me down so to speak. I am on FMLA as a result of PTST. I dont get stressed with work and am typically very mild mannered and quiet but I have had few times when I had to leave work and was visibly very emotional. I have no reason to think k that is the reason though as it has not effected my work, other that leaving early a few times.
Expert:  FamilyAttorney replied 1 year ago.

I'm sorry you're going through this. I've read a lot of literature about promotions and why people don't get promotions even though they're qualified. There is no rhyme or reason sometimes and there doesn't appear to be any legal action that you can take here unless it is for the FMLA itself. Sometimes there is FMLA discrimination about taking leave that other employees may not take. Is this possible here?

The thing with failure to promote is that there are standards for promotions and the bosses never really tell anyone what those standards are. You can approach your supervisor and not find out what the company's reasons are for failing to promote, as sometimes they can't even verbalize it themselves.

If this is because of FMLA, then perhaps it is actionable. It would depend on the circumstances. Do you have an employment contract?

Expert:  FamilyAttorney replied 1 year ago.

Also, since you work for the state, I'm sure there are more than 50 employees there.

This could be an FMLA discrimination issue.

Some employers will make the mistake of discriminating because of the FMLA. For example,

  • Disciplining or firing employees for taking leave. Only the least savvy employer would punish an employee for using the FMLA. However, more subtle forms of discipline can crop up, such as counting time off against an employee, giving an employee a bad performance review based on work that wasn't completed because of the employee's leave, and so on, which could include failure to promote.

We can speculate about all kinds of things but this is about the only thing you're telling me that would be actionable -- that is, that you may have a legal claim against the company for failure to promote based on taking leave under the FMLA. The employer may have seen when you've been emotional and may have used that against you. It's unfair, and it's possible that it's discriminatory if this is what they did. In that event, you may indeed have an action against the employer but you'd have to prove that it was FMLA related. You may be able to do that by eliminating other reasons.

Customer: replied 1 year ago.
I work for the State of Oregon. We have a union but I don't remember reading much about promotions. Only that they have to open the positional internally first. I considered talking to the union rep but anything I do will cause them to make life at work more difficult.
Expert:  FamilyAttorney replied 1 year ago.

Yes but they can't retaliate for your going to the union. That's not legal and there can be an action against them for that too.

Expert:  FamilyAttorney replied 1 year ago.

They can't retaliate against you for making a complaint or for going to the union. You are protected in those instances by Federal law.

Expert:  FamilyAttorney replied 1 year ago.

If you think this is because of the FMLA and for no other reason, then you may want to discuss this with an employment attorney in your area to see if you want to follow up with your job, such as a letter to discuss your future at this company and to advise them that they cannot pass you over for promotion due to discriminatory reasons. If that fails, then you'd have to decide whether it's worth it bringing an action against the company. Again, you'd have to prove that it's because of the FMLA that they are discriminating against you, but you'd have to rule out other things. They have their standards of promotion and obviously they will not tell you what that involves and what you need to show them to be promoted. It may have nothing to do with competency. It may have to do with other things, and I'm not agreeing with what they're doing, but I'm just pointing out that from all the articles I've read, a lot of promotion has to do with skills such as aggressiveness, ability to multitask without feeling pressured, etc. There could be many other reasons why they are not promoting and it's not all actionable. Some of it is -- such as taking it out on you because of FMLA -- but for any other reason, it would not be actionable. Also, again, you have the right to go to your union and if there's retaliation, you have the right to bring an employment lawsuit against them for retaliation.

Does this answer your question? Do you want a list of employment attorneys in your area? I provide that at no extra cost to you as a service for my customers to make sure I help you and point you in the right direction. If so please let me know your nearest town/city and I'll find employment attorneys for you -- you'll be able to pick one based on the guidelines I'll give you. That's entirely up to you.

Expert:  FamilyAttorney replied 1 year ago.

Hi, just checking in to see if you still need help with your question. Thanks!


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