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Mhancock74

Wrongful Termination or Discrimination

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To avoid a long story spanning 2 1/2 years, I will try to condense.

 

I was injured in a car wreck in 2011 requiring immediate surgery to repair proximal humerus fracture, rotator cuff tear exceeding 90% and left with severely limited mobility and unable to work with arms above head at all without fear of injury.  I was offered a job in 2014 and negotiated this accommodation into my new job before accepting it so the employer had no surprises.   As soon as I started my new job, I added a written request to my file for this and for another reasonable accommodation regarding a sleep disorder that was currently under control.  My primary physician was treating my Delayed Sleep Phase Disorder with great success but fearing relapse, my doctor provided supporting documentation and as directed by my supervisor also CEO put this on file asking for adjusted morning schedule should these symptoms relapse or treatment stops working.  For over a year and a half, I never once missed any time from work.  I was never late, took no vacation, no sick days, and no personal time at all.  In March of 2015, my doctor died and the physician my files were transferred to knew nothing about DSPD. He transferred me to another and this went on with several different doctors until my boss suggested I see his doctor.   That Dr began treating me with the complete opposite type of medication and I began over sleeping some mornings.  I explained what was happening but my boss said he didn't care, not to allow it to make me miss work.  He said he believed DSPD was fabricated and not a real thing but instead an excuse for being lazy.  I began then staying up for several days even on days that I worked 36hr shift's often straight through because of being on call at night.  Of course when that caught up with me, I would crash and usually be late the day after finally getting some sleep.  He began trying to make me uncomfortable.  I'm an embalmer and being suited up in the operating room is hot especially with high blood pressure and he would take and hide the AC and vent controls making it both unbearably hot and dangerous from fumes often times for several days.  Then July 26 of this year, he insisted that I go to a cemetery and take down a funeral tent in the rain and thunder storm which required lifting almost 200lbs overhead.  When I did this, I tore my epicondylemail muscle in my elbow and dislocated my previously injured shoulder.  When I reported this and then told him I was not going to be able to come in the following day, he fired me.  He then denied my access to approved physician list of Workers Comp drs.  Refused to file a report and then denied the injury to wc, fighting me on unemployment.  He then 2 days later evicted me from a home I rented from him.  My question is what course of action do I have at my disposal?

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That is insane.  Call the EEOC tomorrow!  You have zero time to file a claim and it may be too late (I'm so sorry), but they will let you know.  I think it is 180 days to file a claim from the onset of this harassment.  You only have to elude to a disability (i.e. I am going to my psychiatry appointment Wednesday, Mr. Bossman, as an example) and you went far beyond letting the employer know of your disabilities and need for accommodation (Good for you, but not everyone wants that known for this exact reason - very unfair).   I wish you the very best.  If it is too late for the EEOC, call the unemployment office, and workers' comp state agency, whichever applies, plus you still have an opportunity to file a civil suit against him personally - 3 years for most states but some are less).  It's the point.  Gather everything you signed with this company and your apartment, plus get a copy of your employment file to review procedures.  Sending strong vibes, friend. 

Regards, Diana

 

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The first question I have is this: how many people does the funeral home employ? Unless it employs at least 15 people, the Americans with Disabilities Act will not even apply. Most funeral homes are not very big operations, so it may be that it is too small to be covered by federal law.

 

The second problem here is that it not clear that you requested an accommodation for your disability, assuming that you indeed have a disability as defined by the ADA. The employer does not have to accept sub-par performance from any employee, whether disabled or not. Coming to work late is not excusable even for a disabled employee. You could have asked for a reasonable accommodation to deal with the disability so that you could do your work up to the necessary standards, but did you do that? What specific request for accommodation did you make? You don’t have to use the words “reasonable accommodation” but you do have to make a request that the employer would recognize as seeking a reasonable accommodation, e.g. “I have a sleeping disorder that makes it hard to get to work on time sometimes and to deal with that I request help with  ________________.”

 

If there was an ADA violation here then before you may sue the employer for that violation you must file a complaint with the federal Equal Employment Opportunity Commission (EEOC). For an ADA violation by a private employer in Georgia the complaint must be filed within 180 days of the discriminating event. If you file late you are barred from recovery in a lawsuit later. Information on how to file a complaint with the Atlanta office of the EEOC may be found here: https://www.eeoc.gov/field/atlanta/charge.cfm

 

The employer may have violated one or more state laws here, though more information would be needed to determine that. As a starter, Georgia's version of the ADA also only applies to employers with at least 15 employees.

 

I strongly suggest you meet with an employment law attorney who handles wrongful discharge and illegal discrimination cases for employees ASAP to go over your situation and determine what recourse, if any, you have at this point in time.

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I was discharged July 27 and I made written requests both for my shoulder and my DSPD.  Both had medical documents backing them up and I was only injured because of them requiring me to do something my shoulder is not capable of doing anymore.  This is a larger funeral home and employs over 20 people at this single location. 

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The shoulder would fall under WC and that is your exclusive remedy. you can file a claim whether or not you are still employed.  They can ask you to take down the tent. That isn't illegal. Even if you requested an accommodation, it need not be the one you preferred. Allowing you to arrive late and at unpredictable times may not be reasonable.

 

He doesn't deny you UC. That decision rests solely with the state. If you disagree with the state's decision, appeal.

 

It is also unclear how you were evicted. Was housing part of the job? If so, then it stands to reason that if you are no longer employed you need to find other living arrangements. Did he just tell you to move or did it actually go through the courts? Did you have a written lease?

 

I don't see any basis for a civil suit, at least not without going through the EEOC first.

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Hi @Mhancock74

 

Welcome to the community and thanks for posting. So sorry to hear both about your injury and about your termination from your employment. Looks like you've already gotten some great guidance from the legal community. FindLaw also has some helpful materials about employer disability discrimination that you may wish to review.

 

As others have mentioned, you may also want to consult with a worker's compensation attorney and/or an employment attorney. I have provided links to our lawyer directory -- many of our attorneys offer free consultations.

 

Best of luck and keep us posted!

The FindLaw.com Team

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I negotiated my inability to even reach straight up above my head following my 90%+ rotator cuff tear and double  humerus fracture stating cemetery work was why I removed myself from my own personal business including my own vault and monument company. I advised them before accepting their offer or leaving the corporate position I held at another firm that if I was going to be required to work in that area, I would have to decline their offer even with their promise to provide employment until retirement with a guarantee of financial satisfaction upon my 60th birthday and date of retirement.  I also provided medical documentation concerning my dspd and they had over 1 1/2 yrs to argue or negotiate another option yet they made several schedule adjustments for other employees so to argue that it was an undue hardship is not a fair resolution.  They would not even allow me to use the vacation days that were earned over my time there so when terminated, I still had 11 paid vacation days unused and uncompensated.  

Screenshot_2016-08-18-14-28-49-1.png

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I may not have mentioned it but I also have him recorded in a phone conversation admitting to evicting me in retaliation for me exercising my right to legally file claim for my injuries.  Home was not really attached living because I didn't have to live there plus I paid rent like everyone else in his rental properties.  He also admitted to tapering with the judicial system so even not following legal course of eviction, court ruled in his favor even with me having laws but didn't matter since he admitted the judgement was made before we ever stepped in the court room.

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