Winning unemployment when fired for unsatisfactory performance

by Brenda
(Ashtabula, OH)

Perhaps curiously I was told "poor performance" when I was fired, "unsatisfactory performance" in the formal letter sent from my boss after being fired, but Unemployment was told "violation of a company policy." I was a social worker in a nursing home for about two and a half years.

I'm sorry this is so long but I wanted to be detailed. This is what's happened: Up until 1/09 I had good evaluations. In 12/08 I went to a doctor for a mystery back pain, which the doctor thought was just a strained muscle. In 1/09 I had an "annual evaluation" (about six months past due and reflecting information within the most recent six months), was given a bad evaluation, and issued a "Final Written Warning" that I had 30-days to get my paperwork up to date or I would be terminated. Presumably I succeeded because at the end of 30-days nothing was said (positive or negative) by my boss and I still had my job. In fact my department received no negative citations during our annual Survey by the Ohio Dept. of Health and in fact, one of my "Care Plans" actually saved the nursing department from a negative citation. The pain in my back never went away and continued spreading and in 5/09 I was diagnosed with Fibromyalgia. I informed my boss at the time of my diagnosis. She did ask if I "needed anything." I deferred to simply continuing the medication treatment my doctor had ordered. In 11/09 I had another "annual evaluation" (my annual evaluations are due in July each year) that was bad. I was told I was not keeping my "Care Plans" updated. At that time, much to my shock, I was also issued a "Final Written Warning" for "unprofessional conduct" as a result of my participation and certain comments I made on a professional Social Worker support email listserve I'd joined several months prior. My participation had always been on my own time and the facility/company was never identified, however someone on the listserve apparently used my name to track down where I worked then "out me" to my boss and company. I ceased my participation. After a referral to a neurologist 10/09 and much more testing, in 12/09 I was diagnosed with a rare disorder called Mitochondrial Disease. (My symptoms essentially mimicked those of Fibromyalgia.) I informed my boss of this diagnosis, it so happened on the same day we were discussing particular doctor's visit I handle. Unrelated to my health, and simply because I had finally convinced her that my social worker time was not best utilized pushing people in wheelchairs back and forth to see a doctor, my boss had several months prior agreed that an office assistant could do this task. However, it turned out that because the office assistant was covering for an employee out of FMLA at the time, I was told she was unavailabe to help with the doctor's visit. I had made arrangements that morning with doctor for him to go around and see patients, and explained to my boss that I was not up to pushing 45 people in wheelchairs back and forth through the building for four hours. This particular doctor only visits twice a year. My boss asked if I had any physical limitations in writing; I did not, it was simply a personal realization. Her response to this information was to immediately inform me the facility did not offer "light duty" and question if we needed to "discuss FMLA." I declined a discussion of FMLA, since my being out would only increase the workload on others and sickleave wasn't going fix an incurable disease. In 1/10, with a new Director of Nursing hired and corporate people during "pre-Survey audits," I was informed during a general meeting that my "Care Plans" were not written appropriately and needed to be redone - this was in reference to the style of Care Plans I had shown my boss over two years ago, before officially implementing. Two years ago she was pleased by those Care Plans. No official "rules" had changed regarding Care Plans, yet suddenly they were no longer acceptable. Every client has a Care Plan and I was assigned around 90 clients at that time. About two weeks after this, on 1/27/10 I was called in for a meeting and terminated. The issues written at that time for my "poor perforamce" involved not following up on three client housekeeping issues, untimely follow up on client referral, "asking" for direction with an issue the day prior, and (I believe) my Care Plans. The first three issues I stated above I wrote on my termination form to be factually inaccurate (follow up had occurred and my boss had misinformation.) Whatever I had to state or that wrote was given no consideration on 1/27/10.



I have no idea whether any of this is relevant but: the company policy was to give "annual evaluations" every 12 months. I had a fellow co-worker who stated she had never received an annual evaluation from our boss in three years. Before and after I was hired I asked for a written job description, but never received one. My assigned job duties continued to increase in quantity over 2009.

So I'm wondering about my chances for receiving unemployment based on this information. I was actively following up with doctor's to try to determine and manage my health issues. My negative write ups occurred after the onset of my health problems. I do not feel I was evaluated fairly, in comparison to my co-workers and do feel there was definite favoritism - if you were liked by my boss you were less "scrutinized."



Hi Brenda,

I think it is a winnable case.

As always I suggest you not only testify at a hearing, but submit useful documentation and provide witnesses to support or corroborate any valid point you feel you need to make, which is where most unemployment claimants fail.

I can never guarantee victory even when someone prepares to win, but I'm open to taking bets you'll lose if you don't.

Documentation can include the employer's policies, or documentation you know to be in your personnel file that you think the employer wouldn't want the UI dept. to see. It can be email communication and or medical documentation .. it can be just about anything as long as it has relevance to the issue at hand and supports testimony.

The definition for misconduct per Ohi, can be found here ..

You will find this resource helpful to prepare for an Ohio unemployment hearing .. and even for preparing to apply for Ohio unemployment.

It never hurts to know going in, what's going on.

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Feb 11, 2010
Additional Info & Question
by: Brenda

I am just at the initial questionaire phase (input from me and from employer.) I did not bring up my health issues and treatments and am wondering whether I should have. I did state that my employer had sent me a written confirmation letter for "unsatisfactory performance" and not "violation of a work policy."


You should have, if you believe you can show the employer's discipline and eventual termination had anything to do with your health, but I believe you told me they asked if FMLA should be an option for you to consider and you declined.

This make the issue irrelevant .. at least in my mind.

Unsatisfactory performance becomes misconduct if it can be shown that your performance rose to a level that makes it misconduct .. inability or sudden departure by the employer from what had been proper formatting of a care plan to now being unsatisfactory formatting is what I'd call a weak case for misconduct. No job description or proper formatting provided.

Not timely responding to certain things might look like misconduct, but you could argue that your caseload kept growing.

This is what you need to do. Use your intimate knowledge to first speculate what the employer's argument may be and then develop a counter.

Feb 12, 2010
Additional Comments
by: Brenda

If it comes down to an argument/appeal, I'm thinking that I might argue any potential "misconduct" accusation with the facts/medical record evidence that I was actively pursuing medical care for my (debilitating) health conditions, that I never called off on work days due to my health conditions, and that I did work overtime to resolve immediate client concerns. I'm equating "misconduct" to be an intent not do my assigned job, which is not apparent via the above information.

I would also argue that I declined FMLA with the thoughtful, rational notions of how it would put undue stressful tasks on co-workers and due to the progressive nature of my illness, time off on FLMA would not serve to "improve" my condition.

I'm actually hoping the fact that my former employer gave Unemployment a different reason for terminating me than what they sent me in writing, and I can prove that with the letter, will effectively work toward my winning benefits.

May 05, 2010
BEING FIRED FOR UNSATISFACTORY PERFORMANCE
by: Anonymous

I THINK IT IS SO UNFAIR, FOR JOBS TO FIRE YOU, SO, THAT THEY ARE WINNING.. IT SHOULD BE A LAW, THAT WORK PLACES, CAN NOT GO AND FIRE YOU, ON ANY THING THAT THEY CAN GET THERE HANDS ON.. PEOPLE WHO HAVE NOT EXPERIENCE ON WHAT I AM TALKING ABOUT, WILL NOT KNOW WHAT I MEAN.. I KNOW THAT I GOT FIRED FOR THIS, THERE SHOULD BE A LAW AGAINST FIRING PEOPLE FOR THIS.. THERES ALWAYS MORE TO IT.

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