by Jim
(Ohio)
On Friday January 9, 2009 I told the HR manager I wasnât coming in on Monday and need to talk to my lawyer. The HR manager requested my keys and I boxed up my belongings and left work.
I have summarized the series of events that has lead to my decision.
I was hired on 8/21/06 at a Library as a Graphic Designer.
On 4/24/08 I left work due to illness. I had not slept for four days. I went to my Primary Physician and he diagnosed me with severe insomnia, anxiety and panic attacks.
On 4/28/08 I sent my work supervisor an e mail and explained my illness. In the e mail I explained my anxiety was related to job pressure and my workload. I explained that I had become overwhelmed and asked that âconsideration be given to controlling and managing the work load placed on our department.â
Based on my physicianâs ( ) diagnosis I was prescribed several medications to address my anxiety, insomnia and panic attacks. I also went to counseling.
I applied for FMLA and was off work from 4/24/08 and returned to work on 6/23/08 when my illness was under control.
Upon my return from FMLA leave, my employer acted and treated me completely different from the time prior to my leave. I was now being singled out and treated differently from other employees. I was treated in a retaliatory manner by my supervisor.
On 7/3/08, only nine days after returning to work, I was handed a written Progress Report from my supervisor. Prior to the FMLA, I was never given a written Progress Report. All feedback from my supervisor prior to my leave was that my work was satisfactory.
The Progress Report rated me in ten competency categories and suddenly I was only satisfactory in 5 of the 10 categories. I was notified that unlike other employees, I would now be given another three month progress report in November.
The report included the following:
1. I âneeded to limit my breaks to one per day.â Since I witness most employees taking more than one break per day (and smokers taking multiple breaks) I was being singled out. Prior to the FMLA I was permitted to take more than one break.
2. I was also informed that âShe must arrive for work at the specified time and, if late, make up that time at the end of the day âI stated that I always made sure I worked my 37 hours per week as per my scheduled time. My approved timesheets always reflected this.
On 11/18/08 I was handed a written Progress Report and I was given a satisfactory in 9 out of 10 competency categories.
The Progress report included the following:
1. â has six occurrences of unapproved absenceâ¦â¦..an example of an unapproved absence is failure to provide 24-hour notice of a doctorâs appointment or calling in sick. â After reading this I asked my supervisor why my doctor appointments or sick days were listed as âunapprovedâ since I notified my supervisor in advance and she approved my timesheets. And, I had followed the same procedure for the last two plus years Prior to the FMLA and it was never considered âunapprovedâ. I was told that I failed to âprovide 24-hour noticeâ.
2. â must track her time accordingly by sending me an e-mail when she is leaving for lunch and when she returns. I stated that no other employees are required to follow this procedure. I was told I must follow this procedure.
3. I stated in my written Progress Report -self review, I made a simple request for approval to take a few minutes every hour or two to walk around or walk to the bathroom and see if it helps with my neck and back pain from sitting all day. I was told to provide a doctorâs note to get approval.
On January 9, 2009 I was handed a written Disciplinary Action Notification from my supervisor and HR Manager. The notification stated that â Since November 21, 2008 you were late returning from lunch thirteen (13 ) times. â I was given a copy showing the twenty dates with the time each e mail was sent before my lunch and when the e mail was sent after my lunch. The list showed that the times between e mails sent each day were between 61 minutes and 67 minutes. After you factor in the time for me to turn off my computer before lunch, then turn it back on, log in, enter my password, and type the e mail, It confirms that I was complying with this new policy. The consequences for having one more e mail being sent that was one minute above sixty minutes would be 1-3 work day suspension without pay.
The Disciplinary notification then included another requirement. Now Iâm to send my supervisor an e mail upon arriving at work. I asked the HR Manager if any other employees are required to send e mails when arriving to work or at lunch. She stated it was none of my business.
It was obvious from the moment I returned from FMLA that my supervisor was going to retaliate against me. I was being treated differently from all other Library employees. I was being set up for failure. My supervisor rarely spoke to me. Her policies on work schedule, sick time and Doctor appointments all changed after my return from FMLA. I could no longer work in this retaliatory environment.
Hi Jim,
The first thing that struck me was the references to the employee being female. Just curious.
My second thought was Good!! He’s going to talk to a lawyer and I suggest it be done before you apply for unemployment.
Employment lawyers use unemployment hearings as “free discovery”, and because of a doctrine of law called “collateral estoppel” it’s important to talk to one about your situation.
It is illegal for employers to engage in retaliatory practices and the fact that the practices began nine days after your return from FML just adds strength to your contentions.
When a reasonable person is given no choice but to quit it is a constructive discharge. You were forced to quit or “involuntarily quit”.
I think you will probably receive unemployment, but I really do think a lawyer is the way to go because there are bigger issues here than just unemployment benefits and you do not want to lose at an appeal hearing because of that doctrine I mentioned.
HR managers are the compliance officers of the business world. Some are very adept at manipulating events to achieve their desired outcome. It could be, the intention all along, was achieved on January 9th and they have absolutely no intentions of fighting your unemployment, but arrogance does come into play often enough to keep courts busy with civil lawsuits.