Wrongful terminiation? because of a disability?!

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Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Tue Sep 09, 2008 1:30 am

I'm bipolar, live in Oregon Question Question & ran out of my med the Wed before I was terminated. I'd been on the job for a little over 2 weeks. On that Thurs I had a manic episode, but was still able to preform my duties on the job. Fri I was 15 min late & explained to the Regional Director that I was bipolar & have nocturnal epileptic type episodes. These can sometimes make me drained, but I worked the whole Fri & was told I was doing really well. On Mon I still didn't have my med, & was having problems with concentration, but again was still doing the job they hired me for. By Wed my immediate supervisor requested I go to a local doctor (I was having problems with my San Diego doctor sending the medication) & get my med. I did as I was requested. My supervisor told me if I couldn't make it in the next day just to call & let her know. There was no indication of my job being in jepordy. They told me I had been doing a good job the week before & they could see I was struggling the week they terminiated me, they also said there was a lot to learn & not to worry. I took my medication Wed night and Thursday morning called & let my supervisor know I needed that 1 day for the medication to stabilize in my system. Later that morning I got a call from Express Personnel, saying that they were terminating me because I was unreliable. My resume & my letter of recommendation from my previous employer, completely contradict that. I worked for Jack Rowe for over 10 years! I feel like I've been discriminated against because of the one day I took for my med to get in my system. I've always been on my meds, & because of relocating & my insurance not available in Klamath Falls (Kaiser) it takes longer to get my meds. Am I being discriminated against? This whole thing has made my depression worse, even though I'm on my meds.Please someone, let me know where I stand?

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Re: Wrongful terminiation? because of a disability?!

Post  JoeC (McGruff) on Tue Sep 09, 2008 2:10 am

Do I have this right you have been employed with the employer for two weeks?
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Re: Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Tue Sep 09, 2008 3:11 am

That's correct. It was 2 weeks & 2 days exactly

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Re: Wrongful terminiation? because of a disability?!

Post  JoeC (McGruff) on Tue Sep 09, 2008 3:25 am

If that is the case it makes it difficult to find an attorney or launch a suit. Oregon UNLAWFUL DISCRIMINATION AGAINST PERSONS WITH DISABILITIES provides similar language to that of the Federal A.D.A. .
O.R.S 659A.103 (2) The right to otherwise lawful employment without discrimination because of disability where the reasonable demands of the position do not require such a distinction, and the right to use and enjoy places of public accommodation, resort or amusement, to participate in and receive the benefits of the services, programs and activities of state government and to purchase or rent property without discrimination because of disability, are hereby recognized and declared to be the rights of all the people of this state. It is hereby declared to be the policy of the State of Oregon to protect these rights and ORS 659A.100 to 659A.145 shall be construed to effectuate such policy.
The employer when made aware of a disability must engage in an interactive process to come up with a reasonable accommodation, which does not place an undue hardship on the employer.
O.R.S 659A.112 Employment discrimination. (1) It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a person with a disability...(e) The employer does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified person with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.
The statute defines disability (impairment) somewhat different than the federal statute
O.R.S 659A.100(B) The impairment significantly restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity
., and there only has to be six employees to put the employer out of compliance which is lower than the federal statute.
659A.106 Employers to whom ORS 659A.100 to 659A.145 apply. The requirements of ORS 659A.100 to 659A.145 apply only to employers who employ six or more persons. The requirements of ORS 659A.100 to 659A.145 do not apply to the Oregon National Guard. [2001 c.621 23]
All that said it is difficult to make these types of discrimination cases Oregon does allow plaintiff to proceed directly to court without have to satisfy an administrative hurdle like the EEOC or the the states civil rights commission.
O.R.S 659A.870 Election of remedies. (1) Except as provided in this section, the filing of a civil action by a person in circuit court pursuant to ORS 659A.885, or in federal district court under applicable federal law, waives the right of the person to file a complaint with the Commissioner of the Bureau of Labor and Industries under ORS 659A.820 with respect to the matters alleged in the civil action...(3) If a person files a civil action alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, the filing does not constitute an election of remedies or a waiver of the right of the person to file a complaint with the commissioner under ORS 659A.820, but the commissioner shall dismiss the complaint upon the commencement of a trial in the civil action.

My advice contact an attorney well versed in the state DISCRIMINATION AGAINST PERSONS WITH DISABILITIES Law. If an attorney excepts the case you have a chance if you can not find an attorney to represent you can still file with the EEOC or Oregon civil rights commission. In the mean time file for unemployment,and seek employment.
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Re: Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Tue Sep 09, 2008 5:02 am

Joe,
I appreciate all your input & help. I didn't even realize I could file for unemployment. I have filed with the EEOC & am actively seeking employment. My greatest concern over it was that due to the nature of the business, how they are primarily funded, that the "at will" discharge wasn't used, I wouldn't want this to happen to someone else. I'm a big girl & that doesn't knock the wind out of my sails, nor had I seriously considered or even entertained the idea of a suit. I just wouldn't want someone else to go through that. As a christian based facility that counsels those with mental health issues, well I guess I just wanted it to be on record should they do it again.

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Re: Wrongful terminiation? because of a disability?!

Post  JoeC (McGruff) on Tue Sep 09, 2008 5:10 am

The "at-will" presumption was used that is the first thing employers hang their hat on. No matter what they say it always comes down to that at the end.
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Re: Wrongful terminiation? because of a disability?!

Post  bears00 on Tue Sep 09, 2008 12:54 pm

If I understand you correctly, you worked for Express Personnel, a temp service. Is that correct?
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Re: Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Tue Sep 09, 2008 4:17 pm

Express isn't only a temp agency. This was for a permanent position.

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Re: Wrongful terminiation? because of a disability?!

Post  bears00 on Tue Sep 09, 2008 5:29 pm

Was it a direct hire position, or were you temp to hire?
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Re: Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Tue Sep 09, 2008 8:32 pm

my understanding was that I was paid by Express until 100 days, I was already in the process at the company of filling out all of the paperwork. Then I was to be on the company payroll. What difference does this make? I was still asked by the company to fill out all the employee paperwork.

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Re: Wrongful terminiation? because of a disability?!

Post  bears00 on Wed Sep 10, 2008 5:10 am

happyfeet1957 wrote:What difference does this make?

LOTS OF DIFFERENCE!!! The company that you are here complaining about IS NOT YOUR EMPLOYER. Express is your employer until day 101. As such, the company that you were trying to get hired on with has only TWO legal obligations to you: to provide you with a safe and drug free work environment, no more no less.

As such, the company that you were SEEKING employment with is not obligated to provide you with any form of leave as YOU WERE NOT THEIR EMPLOYEE.

What you MAY have a case for, and this is a REALLY STRETCHING IT, disability discrimination. The Americans with Disabilities Act could apply. Bipolar disorder is a mood disorder. You stated that your medication stabilizes your moods. Because your mitigating measures (the medication) cause you to have little or no difficulty performing major life activities, you would not meet the ADA definition of "disabled." This was decided in a Supreme Court case (Sutton v. United Airlines, Inc.).

The question then shifts from an actual disability to whether or not the company "regarded" you as disabled due to your bipolar disorder. Maybe they did regard you as disabled. However, the company you were trying to get hired on with, especially in certain occupations, could make the argument that the ability to get medication that controls quality rest/restorative sleep, mood, cognition, affect, concentration, memory (I could go on and on and on here)....is a bona fide occupational qualification of the job that you were applying for. The company could also reasonably assert that the mood disorder itself is a moot issue and it would be a bona fide occupational qualification to be able to sleep, control your moods, cognitions, and affects, etc. REGARDLESS OF THE MEDICAL CONDITION OR THE MEDS TAKEN FOR IT.

But let's just say for the sake of argument that you could defeat the company's claim that the ability to obtain your meds IS NOT a bona fide occupational qualification, and they must accomodate you. The company you were seeking to be employed with could make yet another argument: that granting you time off from work would be an undue business hardship to accomodate someone who has issues getting their medication EVERY MONTH. The ADA is designed to KEEP PEOPLE IN THE WORKPLACE, not to grant them time off.

AM I MAKING ANY SENSE???
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Re: Wrongful terminiation? because of a disability?!

Post  JoeC (McGruff) on Wed Sep 10, 2008 5:46 am

I did not catch the fact that the job was through an agency that throws a wrench into things. In Oregon lawyers usually opt for the state statue, the federal courts have watered down the A.D.A substantially so that plaintiffs are losing 95% of the cases at trial.

As Bear has demonstrated there are so many variables with these types of cases, no one can say with any certainty that you have a case. If you have contacted any attorneys,and they have declined that would not be a good sign either. Good luck and keep us posted.
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Re: Wrongful terminiation? because of a disability?!

Post  happyfeet1957 on Wed Sep 10, 2008 10:06 am

My greatest concern over it was that due to the nature of the business, how they are primarily funded, that the "at will" discharge wasn't used, (thy're response to Express was I wasn't reliable) I wouldn't want this to happen to someone else. I'm a big girl & that doesn't knock the wind out of my sails, nor had I seriously considered or even entertained the idea of a suit. I just wouldn't want someone else to go through that. As a christian based facility that counsels those with mental health issues, well I guess I just wanted it to be on record should they do it again.

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Re: Wrongful terminiation? because of a disability?!

Post  JoeC (McGruff) on Wed Sep 10, 2008 1:07 pm

You where fired "at-will" . At-will just means a good reason,a bad reason or no reason at all. They gave a reason, whther it is a bad reason or good reason is subjective.
Employment at-will is a relic of 19th century anti-labor laws, gives employers the unfettered right to fire workers at any time, for any reason, whether grave or frivolous. Thats how that works.
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