Terminated While on FMLA

**hpg1971** · 05-14-2012, 01:41 AM

My question involves labor and employment law for the state of: Florida.

I had been working at my job for almost 3 years now. I suffer from Bipolar disorder diagnosed since 1993 and have been on disability in the past before my employment with this company. In March of 2012, I suffered a manic episode triggered by a rumor one of my coworkers had started that I was fired. On a Thursday, I received calls and texts from other coworkers asking me what happened and if I had really gotten fired. The following Friday I went to their Ethics and Compliance Office and asked the director what I had learned. She informed me that in Florida and at this company there has to be a reason for termination and that they give the employee time to rectify the problem that may be present. She assured me that I still had my job and that if I had never been called in by management before there was no problem. I was a good performer and had perfect attendance. I was already in a manic state by this time and was not convinced of her answer. The following Sunday I was hospitalized for my bipolar disorder. My psychiatrist put me on FMLA for 10 weeks and notified my company by fax that following Monday. I was hospitalized twice from March 18-21 and then on April 2-9 for my illness. Since I was in a manic state and could not exercise correct judgement, I was calling up the employee who started the rumor and left angry messages.

After my release from the hospital, I was served papers saying that this employee felt threatened by my messages. I had to appear in court. The judge said that he needed the testimony from my psychiatrist stating that I was not a threat to myself or anyone else. Since the woman and I work together he granted her the injunction in her favor and that I had the option to modify his decision once my psychiatrist was ready to testify on my behalf that I was bipolar and in a manic state and was not in control of my actions. Also that I was not a threat to myself or anyone else.

Two weeks later, I received a termination letter from HR stating that I willingly admitted to harrassing phone calls made to my coworker and therefore violated the company's Code of Conduct and that I was not eligible for rehire. I am still in the process of coordinating with my psychiatrist to get the injunction modified with the court. I filed a dispute with my company regarding my termination. After I have the injunction modified, I have to appear before the company's Panel Review to determine the outcome of my dispute regarding my termination.

My questions are:
1. Was the company in any violation of terminating me while on FMLA which was supposed to end on May 25, 2012?

I know I may have violated the Code of Conduct while in was in the hospital making those calls to my coworker. But I had no control over my actions since I was in a severe manic state. The judge only issued the temporary injunction until I was able to obtain my psychiatrist to testify on my behalf that I was not a threat to my coworker since I was in a manic state.

2. Does the mere fact that my coworker spread the rumor about me being fired make the workplace a hostile environment? It was that rumor which threw me into panic and fear and triggered my mania being subsequently followed by two hospitalizations.

3. What is the purpose of appearing before my company's Panel Review? Should not they have conducted this after my FMLA was over and given me a fair opportunity to defend myself before terminating me? I am not eligible for rehire so what is the point to showing up? They are requesting from me a release from my psychiatrist that I be able to participate in their Panel Review unimpaired.

4. Is this a potential wrongful termination case or do I have no recourse in their decision? Am I not protected in any way by the Americans with Disabilities Act?

Please advise. I appreciate your help in advance.

**cbg** · 05-14-2012, 06:30 AM

She informed me that in Florida and at this company there has to be a reason for termination and that they give the employee time to rectify the problem that may be present.

This is not true. There is only one state in the US where employment is not at-will; that state is not Florida; even in the single state where employment is not considered to be at-will, the at-will doctrine applies in some situations. There are exceptions to at-will, it is true. But the statement you have posted above is simply not true anywhere but Montana, and not always in Montana. (It is possible that it may be true for unemployment purposes, but not with regards to termination.)

1.) Based on what you have posted, I would say no, they are not. The FMLA statute says that you cannot be termed BECAUSE you took FMLA. However, you can be termed for reasons unrelated to the fact that you took FMLA. If you would have been fired if not on FMLA, you can be fired while on FMLA.

2.) No. The term, hostile work environment, has a very specific meaning under the law. Niether you nor she were in an HWE based on your post.

3.) Since contrary to what you were told, there IS no requirement that you be allowed to defend yourself or state your side of the story. they have no obligation to wait until you return from leave or give you any kind of forum at all. As to the reason behind it, that's a question only they can answer.

4.) I'm not seeing any wrongful term case. The ADA does not say that they have to permit behavior that they would not permit in a non-disabled employee, even if the behavior is related to the disability. If they would fire another employee who left that kind of message for a co-worker, they can fire you, and not be in violation of the ADA. Too many people think the ADA means you can't be termed for any reason that even touches a disability, and that's simply not true at all.

**hpg1971** · 05-14-2012, 07:03 AM

In my termination letter, it states that the reason I was termed was that my coworker was granted protection from the local county court from the temporary injunction the judge initially passed from my phone calls while I was manic. During my court appearance, the judge said he needed testimony from my psychiatrist (who is willing to testify on my behalf) that I was not a threat to my coworker in order to dismiss the case. The judge was not satisfied with her allegations of the so-called threats/phone calls. But gave me time to modify his decision in order to get my psychiatrist's testimony of my illness and state to make coherent decisions. If I obtain the modification, does this change anything? The so-called "threats" or phone calls to my coworker were honestly benign.
Also my company's policy is "for cause" for termination or disciplinary actions. It says so in our company's handbook.
If the initial injunction initiatiated by my co-worker was not granted, I still would have my job. Do these additional facts, change your decision? Thank you in advance.

**cbg** · 05-14-2012, 07:25 AM

That's a company policy. It's not a law. Barring a legally binding and enforceable contract or CBA that expressly says otherwise, the company may legally change, modify, amend, or completely disregard their own policies as business needs or circumstances require or suggest.

If the judge modifies the decision, it will still not make the termination illegal. It is not required that you have violated the law before you can be fired. It may or may not make getting unemployment easier - it may or may not lead the company to change their position. But regardless of what the judge does or does not do; regardless of whether the alleged threats were or were not benign; regardless of whether you made the threats while in a manic phase or not, you ABSOLUTELY CAN be legally fired for making them.

The only illegality would be if you could show clear and convincing evidence (and in this case the burden of proof would be on you) that a similarly situated employee who committed the same offense but who was not on FMLA or was not bi-polar would not have been fired.

**ESteele** · 05-14-2012, 09:14 AM

Actually, the OP would only theoretically have to establish through a lower “preponderance” level (i.e., 50.1%) of evidence, not a higher, “clear and convincing” level of evidence, that her employer treated her in a disparate fashion in terminating her for reasons related to her taking FMLA leave and/or her being disabled.

With that said, OP, you do not appear to have a viable cause of action under either the FMLA or the ADA. Based on your posts, you apparently left threatening voice mail messages for a coworker. The messages were so outrageous that a judge issued a protective order against you presumably after he or she heard them. The fact that you lost control here appears to be the salient reason you lost your job, not disparate treatment or retaliation related to FMLA or the ADA by your employer.

If your employer has an internal appeal process, you should definitely pursue it and humbly “throw yourself on the mercy of the court.” You do not have a cognizable legal claim. However, representatives of your employer may grant you grace based on your years of employment, your medical history and your coworker’s provocation. If you could convince the employer’s representatives to give you your job back (with the time off essentially constituting an unpaid suspension), you should jump for joy!

IMHO, this proposed avenue seems to be the best potential road for you to travel here. It will be a rocky, uphill and likely unproductive road for you. However, you do not appear to have any other options if you want to resume your former employment or otherwise want relief here.

By the way, you should consider stepping back from this situation for a moment in order to assess objectively your role here. While your coworker may have been a jerk, your outsized reaction to her rumor mongering caused you to lose your job and to be on the wrong side a criminal protective order proceeding. Instead of simply blaming your coworker and/or management, you should consider taking ownership for the mess you largely and unnecessarily created.

**cbg** · 05-14-2012, 09:57 AM

Perhaps I used the wrong terminology, and if so I apologize. My point, however, was that the employer would not have to prove that they would have fired the hypothetical other employee; the poster would have to prove, at least initially, that they wouldn't.