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  1. #1

    Default Retaliation for Filing Discrimination Complaint

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

    It all started once I told my supervisor about my medical condition and placed them on notice for FMLA. I got the runaround; from ignoring my inquires about FMLA to flat out denying me the FMLA when I was eligible. They would assign me toanother department but wrote me up for performance when I didn't complete the duties of my regular department. I would follow the acceptable procedures as outlined by the company and my supervisor would instruct me to do something different and write me up for misconduct when I followed his instructions (which I have via email to prove it).

    After dealing with this for months, I filed a complaint with my employer against my supervisor for discrimination based on my disability and FMLA; the manager and HR rep was also listed in this complaint because they knew what was going on and allowed my supervisor to continue his actions. It took them 10 days to acknowledge the letter and only did so because I sent a follow-up email after not hearing from them. It took them a total of 18 days to call me into the office to ask some questions about the complaint. During this time, my supervisor wasn't suspended pending an investigation nor were we separated as I was still required to report to him. Also, the HR rep that was listed in the complaint was so the one conducting the investigation.

    A month after filing my complaint, an employee (that has nothing to do with the complaint I filed) went to HR alleged that I said a swear word towards her such as saying "shut the **** up" or something along the lines. They called me in the office within a week to question me about his. I had no problem with this as investigating is their job. I denied using such a phrase to this employee. They go on to tell me that I am being suspended in order to separate this employee and I and pending an investigation.

    I found this odd for a few reasons: 1.) I have nothing in my file for such behavior prior to this alleged incident. If there was prior history and they suspended me I would understand. 2.) my supervisor who was alleged to have discriminated against me wasn't suspended nor were we separate when discrimination is a serious issue when in light and compared to saying a swear word.

    Suspension should be used for things like threatening, physical violence, sabotaging, discrimination, harassment, when you feel an employee might hamper an investigation by destroying evidence, lewd behavior, theft, and other serious misconduct.

    I didn't argue with them when they mentioned it. They tell me that my suspension is paid if I am able to return back to work but my suspension is unpaid if I am terminated. I was told that an investigation will be conducted and nothing has been determined as of yet. That all went out the window when the meeting concluded I was told that security has checked and cleared out my locker and my stuff is waiting at the front desk. If no determination has been made why have my locker cleared out?

    The suspension for saying a swear word is going on 5 days and counting and no word as of yet from anyone. I firmly believe this is in retaliation for filing the discrimination complaint. The discipline seems to be out of line and disproportionate considering the factors.

    Am I missing something here? Maybe I am looking at it wrong?

  2. #2
    Join Date
    Oct 2014

    Default Re: Retaliation for Filing Discrimination Complaint

    Were you ultimately allowed the FMLA leave that you requested? Aside from the company giving you the run around on your complaints, the conflicting assignments, and the write ups for alleged performance issues have you suffered any other problems from the employer after you requested the FMLA leave? In particular, have you suffered any problems that cost you money or status, like reduction in pay, demotion, reduction in hours, etc?

    I'll note a couple of things here that really do not come into play with a retaliation claim. First, the company has no obligation to fire your supervisor, suspend him, reassign him, or take any other disciplinary action action him as a result of your allegations, even if the allegations are found by the company to be credible. The company's obligation here is to make sure that the retaliation and discrimination cease. If the company can do that with simply talking to the supervisor then it has solved that problem. Second, the employer does not have to handle the investigation of the other employee's complaint against you in any particular way. Indeed, the company doesn't have to investigate it at all if it doesn't want to. What will matter is that the employer does not illegally discriminate against you as result of the complaint. For example, if the company treats you worse in this situation than it would another employee in the same situation and the reason for the different treatment is your race, color, national origin, sex, religion, etc then that is of course illegal.

    It looks like the company may be set to terminate you. If that termination is because of the other employee's complaint or because of performance issues then there isn't any recourse for that. If the termination is because of you exercising your rights under the FMLA or because of your disability that would be illegal and give you a wrongful discharge claim. The problem is proving that the reason for the termination was illegal. That is often hard to do absent some "smoking gun" evidence like a statement from the employer stating that was reason or being able to show some kind of pattern of illegal retaliation or discrimination by the employer.

    However, I don't know all the details of your situation and what evidence you have to support it. If you get terminated you ought to at least consult one, and perhaps several, attorneys who litigate wrongful discharge claims to see if you have something worth pursuing. Most will give you a free initial consultation. So you have nothing to lose by talking with a few of them. Note that you do not want to wait too long, you have at most 300 days from the discriminating event to file a complaint with the EEOC for a claim of illegal discrimination and you must file a timely complaint with the EEOC before you may sue the employer under federal for illegal discrimination.

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