This is a copy of the post I wrote under the wrongful termination forum. It seemed it was appropriate here also. Thanks.

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I was recently terminated by my employer (the State of Arizona - Department of Health Services). I was employed as a health care facility surveyor. They stated that under the rules they did not have to give a reason for termination because I was within the 1 year probationary period.

I went out on disability for an illness and was put on continous oxygen. I spoke with my direct supervisor and my training supervisor on multiple occasions while I was out (2-3 times a week). During these conversations they expressed (esp. my training supervisor) that she was concerned about me having to come back to work on oxygen. She stated, "it just doesn't look right" and "what will facilities think". She told me that, "I really could not come back to work if I was going to be on oxygen". When I asked her what she meant about "what would facilities think", she said that facilities might think that they would need to accomodate me and provide oxygen and they would be calling our office upset. I explained to her that I should be able to be off of the oxygen when I return to work as planned the first week of November and reassured her that the oxygen would not be an issue.

Last week I went into the office to get a few of my personal belongings out of my desk (I had my small portable oxygen unit on and was carrying it). I spoke with the training supervisor and told her I was still planning on returning in November. She again expressed concern about the oxygen and I told her I would be off of it by then.

A couple days ago I recieved a letter stating I was terminated and because I was a probationary employee they did not need to give a reason. I spoke with my direct supervisor (who was on vacation at the time and said she did not sign the termination) and she stated that there were no problems at all with my performance and that she thought I was a great match for my position. She said we had worked out that I would not be on oxygen so she does not know why I was terminated while she was out.

I spoke with the training supervisor and she said she could not be sure that I would not be on oxygen when I came back, but that they did not have to give a reason for the termination.

She confirmed that the office still had 2 positions (health care surveyor) open the day that I was terminated. Therefore, they cannot claim that my being out on leave was causing an undue hardship.

Is there anything I can do about this situation? I would really prefer to have my job back, but I am afraid of retailiation if I make an issue. What are my rights? Who should I contact?

Thank you sincerely for your time.

Is your use of oxygen related to a disability (not just as a temporary illness)? If so, you may be entitled to protection under the Americans With Disability Act, regardless of whether you are in a probationary period or not. You can read more about disability discrimination at: http://www.eeoc.gov/types/ada.html

While your employer may have a justifiable business reason for terminating you, rather than terminating you for your use of oxygen, filing a complaint against them will require them to explain the reason for the termination to the US. They will be in the position of defending their actions. You will, at least, learn of the reason for why they let you go.

Let me know if you have any other questions.

I have read the criteria and I do meet the qualifications of being protected under the ADA.

I was determined disabled by the social security disability determination office.

This is a duplicate of my reply in the other forum...

I read online that a state employee cannot make a claim for monetary damages even if the state is found to have violated the ADA.

If I seek relief in the form of getting my job back (which I would like), how can I be protected against retaliation?

Could they not just give me my job back and then terminate me in a short time saying it is related to performance or make up a reason?

It is illegal to retaliate against a person filing a claim under ADA. I quote from the EEOC's website, "It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA."

While you can always be terminated for performance issue, I'm sure that the state will be extra careful in ensuring that you are treated fairly. If I were you, I'm move forward.

Thanks for the discussion.

I spoke with a couple of attorneys from the Arizona Center for Disability Law. They were also very helpful. They are going to accompany me down to the EEOC to file a charge if I don't hear back from my department head by Friday.

They suggested that I have a pretty good case. I had kept a written record of the interactions and also audio taped the discriminatory statements.

They also indicated that although I was technically a state employee, my particular department is for the most part (70% I believe) Federally funded. She said in that case they are exempt in many cases and there is a way around the Supreme Court ruling that prohibits monetary awards for state workers.

She said I could also find a private attorney that would probably take the case. However they too were willing to help me.

Just thought I would post what happened so far, in case it might be beneficial to others in the same or similar situation. Thanks again for your time and information.

Thanks for the update. Please keep us informed.

Thanks for your help on this forum.

I spoke with my department head and summarized the situation for her. I explained that I was going to give them a chance at calling this whole situation "a terrible miscommunication", before I filed a charge with the EEOC.

The next week they conference called and said it was in fact a miscommunication. ;) They stated that I would be reinstated with no lapse in employment and the termination would not be reflected in my employee record. :)

However, this week I recieved a letter stating they would like me to sign a medical release of info, prior to my return to work. This release is general to all medical providers and all inclusive for them to release any and all medical information to my employer.

Are they legally allowed to require me to sign such a form giving them open access to all my medical information???

Especially if I am not asking for an accomodation other than the leave time (which was certified as necessary by my medical doctor on the short term disability form).

Thanks.

Congratulations! This is great news.

They cannot and should not get a copy of your medical records. On the other hand, they have the right to receive documentation that you are able to perform your work with an accommodation AND they can require that your doctor let them know of the restrictions that you are under. So, they can receive information such as, "XXX is released to work, with the following restrictions: he/she cannot lift more than 20 pounds, he/she must be able to sit down for 10 minutes every hour, etc.

Let me know if you have any other questions.