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Involved in fatal accident, fired while on disability in CA California California

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  • Involved in fatal accident, fired while on disability in CA California California

    On Feb. 16, 2011 while on my way home I hit a drunk man who was trying to beat traffic. Due to the impact of the man flying through my windshield, I was rushed to the hospital in an ambulence where I had to have surgery on my hand. As a result of the injuries I sustained, I was put on disability since I had to go to rehab to relearn how to use my hand. The accident happened right across the street from my place of employment and was obviously very traumatic, so needless to say I was medically diagnosed with post traumatic stress as well.

    I submitted all of the necessary paperwork to my assistant director as well as my director. Within a week they had already brought somebody in to "help out" while I was gone. My surgeon had put me on disability from 2/17/11 - 4/16/11. However, I received a phone call from HR informing me that because I had only been employed for 9 months I did not qualify for FMLA, which was something I had never applied for. I had filed for disability which they refused to acknowledge even with all the proper paperwork. I was forced to use vacation time to make up for any additional days I would be taking off.

    On 4/5/11 just days from my return date, I received a certified letter letting me know I had been terminated since I had taken too much time off. The letter also stated that I should not set foot on the campus where I worked and that I should refrain from contacting anyone from that campus and was not allowed to retrieve any of my personal belongings even though I asked for them.

    Side note: I was never charged with anything since the investigation cleared me of any wrong doing. To say this has changed my life would be an understatement. Below is a link to the accident. I would just like to know if I have grounds to take any legal actions. Thanks so much for your time!
    Last edited by ElizabethTaylorR; 01-22-2013, 08:43 PM.

  • #2
    You were not there long enough to qualify for job protected medical leave. Your employer granted you two months of leave, which they were not obligated to do. Any claim for disability through the state (or SSDI if appropriate) would be independent of your employer and does not offer job protection. I'm not sure on what basis you think you should sue.

    If you didn't receive your personal effects, I'm not sure why you waited to long to act, but you might have a claim in small claims court if they truly refused to return the items to you. It is far from unusual to request that terminated employees not return to the office. Unfortunately, fear of a disgruntled former employer causing mayhem has caused many employers to enact such blanket policies.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Elle is right, but also there can be accommodations made so you can retrieve your stuff.

      When PTSD comes into the picture, it changes everything. The common view of PTSD is that they are unstable and a threat to everyone around. I know this as I have PTSD and it sucks how people respond. Sometimes it can be fun as well. But then, that's my sense of humor, and you're a lady, so I'll end my story there.

      I'm thinking you could talk to a lawyer or your doctor and have them contact your former employer and ask why they won't bring you back. If they still say no way, see if they aren't willing to allow you to do an escorted visit to retrieve your stuff. I think that if you get a good lawyer, he (or she) might be able to swing getting your employer to re-evaluate you. You never know until you try.
      I don't believe what I write, and neither should you. Information furnished to you is for debate purposes only, be sure to verify with your own research.
      Keep in mind that the information provided may not be worth any more than either a politician's promise or what you paid for it (nothing).
      I also may not have been either sane or sober when I wrote it down.
      Don't worry, be happy. is a good resource!


      • #4
        I'm thinking it has little to do with the PTSD diagnosis and more to do with not qualifying for FMLA and having been terminated regardless of reason. Without going into details, I can completely agree with not allowing a former employee back into the work site, no matter what their background. Safest is to have someone box up the personal effects and and ship them to the home if security isn't available to escort them at a time when the office is primarily empty.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


        • #5
          FMLA eligiblity is set by Federal law. An employee who had only worked for the employer for nine months did not qualify for FMLA. Period. No discussion. It is not up to the employer - they have to abide by the law. (BTW, OP, whether you applied for it or not, if you DID qualify for it,and if you had a condition that the employer knew was potentially qualifying, the employer is legally obligated to at least provisionally apply FMLA whether you want it or not. They can then later revoke it if it appears that it does not qualify, or if you refuse to submit the medical verification, but if that happens you become subject to the regular attendance policy. So it would behoove you to take FMLA if offered, for the future.)

          EVEN IF the poster had grounds to sue the employer for some form of discrimination, which is what it would appear she is going for, she has waited too long. If she was termed in April of 2011, the SOL to file a claim with the state ran out in April of 2012 (and the SOL to file a claim with the EEOC had already run out at that time). It is now January of 2013.

          The bell has rung.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


          • #6
            RE Involved in fatal accident

            Good luck.


            • #7

              First, the employer in your case made a typical bad mistake. Even though you weren't qualified for FMLA, you were entitled to reasonable accommodations under ADA and FEHA in a form of extended medical leave. It sounds like you had a legitimate claim for ADA violation and failure to accommodate. However, a charge of discrimination has to be filed within 1 year of your termination with DFEH or EEOC. If you didn't, the only claim you have left that can be filed after the one year deadline is wrongful termination in violation of public policy. This is one claim that you have left that can be brought in court within 2 years of your termination. Since you are about 2-3 months away from that deadline, you should contact a reputable employment attorney in you area to discuss your options.


              Last edited by cbg; 01-26-2013, 01:11 PM.
              Arkady Itkin
              Attorney at Law
              San Francisco / Sacramento / San Jose


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