Best Ohio Disability Discrimination Lawyer and Top FMLA Attorney Answer: I think my boss is retaliating against me because I’m disabled, how do I prove it? How do I sue for wrongful termination? Can my company fire me because I asked for a disability accommodation and FMLA leave?
Retaliation is a word we frequently hear in our employment law lawyers office and outside of its doors. Many employees will tell us they are being “retaliated against” or our friends will complain about retaliation over wine and cheese at dinner. Even our kids stomp their feet when they feel like we are retaliating against them by sending them to bed early for failing to make their bed or clean up their toys. In the context of employment law, retaliation has a very specific meaning, one that separates unfair treatment from unlawful conduct. For example, what if I ask for accommodations for my medical condition, but it turns out I’m not disabled?
This is the same question posed to the Sixth Circuit Court of Appeals (Ohio) in Hurtt v. International Services, Inc., where the employee Robert Hurtt (no pun intended) was “hurting” from a medical condition and needed to take Family and Medical Leave Act (“FMLA“) time to address the health issue. Hurtt was a traveling salesman who suffered from various health issues due to his grueling schedule and requested FMLA leave along with a modified work schedule of that would allow a reasonable amount of sleep:
have held that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” Talley, 542 F.3d at 1109 (internal quotation marks and citation omitted). Hurtt testified in his deposition that he repeatedly requested an accommodation of eight hours of sleep per night during his travel due to his documented medical needs. (Hurtt Dep., 88-89, 143, 147, 211-12, Pg ID 1096-97, 1110-1111, 1127). And the record shows that ISI failed to accommodate, or even discuss with Hurtt any resolution to his request.
Even more specifically, his boss told Hurtt that he should “get your dick out… and toughen up.” Soon thereafter Hurtt was diagnosed with anxiety and depression and forced to quit his job at ISI. One of the questions presented to the Sixth Circuit on appeal was whether or not Hurtt had a retaliation claim even if his medical condition did not qualify as a disability under the ADA at the time of his discharge and merely made a request for a possible ADA accommodation. The Sixth Circuit answered: “We have held that requests for accommodation are protected acts. See A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013) (‘Both this circuit and most others agree that requests for accommodation are protected acts.’). Indeed, there is retaliation even if there is just a request for accommodation and held the following:
[T]he pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations. See Baker v. Windsor Republic Doors, 414 F. App’x 764, 777 n.8 (6th Cir. 2011) (“[T]he protected act is the showing of a good-faith request for reasonable accommodations.”); see also Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3rd Cir. 1997) (“An individual who is adjudged not to be a `qualified individual with a disability’ may still pursue a retaliation claim under the ADA.”). We hold that he did.
The court’s holding is basic common sense. The ADA statute protects employees from discrimination if they suffer from what they reasonably believe is a disability and it is known by the employer or if the employer believes and/or perceives they are disabled. It would be easy for employers to get away with unlawful conduct if they could just show at the end of the day that even though the employee requested an accommodation, they are not disabled and firing them for the request would not circumvent the ADA.
Turning to the FMLA interference claim, the employer argued that because it approved the FMLA, the employee could not pursue this claim as a matter of law. The Sixth Circuit Court of Appeals struck this employer’s argument down as well:
While “[t]he [ultimate] issue is simply whether the employer provided its employee the entitlements set forth in the FMLA,” Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir. 2006), we also have stated that “`interfering with’ the exercise of an employee’s rights under the FMLA includes `discouraging an employee from using [FMLA] leave.’” Arban, 345 F.3d at 402 (quoting 29 C.F.R. § 825.220(b)).
Contrary to ISI’s assertions, the fact that ISI did not literally interfere with Hurtt’s FMLA leave (i.e., by denying it, requesting he report to work, or complete work-related tasks) does not impede Hurtt’s claim of FMLA interference. By engaging in an act that would discourage Hurtt from using his FMLA leave, ISI could be liable under a claim for FMLA interference.
Employees must understand that FMLA retaliation and disability discrimination claims under the ADA claims are tricky and hard for non-employment lawyers to handle on their own. Heck, even the trial judge in the United States District Court for the Eastern Michigan District got it wrong the first time around.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being discriminated against because of your disability or a request for an accommodation at work, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your disability and medical needs, let our employment law attorneys focus on your medical leave and disability rights.
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