Hostile Work Environment Definition
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Is This Retaliation or Discrimination? Q & A with Derek D.

examination timeAcademy Member and book buyer Derek D. and I have been talking about how his bullying boss has gone over the line and started to infringe on Derek’s employee rights.  Of course there is a long history, with the supervisor Trent taking a dislike to Derek back when Trent was himself a machine operator.

After his promotion, Trent made comments that he was going to “clean house” and “bring in the people I want.”  That made no legal sense, however, because Derek and Trent work in a union shop and the shifts are bid on by employees based upon their seniority.

Trent didn’t like the fact that the senior employees kept bidding into the day shift that he supervised.  He wanted his own friends, who had less seniority than Derek, to bid into “his” shift.

So, what did Trent do?  He did everything in his power to make life miserable for Derek, yelling at him, staring at him or long periods of time, and scrutinizing his work for the tiniest infraction and then pouncing on it and “writing up” Derek as if it was a huge mistake.  Derek got so upset that he went on FMLA leave.

He contacted me after his return, when he was going to meet with two union representatives about what to do about Trent’s bullying.  Our exchange follows.

—–Original Message—–
From: Derek

Curt –

I spoke with you on the phone regarding my situation at work.  During our conversation you told me to keep you posted on what happened at the union meeting so here goes.  I told you that I recently returned to work from being off on FMLA for almost 8 weeks during November 2009.

I had an incident at work that did not cause damage to equipment, no one was injured, and there were no environmental issues.  My supervisor has been harassing me since I took the position on “his” shift.  When I spoke with you I told you that I would be meeting with two union stewards and the union business associate, and you gave me great information to take with to that meeting.

Well the meeting did not go as I planned, and the union seemed as though they did not want to step on any toes at my company.  You told me to tell the union that what I was experiencing was discrimination, harassment, and retaliation, and if they did not want to help me that I would contact the EEOC and Department of Labor Board of Relations.  Well they are obviously for the company because the union business associate told me that it would take a long time for the EEOC or Department of Labor Board of Relations to do anything.

Initially my company was going to give me a letter of reprimand, 18 months last chance agreement, and two days suspension.  They union did get it reduced to a letter of reprimand and two days suspension which I have yet to serve.

But here’s the thing.  The head union steward from the plant raised his voice during the meeting and told me that the company was “worried” about me and my “medicine.”  I told them that I felt that the in-house suspension I received after I returned from FMLA was retaliation.   He told me I received the suspensio because I took three samples to quality control instead of a single sample.  In my defense I told the head union steward that I did not trust my supervisor and that I took three samples to cover myself.  During the meeting the head union steward snapped at me as if he were protecting the company, and not protecting me as a union employee.

Please give me your advice on how you think I should proceed with this matter.  I still do not believe that the discipline I’m receiving is fair.  I have been told by an attorney that I should contact an employment litigator and let them know about my situation.

In the Academy you mentioned becoming a whistle blower as a protected class.  If I do that am I guaranteed that they will leave me alone?  Or will it give them another reason for me to be the target of my supervisor?   There is a situation at work that is in violation of DOT and OSHA regulations.  I just want to do what is right and fair for me without causing any tension and stress from management.

Thank you,

Derek D.

—–Original Message—–
Subject: Followup to Telephone Conversation

Derek,

If your company is worried about your “medicine” then the company MUST pay to send you to its own doctor to be evaluated.  If they don’t (and I assume they have not), then the company is REQUIRED BY LAW to accept the opinion of your doctor.

If I remember right, your own doctor did release you to work without restrictions.  Right?  But your company has not accepted your doctor’s opinion.  Instead your company supposedly “worries” about your medical condition and your medicines by treating you horribly at work and trying to push you out of a job — nit picking every little thing you do.

This is illegal retaliation, and it violates the ADA because they “perceive” you as disabled even though you are not.  Your doctor says you are fine.  Your boss says, no, I don’t believe your doctor.  THAT is disability discrimination based on perceived disability.

I suggest you do file a complaint with EEOC and see a local employment lawyer.

If you don’t know any lawyers in the area, try searching www.AVVO.com; that site allows you to search for employment lawyers in your specific geographical area.

Curt

p.s. Would you mind if I used this email as a Q&A for my podcast or a written post on my site?  I would of course remove your name and any reference to the type of machine you operate.  I could even say you are in some other state (like Texas).  Let me know if that’s okay.  I just think there are probably others going through this same thing who could learn and be encouraged by your example. -Curt

——————————

Curt –

Thank you for responding to my e-mail.  I appreciate any and all the help and direction you can give me.

Actually, I was only seen by the company doctor and was released to go back to work by him as well as my doctor.

Do you suggest that I have an attorney file a complaint with the EEOC or am I able to proceed with that on my own?

Also, you did not touch on the whistle blower issue that I mentioned below.  Do you think I should proceed with that or no?

You are more than welcome to use my e-mail and story as a Q&A or as a written post.  By all means, please change my name and the state I live in.

Once again, thank you for all of your help.

Derek D., City of Industry, California

—————————————————-

Wow, Derek, if the *company* doctor released you, *and* your own doctor released you, then the company is so, so in the wrong.  It’s almost amazing how ignorant of the law they are.

Your case is a strong one, so you may be able to have a local attorney take your case on contingency.  If no, or that doesn’t interest you (the attorney takes 1/3), then you can do these things on your own.

Also, Mary, the “Undercover HR Director”, is preparing EEOC complaints for members of the community (at $50 per hour, and it’s probably a 10 hour project).

Regarding the OSHA complaint, I would file that after filing your EEOC complaint.  Unless you think they are about to try to fire you.  Then file it immediately.  It’s like a card you can keep in your back pocket and play when you need it most.

Thanks for permission to write about your situation.  And I will absolutely change identifying information.

Sincerely Yours,

Curt

—————–

By way of follow up, Derek has claims for FMLA retaliation, for perceived disability under the ADA, and for failure to accommodate.  He has excellent evidence of these things because his union representative was told by the company that the company was worried about Derek and his “medicines”.

The company should be listening to it’s own doctor.  Instead the company is ignoring the doctors and trying to push Derek out of his job based on conditions that two doctors say he does not have.

This is a very good example of one way companies get themselves into trouble, and their bullying ways come back to bite them.

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