Update: 9/16/12: A reader asked, “Can a person on Dialysis be laid off?” Here’s the answer: Yes. However, if you are like me and were included in a “layoff” as I was, that doesn’t mean it was legal or just. In my case, there was a seasonal “layoff” when the second shift people typically get laid off for the seasonal slowdown around the winter holidays. These people are brought back in the spring. However, an ambitious CFO (new to the company) figured it was a good time to fatten up the bottom-line and include some people, like me, who had severe medical problems so were absent a lot and also making large salaries. So, although I was included in a layoff, the EEOC decided I have a good case of medical disability discrimination, age discrimination, and denial of benefits and is pursuing the case. So, if you are laid-off and are a dialysis patient, document everything and contact the EEOC immediately. I waited a few months thinking I could negotiate with the company and, in retrospect I shouldn’t have delayed. See my posting “Success! First one anyway…” about the follow up with the EEOC. But read this first since it discusses some important information about filing the case with the EEOC.
This posting is a continuation of the posting “CKD and Your Job Part 1“. I’m titling this “Dialysis and Your Job Part 2” since it was no longer an issue of CKD. This is a few years later, I now have ESRD (kidney failure) and am on dialysis. I had been working for this company since 2007. I went into dialysis in 2008. I was the oldest person (chronologically) in the IT department and was the middle hire of the three programmers. The most recent hire was in late 2009. Of the three, I was the only person in the IT department who was laid off. I was also the most experienced programmer with over 30 years experience.
I got “laid off” in November 2011. I hesitate to call it a lay off. Of the 250 people working for this manufacturer, 6 people were laid off. The company tried to make it appear like an austerity measure but 6 people out of 250? Hardly. Also, three of those in the “layoff”were second shift workers who are usually laid off at that time of year for seasonal slowdown. The other three (including me) were over the age of 40 and had medical problems.
After I got “laid off”, I tried to negotiate by myself with the company to better their Severance Offer. They offered two months pay if I would sign an “I won’t sue you” agreement. I countered with 1o more months of pay or reinstate me and let me go out on Disability for which I’d been eligible since 2008 when I started dialysis. They rejected the extra 10 months as I figured they would. The HR Manager said he ask the Disability Insurance provider about my other idea. He never told me what they said.
If I had been allowed to go out on Disability Insurance, I would have received 60 percent of my last annual salary indefinitely. That would have been a living wage. In fact, I had talked to HR a year before about doing this since it was becoming more and more difficult for me to work and do dialysis. My eyes had been giving me problems and I was scheduled for surgery the week after my termination. I was awaiting the results of that to make my decision about disability. I never had the chance to exercise that option.
In February 2012, after giving the negotiations a couple months to play out, I researched filing a complaint with the EEOC (Equal Employment Opportunities Commission). They are the federal agency responsible for protecting citizens from employment discrimination under the Americans with Disabilities Act (ADA) and for Age Discrimination (ADEA). I felt I was being subject to both forms of discrimination. I finally located the EEOC intake questionnaire that was a necessary part of the complaint. This is a form that needs to be filled out with the essentials of the complaint such as the company name, address, contacts, etc. I carefully filled it out , copied it and proceeded to the complaint.
The actual complaint is a detailed description of the specific complaints against the company. I complained about the company discriminating against me for my kidney failure and their lack of “reasonable accommodation” for my dialysis. You see, an employer has to make a reasonable accommodation for people with disabilities. They have to work with you so that you can do your job. I needed to leave work early three days a week for dialysis. They obviously didn’t like that. I needed time to recover from my treatment sessions and to deal with problems due to kidney failure and medications that gave me digestive problems and other side-effects. They didn’t like to do that. I needed a handicapped parking space. They did that but I’m sure people resented it because it was in the “manager’s and supervisor’s parking area” and that pissed people off because I wasn’t a manager or supervisor and my parking space was closer to the door than theirs.
Along with my disability, they discriminated against me because of my age. People over 40 are protected from discrimination because of their age. In my complaint, I noted that all the professional employee in the “lay off” were over 40. The hourly employees were all second shift people but the administrative, salaried people, like me, were all over 40. Frankly, I’m shocked that the very experienced HR person allowed this to happen but I believe he was overruled by the CFO who simply wanted to fatten up the bottom line to protect his job. The company had seen some lean times and was complaining of decreased profits. But in my position, I was aware that this didn’t stop them from paying out larger bonuses to the owners that year. I was the programmer that revised the Bonus Report to allow more digits in the columns because their bonuses had increased by a factor of 10! So, all the chatter and complaining about reduced revenue didn’t seem to effect their Bonuses except for the better. They were cutting back on expenses but not themselves.
I packaged up all the documents (the complaint, the intake questionnaire, and some exhibits) and mailed it to the EEOC office for my area of the US. Then I waited.
After four months of not hearing a thing from the EEOC, I called. I left a voice mail asking that they let me know if they received the complaint. It took a couple voice mails over a couple weeks before I got a call back. I got a call from the regional EEOC office and was told they got the package. (I really should have sent it registered mail.) Anyway, it took until the middle of June, four months, before I received a letter from the EEOC that they’d received the complaint and I got a case number. Four months just to acknowledge the complaint!
Then a couple weeks later I got another letter. I opened it excitedly thinking it might be something about meeting to discuss the case. There was no letter, just a blank copy of an intake questionnaire with the case worker’s name written at the top. I called her and wrote a letter asking what she wanted me to do with the questionnaire and reminding her that I’d already filled one out with the packet I’d submitted in February. I got a form letter a couple weeks acknowledging my letter and letting me know they would reply in 60 to 90 days with an answer to my question. The case worker returned my call on the Saturday I was attending the ESRD Network conference on June 29th. The message was that she “was [her name] from the EEOC returning someone’s call and you can call me back at [her number]”. She didn’t even know who she was calling! Anyway, at least I had her direct phone number. I called and left a voice mail. It’s been another 30+ days and still no reply.
I contacted a couple attorneys about my case. Finding an attorney to represent the employee in a case like this is not easy. They want to work on the corporate side as it pays better. One I contacted wanted a three thousand dollar retainer and 30 percent of the settlement amount. If that settlement was my requested reinstatement so I could get disability, it would be 30 percent of the first year total payments. If I could afford that much, I wouldn’t need to file a complaint! I’m still seeking an attorney to work with. I know I’ll find him/her, it’s just a matter of time.
Operating on hope, I called and left another voice mail for the EEOC Case worker. I guess I’ll have to start calling her once a week. I also found another attorney this week and have an appointment with him next Thursday. He want $75 to meet for one hour to discuss the case. I figure it’s worth it. I’ll let you know how it goes.
© 2012 DevonTexas