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
Devon-I think that you’ll find that federal complaints will take years to complete, so don’t expect any closure withing, say, the next 2-3 years. If you were living in a state that had stronger employee laws (like my state, NY), you would find an absolute plethora of attorneys waiting and willing to take your case into state court. If I were you, I’d give the EEOC another 6 months before I put down any retainer fee. If you DO decide to go with a private attorney, you will quickly find that a fairly large lawsuit will be your only real option. If you were to ask for forced reinstatement, you will always be considered suspect. Better to just go for the cash, accept that you’ll never get hired by anybody else again, and go forward to make a life of your own with the settlement.
Thanks for that info. I’m only asking for “reinstatement” so I can go out on Disability Insurance. I don’t plan to actually return there. Just on paper until I can go out on disability. It’s that or a VERY large settlement in cash.
When you are already dealing with a health problem, the last thing you need is the stress of having deal with incompetent bureaucrats and cut throat corporate types. Consider this a big hug. Although I can’t give you any worthwhile advice I do wish you the best of luck,
Well you have a good point there! LOL “That which does not kill me, makes me stronger” comes to mind. Thanks for reading the post and visiting my blog.
Dialysis is trawmatizing enough without added issues. Good luck and stay blessed.
DevonTexas, HANG IN THERE!!! I am amazed – I could have written this story myself because it is almost exactly what I went through. I was a salaried employee that was ‘moved’ to hourly because of dialysis. I wish you the best of luck on your case!! Please update.
I’m a few years later. I successfully sued the employer with mediation from EEOC. I want my fellow patients to know that they must take a preCautionary stand when they are diagnosed with CKD and ESRD. Too often employers will take advantage of you, unaware that they are violating federal protections.
I know it has been a few years since your case. I sure hope you are feeling better! It makes me proud to hear you got a settlement out of this mess! WOW! You deserve every penny! Good for you. People like you who are active and progressive pursuing what is fair, right, and just, – inspire me and give me hope!! Which is a light at the end of a very long, very dark tunnel. Thank you so much for creating your blog. Your info helps many others going through the same situation. Dialysis is so hard to manage and feel good (or just normal- (whats that? hahaha ) on a daily basis. No one understands the ups and downs of ESRD except for another patient! I have found the most helpful, useful, immediate info amongst support groups made up of only kidney patients. May more support, information, copying skills, useful practical tips, advice, than any doctor or nurse x10! If I followed my doctors treatment plans perfectly, I would definitely be dead by now. Instead I listened to my intuition/body and my fellow kidney friends, and I live another day. That info from other kidney patients is so incredibly valuable. I encourage you to join a patient support group. If you have none, perhaps start one. It could even be online. San diego has One group, but it is run by physicians. Many patients here are hispanic or Philipino/asian where they don’t speak english and culturally they normally dont talk publicly about getting emotional support. Therapy is taboo, culturally, and should only be contained within their family. Self help group leaders had a difficult time getting patients to be involved.
RE; Jobs, As far as finances and employment, I have had similar problems such as yours. And let me tell you, GOOD FOR YOU!! You keep fighting the good fight! We dialysis patients have to fight 10x as hard to get basic just simple benefits. I am so sick of it! My brief bio; I was 28 and just graduating from a top notch radiology school in 2008 when I went on dialysis. I had no clue my kidneys died (autoimmune disease). I was doing a clinical internship at 4 major hospitals when I had to go to the ER. I couldn’t breath, noxious, flu like symptoms, always sleeping, hot pee, swollen waist, eyes, feet. I was soooo sick, I had one more day to live. I was totally blind sighted! After diagnosis, I did hemo 3 times a week, but I did pass my board exams and got my licenses right after. By the skin of my teeth! However…. LOL When it was time to start my career…. Word got around that I was on dialysis.I had to get tests done at the very hospital I interned at. That was awkward and embarrassing. My co-workers treated me as if I just got aids or leprosy. Its like night and day. Friends and co-workers one day, strangers who avoid you the next. People treated me like I was infectious! Hospital professionals! So everyone knew how sick I was. The employer who I thought were my friends who also guaranteed me a job before, wouldn’t even grant me an interview! My former boss never even retuned my calls. I remember once I went in person to my managers office to try to catch him in person, and he saw me and closed the office door and locked itI was definitely shunned, ostracized, stigmatized, and endured constant judgement. My past managers became nervous when I asked them about my future employment. Instead, they hired out of state travel techs that they had never even met! Travel techs get paid 30% more than local employees. When I asked why? I got BS answers, like they “aren’t hiring for a while”. I couldn’t even get a graveyard per diem shift. I even offered to volunteer and work for free to keep my skills active. Yep once employers find out that your on dialysis, just forget it! they avoid you like the plague! All of that education was wasted, down the drain, and I still owe 15k in student loans. Im paying it off at 300$ a month (no doctor wants to sign off on a student loan forgiveness policy from the gov. I’ve tried many different doctors). And living on SSDI at 12k a year in San Diego, just ain’t cutting the mustard. It’s a complete joke! Maybe if I lived in Appalachia, I could rent a 1 bedroom apartment. I ended up moving in with my parents in a tiny cluttery mobile home, where they fought constantly, I slept on the floor for 4 years.I lost my beautiful apartment, car, health insurance, 401K, my dignity, and self esteem. I mean the travesty got on and on. Point is, employers see us as a LIABILITY. They don’t even want to deal with you. Its cost prohibitive. And well a hospital is a business. Even the Interventional Radiologist wouldn’t hire me when he said he would before KF. It is very illegal to discriminate against disabled people, but the can and they definitely will! Now I have gotten to the point where I don’t disclose my medical info to anyone.I feel as though I have to lie, to get hired. I dont like doing that, but it is survival! No one will hire me if they know im on dialysis. And when they do find out, management will find many ways to pick on you, micromanage your every move and look for ways to get rid of you. Its totally illegal but they do it all the time! I might as well be a homeless drug addict. Because thats the way Im discriminated against. After I get hired Im sure the info will come out eventually, but it is no ones business. Im 38, on hemodialysis still, waiting almost 6 years on the list. I have no savings for retirement, and I had to let my license expire since I could not keep up with my practice. Plus every year my liscences cost 800$ to upkeep.I should be making 125K by now, but I am living in total poverty. $12k a year and I have a masters degree from a fantastic university that I can’t use because of being on dialysis. I need to make 200$ stretch every month after bills. Anyway, my point being, I very much feel your pain! I am just so sick of corporate assholes padding their pocket! Fresenius grossed 3.9 BILLION in 2016. Its just sickening. I am sooo glad you sued! Yes! Keep on fighting! I was angry reading the top two commenters discouraging you and telling you to just wait. NO! you keep bugging them and never feel badly! No one knows what we go through every other day for weeks! Months! Years! no vacations, holidays, time off… It is total hell. I mean I am grateful to be alive, but the quality of life I have is absolute hell. You now the deal. Thanks for sharing your story and keep on fighting for dialysis patients rights. You have a friend in me, and plenty of support from other people. The squeaky wheel definitely gets the oil! Keep on squeaking! I’m right there with you!