discipline for medically certified use of sick days

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szuke2000

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I would like to find out what kind of legal claim I might have, if any, due to age or disability discrimination. I have worked for a major school district for 27 years and I am 58 years old. I have never been subject to discipline for any reason, have never received an unsatisfactory rating, and have never been found to have excessive absence.

Last year, due to developing health problems, I was sick 8 days in the spring term. I received a "letter in file" saying that such absence was "excessive" and warning me of future disciplinary action. Each absence was medically certified, and I had over 40 sick days in my sick bank.

This year, due to a continuance of a particular medical problem, I needed urgent surgery and was out for 20 days for this surgery. I had 49 days in my sick bank. Then I had to be out an additional 6 days for follow-up. All the days were medically certified.

I was called to a "disciplinary hearing" by my employer where they asked for a penalty of 3 months salary and a "final warning". The decision is to be made by an arbitrator and is binding. I have not yet received the decision.

The particular medical problem which caused my absence was diagnosed only in April 2009. It is a continuing issue for which I was granted a "reasonable accomodation" (a transfer) from my own school district this month (June).

Can an arbitrator legitimately discipline an employee for using accrued sick days when the use of those sick days have been shown to have been used legitimately? By the very fact that the school district allowed this case to come to arbitration, I am very worried about the outcome of this arbitration.

Other pertinent information is that I am a senior teacher at the top of the school district's pay scale, and two years ago, I was a union shop steward.

Furthermore, the principal of the school who initiated this hearing, has made clear that she does not want me at the school through a number of comments and actions over the past several years. The principal made clear her hostility to the union during the year I was shop steward and beyond.

I'd like to know what kind of legal recourse I might have given the above circumstances.

Thanks
 
I take it you have some kind of contract with an arbitration feature. If this case went to an arbitrator, and the arbitrator ruled in the districts favor, it is more than likely a settled matter. Unless the arbitrator over looked a particular point of law there is little chance of getting it before a judge.

You could contact a labor law attorney to see if he could move it. What is the Unions position on the decision? Some Unions will take an unfavorable arbitration decision and move it to court if they see cause, as general rule it is not usually done unless the union sees a decision that is so unfavorable it effect the entire bargaining unit. It sound like this decision may well do that given your post, so if there is a union involved start talking to the higher ups.

You can also talk to an employment attorney for a possible violation of the ADA or state equivalent, possible age discrimination well.
 
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You might also want to speak the the US DOL about a potential FMLA violation.
 
Oh good point cbg. FMLA is a remedial statute so if FMLA rights have been denied an attorney can file suit in federal court so judges and juries can hold employers accountable so agency action is not required as it would be an ADA or age discrimination suit. The remedies under the FMLA include the voiding of any discrimination or discipline, double damages for lost wages and benefits, and attorney fees and costs. And a worker can file suit not only on behalf of himself but also on behalf of all his fellow workers in order to stop the employer from continuing to violate the FMLA.

That on top of a possible age,and disability suite would be a very powerful weapon.
 
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