Q: I WAS diagnosed with early stage cancer a few weeks ago. I can still do my job but I will need about 5 hours off from work every week for 3 months for medical treatments. I asked my manager for intermittent leave. When he refused, I emailed him information from the Labor Commissioner’s office regarding my leave rights. My manager got mad and refused to talk to me. Yesterday, I was fired for poor performance but it wasn’t explained what I did wrong. I worked for this company for 10 years and my evaluation has always been “above expectations.” Is my firing legal?
A: Your firing may be illegal, even though the employer said it was due to poor performance. The firing seems suspicious given the close proximity between the firing, and the time that you asked for intermittent leave. Here, it is worth investigating to determine if your former manager was motivated by a discriminatory reason (your medical condition) that is being covered up with a purported business reason instead.
An employer may not terminate an employee for discriminatory or retaliatory reasons. Doing so may give rise to a wrongful termination claim. In order to skirt around the law, the employer may claim that it had a legitimate, non-discriminatory reason for firing the employee (such as poor performance or customer complaints). It is then up to the employee to prove that the employer’s stated reason for the firing was a “pretext.” To prove pretext, the employee may show that the stated reason:
– is false,
– did not cause the firing, or
– is not enough to cause a firing (i.e., people are not usually fired for this reason)
Aside from discrimination, an employer may also be retaliating against an employee who tried to assert the right to take a medical leave. In order to prevail on a retaliation claim, an employee must prove that:
1) The employee engaged in protected activity, such as reporting a violation, testifying as a witness, or asserting a legal right.
2) The employer knew that the employee engaged in such protected activity.
3) The employee suffered an adverse employment action, such a demotion or termination
4) The employee’s protected activity caused the employer to take adverse action. Unlawful retaliation may be inferred from timing, especially if the firing occurred soon after the employer learned about the protected activity.
Discrimination and retaliation may go hand in hand. Consider a recent case reported by the Daily Journal:
David Rubalcaba worked for Albertson’s grocery store for over three decades. By all accounts, he was a model employee. Unfortunately, he was diagnosed with a brain tumor. He asked the employer for accommodation so he can deal with his medical condition. Rubalcaba alleged that the employer failed to engage him in an interactive process to determine if his request for accommodation can be granted. Rubalcaba asserted his right to be accommodated. Instead, the employer fired him for supposedly taking home three wooden boxes that the manager had previously told him to throw away.
Rubalcaba sued the employer for disability discrimination and retaliation. The case went to trial and the jury found in favor of the employee, awarding him $1,242,125 in damages.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant recoveries for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently Aselected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.
