Best Ohio Age Discrimination Lawyer Reply: Can I make my former employer pay my legal fees? How much does an employment attorney charge? Can my company fire older employees to reduce health insurance costs?
Our employment law attorneys get asked these same questions by our clients on a daily basis. Our employment law lawyers understand that many of our clients have recently lost their jobs, and since they are coming to see us, they were likely fired (If you think you are facing employment discrimination, give us a call before you get wrongfully fired!). This means they may be struggling to pay for their rent and their bills, maybe even for food. They certainly do not have the extra money laying around to pay for an attorney.
Most employment lawyers in Ohio will require you to pay at least some form of retainer and hourly rate. Some of these other employment discrimination lawyers will even charge you a few hundred bucks just so that you can come in and tell them about how your boss committed race or gender discrimination, or about how your manager sexually harassed you. Not our attorneys!
Our employment lawyers take most cases on a contingency fee basis. This means the employee pays nothing up-front. We do not get paid until you get paid. And in some cases, you may be entitled to attorneys fees, so you end up with more in your pocket.
A recent illustration of employers may be liable for the employee’s attorneys’ fees is Tramp v. Associated Underwriters, Inc., from the United States District Court, District of Nebraska. In Tramp, the employee, Marjorie Tramp, who was over 65 years old, sued her former employer under the Age Discrimination in Employment Act (“ADEA“). In Ohio, age discrimination is also against the law under Ohio R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14. Associated Underwriters hired Tramp in 2000. In August 2007, the company was sold and new owners came in. In an effort to reduce costs, the new bosses sought to reduce health care coverage.
Emails between Gurbacki [one of the managers] and the insurance company during that time frame reveal conversations concerning rate discussions specifically as they related to the health and age of the employees at Associated Underwriters. For example, Gurbacki asked their provider to “relook” at their rates, specifically noting that two employees over the age of 50 had left the company. Later, Gurbacki updated the demographic information by sending an email stating, “We have now lost Sue Witchell and Gayla [M]artin as well,” at least one of whom was likewise an older employee. Finally, Gurbacki made it clear that Associated Underwriters was seeking other bids for insurance and reiterated “[w]e have lost several of the older, sicker employees and should have some consideration on this.”
Tramp, who was one of the older employees, starting receiving disciplinary warnings in October 2008 for poor performance. In February of 2009, the employer did another reduction in force and laid off four employees, including Tramp. The other three employees that were fired the reduction in force were Barb Treadway, who was 72 years old; Stacy Bell, who was 38 years old; and Andrea Altrock, who was 39 years old. All three worked in a different area of the company than Tramp did.
In July 2009, emails showed that the employer was pointing to losing older employees in order to help reduce heath insurance costs:
I just received the renewal rates for Associated Underwriters. I[f] I am reading this correct your proposal shows that we are getting almost a 25% increase. This will not be acceptable. Last year I know we spent a whole lot of time working and had no plans on remarketing, but if this is your best pricing we will have to go to market again.
Since last year we have lost our oldest and sickest employees, Jim & Shari Devine are no longer here, Barb Treadway and Marjorie [Tramp] are no longer here. Please let me know if this is the best we can do, what choices we have with you as I know that Chris and Jeff Mann would like to stay with you but we were expecting a rate decrease from the group becoming younger and healthier not an increase
The employer moved for summary judgment, which means dismissing the case as a matter of law before it gets to a jury. The district court agreed and dismissed the case. But, Tramp and her employment attorneys fought on to the Eighth Circuit Court of Appeal, which reversed the district court and sent the age discrimination case back for a jury trial:
We agree with the district court that at the very least Gurbacki’s choice of words— questioning whether “this is the best we can do” after pointing out that they had lost their “oldest and sickest employees,” and how Associated Underwriters expected a rate decrease “from the group becoming younger and healthier”—was crude and perhaps an insensitive way to describe the composition of the then-current employees to the health care provider. But, there remains a possibility that these statements could also be a manifestation of discriminatory intent in the process used by Associated Underwriters to be rid of its older (and/or oldest) employees in general. The emails are open to interpretation and on a motion for summary judgment, they must be viewed in the light most favorable to Tramp. One could deduce from Associated Underwriters’ own inquiries that it believed that as the age of employees increased so too did health care premiums. Tramp raises a genuine issue of material fact as to what Associated Underwriters supposed about age in making its employment decisions. Hazen Paper, 507 U.S. at 612, 113 S.Ct. 1701. …
Tramp has additionally created an issue of fact as to pretext. Associated Underwriters claim that it terminated Tramp due to the 2009 RIF and that Tramp was chosen because she was the poorest performer in her group. Yet, if believed, Tramp’s written reprimand and probationary status were imposed contrary to Associated Underwriters’ practice. That is, she argues that there was no such practice prior to the process imposed on Tramp in the fall of 2008. Perhaps more tenuously, Tramp argues that Associated Underwriters did not need to engage in the RIF resulting in Tramp’s termination Under the ADEA at the pretext stage, “proof that the explanation is false is necessary, but not sufficient, to show a pretext for discrimination under the ADEA…. [T]he plaintiff must show that the employer’s stated reason was false and that age discrimination was the real reason.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 516 (8th Cir.2011). At bottom, it is possible that a jury could view the evidence presented here as evidence of pretext-that Tramp’s poor performance and the RIF itself were a ruse to mask unlawful discrimination in this case. The critical factor is that, given the evidence presented, it is not for this court to decide whether age actually played a role in Associated Underwriters’ decision-making process and had a determinative influence on Tramp’s termination.
So, you have a trial court judge that there is no claim. You have a court of appeals that thinks it is a close call. So, the case goes to the jury, who found employment discrimination based on age and awarded Tramp $128,680.78 damages. Under the ADEA, the employee was also entitled to attorney’s fees, which the employee’s attorney submitted was $151,688. The court looked at the following factors to determine whether the fees and costs submitted by the attorney should be reduced: “(1) overbilling or duplication, (2) charges for administrative or clerical work, (3) inadequate record-keeping, (4) billing for work done with respect to claims on which Tramp did not prevail, and (5) claims for costs that are improper or duplicative.” At the end of the day, the district court determined that the employee’s attorney achieved an excellent result, and granted him all attorneys fees of $132, 198.80 and costs of $6,522,12. This was in addition to the $128,680.78 that was awarded by the jury to the employee. And, don’t forget that the employer had to pay its own lawyers too. Assuming that the employment defense lawyers charged about same rate and incurred about the same costs, the employer ended up having to pay over $400,000 to defend and resolve a case that they probably could have settled for much less had they been reasonable earlier in the process.
We recently had a Cleveland, Ohio employment defense lawyer tell us that he would not counsel his client to consider the possibility of having to pay attorneys’ fees to the employee’s lawyer in any settlement evaluation. Why, we asked. “Because I don’t.” If Associated Underwriters’ attorneys did not counsel it regarding its exposure for statutory fees – which means it is a matter of damages as a matter of law – those attorneys may be facing some very tough questions from their client given that the attorneys’ fees, just for the employee, were larger than the actual award.
If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”
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