Best Ohio Age Discrimination Lawyer Reply: What if I think I was terminated because of my age? Is it discrimination if I am not promoted because of my age? What should I do if I was fired today because my boss said that I am too old?
As our employee attorneys have previously blogged about, employees who are 40 years or older are protected from discrimination under both Age Discrimination in Employment Act (“ADEA”) and Ohio laws (R.C. § 4112.02(N), R.C. § 4112.05, or R.C. § 4112.14). (See Age Discrimination Plaintiffs Beware: Filing an EEOC Complaint; Age Discrimination: A Good Verdict.; Age Discrimination: Sometimes, It Is Just That Simple.; and My Boss Said I’m Too Old To Keep Working!).
Age discrimination occurs when an employer takes an adverse action against an employee because of their age. (See What is an Adverse Employment Action Under Ohio Law?). As you can imagine, the challenge in age discrimination cases is proving that the adverse action was because of age. One way to prove age discrimination is with direct evidence. Direct evidence of age discrimination is something that does not require one to draw any inferences in order to conclude that the adverse employment action was motivated, at least in part, by age related prejudice. Under this standard, some courts hold that only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, will constitute direct evidence of discrimination.” As an example, a manager or boss telling an employee that he or she was being terminated because “you’re simply too old” or “we want to bring in younger workers with more energy” despite the employee’s superb employment record would constitute direct evidence. A manager or boss telling older employees that they should retire or engaging in forced retirement Of course, employers rarely provide older employees with such clear cut pieces of evidence.
The other way to prove age discrimination is with indirect evidence. As such, discrimination attorneys are often left to build cases on circumstantial evidence and whatever off-hand age-related comments their clients can remember. This may include some off color general age comments, statistical evidence that the workforce is becoming younger, on anything else that would make it more likely that age discrimination is in play. Where there is indirect evidence the plaintiff must offer:
sufficient evidence from which a jury could determine that: (1) she belongs to a protected class (i.e., is forty years of age or older); (2) she was qualified for the position; (3) she suffered an adverse employment action despite being qualified; and (4) under circumstances that would raise an inference of discriminatory action, the employer continued to seek individuals with qualifications similar to the plaintiff’s to fill the position. Sarullo v. U.S. Potal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
Once an employee establishes evidence of age discrimination, the employer must then give a “legitimate, nondiscriminatory reason” for the adverse employment action. It is then up to the employee to establish that the employer’s reasons for the adverse action are pretext – which is a fancy legal term for a lie or that the employer is making up a reason for the termination. The United States District Court for the Eastern District of Pennsylvania recently examined pretext in Milillo v Thomas Jefferson University Hosp., Inc. In that age discrimination and wrongful termination case, Joyce Milillo filed suit against her former employer for, among other things, age discrimination under the ADEA. Joyce was a 60 year old Accounts Payable Supervisor at the hospital. Joyce transferred to another campus, which had just begun using a new accounts payable software system. One of Joyce’s new supervisors complained about Joyce’s performance and gave Joyce a written warning that Joyce had “made mistakes” and that her position was in “serious question.” Shortly after, the Accounts Payable Department was reorganized. A notice went out to all Accounts Payable personnel, including Joyce, that the staffing structure was being reorganized, and all current employees had to reapply for jobs within the department. Joyce applied for her position, and was not rehired. Instead, the hospital hired two current employees and four external applicants that were substantially younger than Joyce. The hospital claimed that it did not select Joyce because she had “poor customer service skills” and had “concerns about her ability to function effectively in the department.” However, when Joyce was terminated, her non-selection letter said that Joyce’s position was eliminated. The court explained:
At the summary judgment stage, in order to show pretext, Plaintiff “must point to some evidence…from which a factfinder could reasonably…disbelieve [Jefferson’s] articulated legitimate reasons.”… The plaintiff bears the burden of persuasion at all times. Smith, 589 F.3d at 690. …
We are concerned initially with Jefferson’s articulated basis for Ms. Milillo’s non-selection (“Your position will be eliminated”) and that explanation’s inconsistency with the reasons presented in Defendant’s Motion (“poor” customer service skills). We are further concerned by the simple fact that of the six of the persons “selected” for the position Ms. Milillo formerly occupied, three were under 30, two were between 30 and 40 and one was between 40 and 50. We also take into account the evidence Plaintiff has developed with respect to the process and the undisputed fact of the “challenging” environment in which all were working. We conclude from the papers before us that Ms. Milillo has met her burden of production with respect to the ADEA claim showing that a reasonable fact finder could disbelieve Jefferson’s articulated reasons for her non-selection and conclude that she has sufficiently established a causal relationship between her age and her non-selection.
The court concluded that a trial was required for the employee’s age discrimination claim. First, the court found the inconsistency between the explanations for Joyce’s non-selection to be of concern. Further, the court found concern with the fact that of the six persons selected for Joyce’s position, five were under 40, and one was between 40 and 50, all significantly younger than Joyce. These facts were enough to sufficiently establish “a causal relationship between her age and her non-selection.”
So even though Joyce was not able to point to any direct comments from her manager, supervisor or other boss about her age; and no one from HR said anything directly about choosing to have a younger workforce, Joyce was able to bring her age discrimination claim to a jury for determinate. Getting past summary judgment, which is when your employer asks to have your employment discrimination case thrown out at as a matter of law, usually makes employers much more willing to discuss settlement and avoid the risk of jurors deciding their fate.
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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