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socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 33369
Experience:  Retired (mostly)
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I have an active EEOC claim, to which my employer has not responded

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I have an active EEOC claim, to which my employer has not responded at all - ignored Mediation offer, ignored notice that the claim had been sent back to Enforcement...

Meanwhile, my PCP, aware my employer has an excellent long-term disability plan, has been urging me to apply tor it... but the employer's disability officer has been telling me that I'm not eligible because my job is due to end too soon.

Now my HR officer tells me that if I cancel the EEOC claim & swear I'll never tell anyone about it, they'll give me a version of the 6-month extended sick leave that's the first step towards their disability program... with no promise that I'd get disability, and with less financial support than the standard x-sick-leave program.

Shall I tell my EEOC contacts what's happening? I've been discussing this with my brother, an out-of-state disability law expert who's given me statements for my employer, but I want to triangulate my advice! - what's my next step? Thanks -
Submitted: 1 year ago.
Category: Employment Law
Expert:  Tina replied 1 year ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

Do you know whether you are eligible for the employer's disability benefits without accepting the offer they have made to you?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.
No, I'm not eligible because they want me to be on extended sick leave for 6 months before I get disability - and my job is ending on June 3 - not enough time.
Expert:  Tina replied 1 year ago.
I see. If your position is truly ending because of the employer's business needs and your claim of discrimination is not very strong, then the offer may be reasonable. However, since you have a charge of discrimination pending with the EEOC, there would typically be an inference that the employer is terminating your employment in retaliation for filing the charge, which would support a new claim being filed with the EEOC for retaliation since that is also prohibited by federal law.

If the employer cannot prove that they would have terminated your position even if you had not filed a charge with the EEOC, then you could prevail on a claim of retaliation in addition to your claim of discrimination, so you must carefully consider whether the employer's stated reason for terminating you is legitimate, or whether it may be a pretext for retaliation, supporting a new claim against them.

If it is, then I would not seriously consider their offer. In addition, if your claim for discrimination is sound, the offer would not typically be reasonable if you have suffered lost wages and benefits or may be able to seek punitive damages because you can prove willful discrimination.

Since they are not providing you with any guarantees after the 6 month period, you may wish to consider presenting them with a counter-offer for a sum of money in addition to the 6 months of disability as a settlement of your claim.

It would be best though is you consulted further with a local employment law attorney to closely review the merits of your claims in order to advise you as to the strength of your claims. If you have viable claims of discrimination or retaliation, then the offer does not appear to be very reasonable.

Finally, if you are disabled, you may wish to consider filing for social security disability as that could pay benefits even if you are not entitled to benefits under the employer's plan.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Expert:  Tina replied 1 year ago.

I'm truly disheartened to see that you rated my assistance to you negatively instead of using the reply button to let me know what additional information you may be seeking from me. I strive to provide every customer with excellent service. How may I better answer your question for you? I invite you to ask any additional question that you may need to, for clarification of your issue.

Customer: replied 1 year ago.
I feel you missed the order of actions:
1) I was laid off.
2) My brother the disability law expert sent me to the EEOC
3) the EEOC found my claim worthy of pursuing
4) my employer ignored the claim for 4 months, while my job approached its end
5) my employer offered me the disability option too little, too late, insisting they'll only give me that poor option if I withdraw the EEOC claim and legally promise to never let anyone know about it.

The one useful thing you said was "It would be best though is you consulted further with a local employment law attorney to closely review the merits of your claims in order to advise you as to the strength of your claims. If you have viable claims of discrimination or retaliation, then the offer does not appear to be very reasonable." - in other words, you think I need to hire a lawyer.

(I don't want to go for SSDI because I'd be trapped in a worse state than I am now, on SSDI forever and never allowed to earn a living at all.)
Expert:  Tina replied 1 year ago.
Hello again,

I'm sorry you thought I missed something, but I did understand the situation. The EEOC does evaluate claims but they do not provide legal advice to claimants, so their finding that the claim is worth pursuing would carry little weight unless they decide to pursue legal action themselves against the employer. I agree the offer seems to be too little, too late, assuming you have a viable claim. You may wish to file a charge of retaliation as well with the EEOC if you have reason to believe that the employer would not be terminating your employment if you had not filed a claim against them.

You DO need to retain a local attorney to guide you through the process as your next step is likely to be a lawsuit filed in federal court if you do not accept the employer's offer. The EEOC will normally issue a right to sue letter if the charge is not settled through the EEOC process, then you will have only 90 days to file suit or your claim will be dismissed. Since there is an offer on the table though, you should have an attorney review your case and evaluate your claim for retaliation as well.
Customer: replied 1 year ago.
You say:
"You may wish to file a charge of retaliation as well with the EEOC if you have reason to believe that the employer would not be terminating your employment if you had not filed a claim against them."

As I keep saying, THEY PUT ME ON THE LAY-OFF TRACK FIRST!!! *Then* I filed with the EEOC. They are not terminating my employment in retaliation for filing the claim - the claim came second.

On the other hand, it looks like they're offering me the disability package as a way to shut down my EEOC claim.

So I get back to my original question:
*Shall I tell the EEOC about my employer's too-little-too-late attempt to shut down the claim?*
Expert:  Tina replied 1 year ago.

I am going to opt out of your question and open this up for other professionals to get their opinion. You do not have to stay online for the question to be active, or rate this question yet as it would then discourage others from answering. Should a professional pick it up, you should be alerted via email and/or SMS (text message) unless you actively disable these features.

There is no need for you to reply at this time as this may "lock" your question back to me, thus inadvertently delaying a response from someone else.

My apologies for any inconvenience and Good Luck.

Expert:  socrateaser replied 1 year ago.
Hello,

Different contributor here. Please permit me to assist. You asked: Shall I tell the EEOC about my employer's too-little-too-late attempt to shut down the claim?

A: Evidence of statements made during settlement negotiations between parties is inadmissible at trial. However, a unilateral settlement offer not part of any settlement discussion may be admissible evidence. There is a split of legal authority between various courts on this issue. See, United States v. Davis (DC Cir. 2010) 596 F3d 852, 859; cf., Lee Middleton Original Dolls, Inc. v. Seymour Mann, Inc. (ED WI 2004) 299 F.Supp.2d 892, 894–895.

Given that the offer may be admissible to show that the employer believes that it may be liable for discrimination (the proverbial "smoking gun"), the answer to your question is unequivocally, "yes."

Please let me know if I can be of further assistance.
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 33369
Experience: Retired (mostly)
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