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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7518
Experience:  Significant experience in all areas of employment law.
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I have been given a choice to take a different position,if

Customer Question

I have been given a choice to take a different position,if i didn't except
this position (which they know I didn't want) My only other choice was to take a lessor position.In the past few months there have been comments about my age.I feel they are trying to get me to quit.Do I have a case of age discrimination?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. I am very sorry to hear about your predicament at work.

Can you be more specific about what comments have been made about your age? Can your company articulate any legitimate basis for offering you this change of position?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.

I sent text stating i was going to lunch,got a sarcastic comment so i asked if i have to get grief every time I go to lunch it gets old, he text back yes you are then sent it does, auto correct.


 


another time commented on how old i was in front of others.I would not state my age the he pulled up my personal info on computer and said "I know how old he is"


 


When I asked what my choices were if I declined the position I was told I could sell cars. I am a Sales manager and the position they want me to take is finance manager.They know I do not want it and know I do not like the hours that go with position.They are hoping I quit

Expert:  Patrick, Esq. replied 1 year ago.
Frank,

Thank you very much for your additional facts. Above all else, you do not want to quit your job unless you have something else lined up, as quitting will typically result in the denial of unemployment benefits.

With regard to the issue of discrimination, employers typically retain vast discretion to hire, fire, demote, and transfer their employees with such decisions being illegal only if they run specifically afoul of an employment contract or are based on a protected trait, such as age.

The difficulty in successfully asserting an age discrimination complaint is that, not only do you as the plaintiff have the burden of proving that you were discriminated against on the basis of age (remember, employers are otherwise free to transfer of demote you without good reason), but the U.S. Supreme Court recently established that a plaintiff alleging age discrimination must prove that "but for" their age, the same adverse employment action would not have been taken. (See Gross v. FBL Financial here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=08-441)

In other words, it is not enough to prove that age may have had something to do with your adverse employment action, you must prove that if you were not as old as you were, the same employment action would not have been taken. This is an incredibly high standard to meet.

Many attorneys will rush clients into pursuing age discrimination claims without consideration to whether doing so is actually in the the clients best personal interest. In many cases it is not, as bringing any discrimination complaint becomes public record, conceivably making prospective employers hesitant to hire you out of fear they will be the subject of a lawsuit. Of course, this is an illegal consideration for an employer to make, but the reality is that it still happens every day.

Furthermore, litigation is expensive and stressful. It costs several hundred dollars simply to file your complaint and many hundreds more to hire an economist to testify to your damages, court reporters to conduct your depositions, motions fees to defeat summary judgment and compel discovery, and much more. You can expect any lawsuit alleging discrimination to become an intensely focused inquiry on your performance (and any deficiencies you may have had) at your company, as this is evidence relevant to assessing whether there was a legitimate basis to take adverse employment action against you. Many of these cases drag on for years.

Finally, on the particular facts you have stated there is an issue as to damage. The "different" position you talk about does not seem to pay less (I apologize if my assumption in this regard is wrong), and if you were to reject it in favor of quitting or accepting the other position with less pay, your employer can argue that you failed to mitigate your damages by not accepting the position with equal pay, and that if you had, the quantifiable damage you incurred is zero.

In consideration of all the above, I do not believe the facts you have stated would typically present a strong discrimination claim, as the evidence is only mildly suggestive (in my opinion as an employment law attorney who frequently works on discrimination cases) that a discriminatory motive is the reason why you were being offered these transfers and likely would not pass the "but for" test described above. Thus, unless you have a particularly high tolerance invasive and expensive litigation and are not too concerned about the impact a lawsuit may have on your prospective employment outside the company, I would give some serious pause to pursuing legal action unless you have additional facts which make a more compelling case for age discrimination.

My answer here is intended to be entirely candid and honest. I could provide you with a more "sugar coated" response, but I respect that you are here for accurate information and not merely to be told what you want to hear. I hope you will appreciate my efforts to be up front with you.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7518
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
Employment Lawyer
7518 Satisfied Customers
Significant experience in all areas of employment law.