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Delta-Lawyer
Delta-Lawyer, Lawyer
Category: Employment Law
Satisfied Customers: 3546
Experience:  In-House Counsel & Litigator
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I had an issue with COBRA benefits, is there an attorney

Customer Question

Hi
I had an issue with COBRA benefits, is there an attorney online that is well versed in employment law?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Delta-Lawyer replied 1 year ago.

I have over a decade of employment law experience and am happy to be of assistance.

Customer: replied 1 year ago.
Hi,
I had helped an employee make a sexual harassment claim at my employer. Turns out the director she reported the harassment to turned around and terminated her. She filed claim with the EEOC , got her right to sue, then eventually settled before the case even went to discovery.
Some time later I was also the victim; I was not reinstated to a higher position when such position was reinstated, even though I had documented excellent performance previously. When I asked why, they told me the job was "upgraded" , even though the new job description had less qualifications (and was left at the same pay grade) than when I held it. Subsequent to that, I was terminated for violating some obscure secondary employment policy that no one heard of, nor was it published in the employee handbook .
Approximately 45 days after my termination, I called the HR dept asking for the whereabouts of my COBRA election letter. I was told by the HR representative that I would not be offered COBRA, that I was fired for gross misconduct. I called the Dept of Labor to report the issue, and the DOL immediately contacted the employer for an explanation.. My ex-employer told DOL that I was not denied COBRA, and produced to them a letter allegedly sent by the third party administrator to me. The letter sent to the DOl did not even include a premium amount. While the DOL did not dispute my story, they said it was my word against the employer and suggest I get an attorney, which i did.I also asked the third party administrator for a copy of the COBRA letter; they never produced one; nor was their any entry onto my online account that a COBRA letter had gone out to me due to a qualifying event; in instances with COBRA election, it can easily be proven that a notation to the employees on-line account is made when the letter is mailed.
So there are 3 issues of retaliation; first, the denial to give me my previous job back, even thought an email went out claiming it was a reinstatement of my previous position; my termination, under the auspices of violating some obscure secondary employment policy, and the COBRA . Specific to COBRA, if they did deny me, aren't they obligated to send me a letter notifying me of the appeal process? When I asked the HR rep what my options were, she basically said to take it up with the person who fired me as it was his decision; nothing about any appeal process. If they didn't deny me, why wouldn't they have just sent the election letter when I called? It was still within the time frame for me to accept coverage.I have documentation of the day I called, I also have documented that i went to the marketplace and got my own insurance; which really hurt as I had met my annual deductible for the year and had to start over with a new deductible, relegating all my claims as out of pocket with the new policy.. Would an employer of 17,000 people really lie to the DOL ?
Also, they also discovered another employee was working with the same company. This was discovered a month after my termination. After much internal discussion, it was determined she would be demoted from her manager's [position effective immediately; but they paid her for 45 days , lined her up with an internal recruiter to help her find another position, and also allowed her COBRA coverage.
My question is basically this, as an employment specialist, do you find my case a compelling one? If in fact they didn't deny me coverage, why did their representative tell me it was when she looked into my electronic file? Isnt the fact they treated the other person terminated so differently than me strengthen my case? Also , they told her that "they really didn't want to terminate her" So they came up with the demotion compromise with their legal team. Doesn't that also show some type of discrimination towards me?
The employer is a 13 hospital private not for profit in Florida...
Customer: replied 1 year ago.
did you get my question?
Expert:  Delta-Lawyer replied 1 year ago.

Specific to COBRA, if they did deny me, aren't they obligated to send me a letter notifying me of the appeal process?

Yes, they are required to notify you in writing that your request has been denied and must specifically point out your appeal rights.

Would an employer of 17,000 people really lie to the DOL ?

Yep...I have seen it happen before many times. It may not be the representation of the company as a whole, but some mid-level manager will do it in a heartbeat.

My question is basically this, as an employment specialist, do you find my case a compelling one?

Very much so. This has EEOC and a subsequent federal suit written all over it. They cannot terminate you, no matter the policy, for assisting a person with an EEOC filing when the filing is valid. This is a borderline whistle-blower type cause of action as well for that reason.

f in fact they didn't deny me coverage, why did their representative tell me it was when she looked into my electronic file?

Because they did and you are wise to note that issue. See if you can get the representative to email you an acknowledgement that it was denied.

Isnt the fact they treated the other person terminated so differently than me strengthen my case?

Yes, because you can use this as a comparator - which is very important in this type of litigation. It helps you tremendously.

Also , they told her that "they really didn't want to terminate her" So they came up with the demotion compromise with their legal team. Doesn't that also show some type of discrimination towards me?

Once again, this helps you a lot. You have a VERY strong case against this entity on numerous levels and should file an EEOC complaint and a formal DOL complaint as soon as possible.

Expert:  Delta-Lawyer replied 1 year ago.

Let me know what other questions you have based on our conversation. I want you to be as comfortable as possible moving forward.

Customer: replied 1 year ago.
it has gone through EEOC, gotten an EEOC right to sue and filed a suit in Federal Court. We are now just beginning discovery... One other question; The day before the meeting with HR where I was notified of my termination , the Director who terminated me told me that the HR director wanted to meet with us that following day, but also told me that he personally didn't think there was an issue with any policy violation, and that the HR director" just wanted to get it off his desk". Consequently I walked into the meeting with the HR director that next day totally unprepared and ambushed. Is the fact that I was lied to in such a way also significant? I really believe the whole termination was pre-textual, and the Director was not honest with the TR Director when discussing the particulars in my case.
Expert:  Delta-Lawyer replied 1 year ago.

Is the fact that I was lied to in such a way also significant?

This is significant on two fronts: If this was a lie that led to an ambush, which means you would not be alerted to have an attorney present, it is certainly an issue that helps your case. If you take the person at his word, then it also helps you because you have an person in HR that made an admission that you did not violate any policy. So, either way, it is significant for your case.

I really believe the whole termination was pre-textual.

I completely agree - I think they made the reason up for your termination (as they explain it), after the fact. They fired you because they were angry at you for assisting someone else that was aggrieved. In anger, they terminated you and then made up a bogus reason after the fact.

Let me know if you have any other questions. Please also rate my answer positively as well. Thanks

Customer: replied 1 year ago.
Their only defense is a year passed between the harassment and my termination; however my attorney seems to thin k they used the first available opportunity.Would u agree? My performance evaluations were very good to excellent; I never gave them any reason to discipline me.
One other question; the third party administrator filed to be taken off as a co-defendant; my atty did not dispute the action. After the DOL sent me a the response from my employer saying they did not deny my COBRA election, I called the TPA and asked them for a copy of the election letter. While they said verbally to on the phone they did send it, They never produced a copy of what they allegedly sent, nor was there a notation in my electronic account that a qualifying event occurred and an election notice was sent out. They subsequently made a motion to be removed as co-defendant , which my attorney readily agreed to. He said there is law that allows the TPA to be removed in cases such as this, and he had no issue with removing them as co defendant. Do you think the TPA could have been compliant with my former employer specific to the letter being sent, but when threatened with legal action would not produce a letter to me and subsequently asked to be removed from the case? Also, the 110. dollar per day penalty for COBRA denial by law, could that still be running? My employer was notified I didn't get the election letter, didn't fix the issue. So would the meter still be running on such a possible penalty?
Also the Director in question fired the girl previous after she reported harassment, then he fired me. Can I make part of any settlement offer some type of discipline for him? He has patently lied to the corporation and he needs to be stopped.
Expert:  Delta-Lawyer replied 1 year ago.

however my attorney seems to thin k they used the first available opportunity.Would u agree?

I do agree. I think that all of your evals shielded you a bit because they were good. I think they seized upon the first chance they could get.

Do you think the TPA could have been compliant with my former employer specific to the letter being sent, but when threatened with legal action would not produce a letter to me and subsequently asked to be removed from the case?

Lawyer answer - maybe. I think that your attorney did the right thing in drilling down. Moreover, by doing so, the TPA should be more compliant in answering subpoenas and the like from you guys. It is a quid pro quo type deal now.

Also, the 110. dollar per day penalty for COBRA denial by law, could that still be running?

Yes, though in my experience, courts typically try to mitigate this in one form or another and establish trip dates...like the date the suit was filed, etc.

So would the meter still be running on such a possible penalty?

In a pure sense, yes...though see the above answer as well.

Can I make part of any settlement offer some type of discipline for him?

You can, but I would recommend against it. I would use all of my bullets to get as much money out of these people as you can. I would not mitigate my own damages by going after this person because a company that large will just move them to another area and they will keep doing what they are doing. If he costs them enough money, they will terminate him. That is your best recourse, for you and against him.

Customer: replied 1 year ago.
last one , u have been great and I will send you a tip.... I am being deposed by opposing counsel next Thursday... Never been deposed before..any advice? does my attorney interrogate me as well??
Expert:  Delta-Lawyer replied 1 year ago.

Your attorney can ask questions, but most of the time they don't. They will object to questions when necessary from opposing counsel. My advice is to think before you answer any question. Only answer that which has been asked...don't build out on anything unless you are absolutely sure it helps you. Also, lawyers will ask a question, you will answer...then they will just look at you in silence. The natural response in our culture is for you to start talking again. Don't fall for that old trick. Remember too - you have the truth on your side, and that always gives you an ace up your sleeve. Best wishes!

Expert:  Delta-Lawyer replied 1 year ago.

Did you have any other questions or comments? I just want to make sure you are as comfortable as possible as you move forward. Thanks

Customer: replied 1 year ago.
Based on what I have told you, would you feel my case is strong enough to withstand any summary judgment request by the defendant? ..
Expert:  Delta-Lawyer replied 1 year ago.

Without a doubt. I think you have a very strong case and would be surprised if they do not offer to settle once you beat any summary judgment attempt on their part. The employer is always going to seek summary judgment as a matter of course. Once you defeat that attempt, I think settlement talks will begin shortly thereafter.

Expert:  Delta-Lawyer replied 1 year ago.

Let me know if you have any other questions.