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Marsha411JD
Marsha411JD, Attorney
Category: Legal
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Experience:  Licensed Atty, 28 yrs exp in the practice of law.
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I am a 56 yr old man in the 10th month of long term disability

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I am a 56 yr old man in the 10th month of long term disability and it was decided between my boss and I that the deadline for me to return to my job would be 5-15-13 (the one year mark). We agreed on that on several occassions. Suddenly in mid Feb. a person from human resources called me and said I had been terminated from the bank because my position had been eliminated. I had worked for the bank for 24 years, 22 years at the same position and was acknowledged as an expert in that area. BUT all the people on my team are half my age and probably making about $6000 less than me ( i was making $37,000) at the time of termination. I still have never recieved anything in writing from USBank (my employer) saying I was terminated. The only thing in writing I have recieved is was at the end of Nov. when O went from short to long tern dis.The letter I got was a warning that when the long term dis runs out on 5-15-13, I would automatically be terminated and that was my only warning...then , like I said, i suddenly recieved a call in mid Feb. from HR saying I was terminated and that was it. Do I have any grounds for wrongful termination?? Thanks for your help!!
Submitted: 1 year ago.
Category: Legal
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. First it is important to note that neither Wisconsin nor Federal law provides job protection indefinitely for workers who are away from work because of serious health issues. Under FMLA, there is only a 12 week window of job protection. After that an employer is free to terminate an employee based on attendance issues, just like any other employee who missed XX number of days of work. The fact that you were on STD and LTD does not give your statutory job protection. Those are merely insurance policies that provide for wage replacement.

That said, if your employer has a written policy or procedure in place where they retain any employee as long as they are on STD and LTD, then they must follow their own policies. However, even under FMLA, the statutorily job protected leave, an employer may let someone go is they do so for a nondiscriminatory legitimate business reason unrelated to their condition. So, that means that under FMLA, an employer may let someone go who is downsized or has their position eliminated as long as the elimination would have occurred but for the person being out on leave. In other words, if the elimination of the position would have occurred, even if you were working, instead of on leave, then the termination would be lawful.

So, you will need to try to determine if you think this would have happened even if you had been working. If not, then you should sit down with a local employment law attorney and discuss all of the facts of your case and decide if you want to file suit for disability discrimination or not.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 1 year ago.

Thanks Marsha. I was afraid of you would answer that way. The other answer is that no, they would not have downsized if I hadn't taken ill. I was the "expert" on the team. But i guess knowledge doesn't really count as much anymore,. I already spoke to a labor attorney and he said it would be $250/hr to review the case and talk to me. That's why I'm talking to you. But I'm not surprised by your answer. One more factor: my health really is terrible and I don't think I can work anymore anyway. The atty I contacted offered to have a disability atty sit in with us at the 1st consultation. I think that might be the best route to go, kill 2 birds with one stone. Does $250/hr seem like a high rate to you??

Expert:  Marsha411JD replied 1 year ago.
Hello again and I am sorry that the news wasn't better. But if the facts will support that this decision to eliminate your position would not have been made if you had stayed, then you might still have a case. If you feel that at this point filing suit would be cost prohibitive (it can be expensive up front), then another alternative for you is to file a disability discrimination complaint with the Wisconsin Equal Rights Division. They will also file a lateral complaint with the EEOC. They will try to resolve the issue, usually by mediation, and you might get a offer of a low level settlement during that process just so the employer can close the case. Then it would be up to you if you just want to take what you can get and move on or not.

I do think it might be a good idea to have to coconsultation with both the employment attorney and the SSDI attorney. Although some attorneys offer discounted consultations, many just charge their regular hourly rate. In that case, $250 is not out of the realm for an hourly rate for an employment law attorney.
Customer: replied 1 year ago.

The cost is prohibitive, unless I stop everything after the first constulation. That would be $500. If I file complaints with the Wisconsin Equal Rights Division or the the EEOC, do I have a snowball's chance of winning? And how long would it take before I actually collect?? Another issue is - my health is bad, but it's not any one big ailment. It's more like severe psoriatic arthritis, depession, several bad joints and the fact that I just had to have my fight shoulder replaced because of a bacterial infection I got from a hospital. It didn't really just effect my shoulder, I lost 70 lbs and am VERY weak. Taken as a package, is that all enough to get disability?? Plus I hear that in WI it's at least a year's wait to have your case heard.....a very big gamble.

Expert:  Marsha411JD replied 1 year ago.
I really can't tell you what your chances are at prevailing with either your discrimination complaint or your SSDI application since I don't have all of the facts and records. I can say that it costs you absolutely nothing to file your complaint with the State and the EEOC, so it is worth an effort just to see if the employer will just make an offer to get this behind them. Some money is better than none. That process really doesn't take so long. It could be within a few months. However, if there is not resolution at mediation, then the investigation and ultimate decision as to substantiation can take a year or more.

In regards XXXXX XXXXX that is a very long drawn out process and I can tell you based on the few facts you have provided that you will initially be denied benefits. That is just the norm. There are very few conditions which get approved on the first round. In fact, my son had a terminal genetic disease that he had all of his life and when he applied for SSDI in his early 20's he was initially denied. Terrible process, but it is what we have. So, that means an appeal and then a hearing in front of a Administrative Law Judge. That does take months to schedule and you will most definitely want an attorney for the appeal. The attorneys though that handle SSDI cases are limited in what they charge and they only get paid if you are approved, and from your award, so that should not be cost prohibitive.
Customer: replied 1 year ago.

Thanks again. Can I file my complaints with the State and the EEOC myself, or would i need an attorney??

Expert:  Marsha411JD replied 1 year ago.
You're welcome and you can file them yourself. You can find out how to file your State complaint by going to: http://dwd.wisconsin.gov/er/
Marsha411JD, Attorney
Category: Legal
Satisfied Customers: 17269
Experience: Licensed Atty, 28 yrs exp in the practice of law.
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