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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20228
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I was a witness in a harassment lawsuit, and reported the

Customer Question

I was a witness in a sexual harassment lawsuit, and reported the harassment to Corporate Comp. The accused harasser was ultimately fired, due to my testimony . Since the time I was involved in the harassment issue, I could feel resentment from a specific management member that was the Director for the accused harasser and was likely disciplined himself for not acting on the harassment. I survived a while, but then a VP who was over the whole area retired, which left me more vulnerable in my mind to retaliation. Sure enough, two weeks after the VP retired I was terminated for some trumped up secondary employment policy violation. I filed a complaint with EEOC for wrongful termination. About 6 weeks after my termination I had not seen my COBRA election letter; this company employs over 20000 employees and is subject to ERSA . I called to check on my election letter, and I was told that I was denied Cobra for gross misconduct. When I asked what options I had, if any, I was simply told I could take it up with the Director who terminated me. I saw that as a waste of time; so instead I called the Dept of Labor to file a complaint. they were told by the employer in response that I in fact was not denied, and sent to them a letter they claimed was the COBRA election letter sent to me. The letter did not have a premium amount, did not have a premium due date, it was simply a letter saying I would be eligible for COBRA. The DOL said it was kind of my word against the employers and didn't know what more they could do.. I informed my attorney and he quickly added the Cobra issue as an element to my case file in Federal Court.. Despite the fact the employer told the DOL I was not denied COBRA , they never sent the election letter, even though they were alerted to the fact I never received one.The case went to Discovery, where we maxed out allowable depositions .My attorney and I felt really good about the depositions, every one. Some key findings were facts such as- the agent who told me my Cobra was denied had been there for over a decade, and never recalled making such a mistake, opening up the possibility my COBRA status had bee been changed to eligible only after the employer received a notice from the DOL asking for clarification; another employee had testified she was also working a second job, and when it was discovered they simply demoted her, did not terminate her, and also provided COBRA when she ultimately decided to leave the company; and then shockingly,the Human Resource Director testified I was terminated for gross misconduct, a total contradiction to previous testimony and to their response to the DOL; my immediate manager testified she did not agree to my termination, but was not asked her input even though she had direct authority over me. There was testimony after testimony saying the secondary work I did was not in violation of any conflict of interest or secondary employment policy. I had great performance reviews, highest in the department. But I knew once that VP was retired I could be vulnerable to retaliation.
we went through Discovery, we felt great about the testimony, felt it really was strongly in our favor. We were assigned a Federal mediator and met with him and the defendant. In the interim the defendant as expected filed for summary judgment. When we were in private discussion with the mediator, he asked who the Federal judge was assigned to the case. When we gave him the Judge's name, he said," that's a really bad break". and went on to say "he wont even read it" and said he would almost guarantee the judge will grant summary judgment. He also said the defendants legal team knows the characteristics of this judge, and he would be surprised if there was any worthwhile discussion to settle the case. He was dead accurate,the defendants offered some very low settlement numbers, basically making it clear they would wait out decision on summary judgment. Well, sure enough as predicted by the mediator, the judge granted them summary judgment on all elements. Specific to the COBRA issue, he simply said there wasn't any case law that he could recall that would give him precedent. So he basically threw out the whole case , despite the fact the first two elements of wrongful termination were not in dispute, and there was ample testimony to demonstrate pre-text on the third element.
My question is this, my attorney feels strongly about an appeal; I do know the case would be reviewed "De novo" which could help me if in fact they actually do more than a cursory review of the case. Is it at all possible for summary judgments such as this be remanded by Federal Appeals Court? Good gosh, nobody ever refuted I did not get Cobra; They told the DOL one thing and testified to another. how did this ever get a summary judgment. ? I read the judges decision, it sounded like he was basically deciding the case, not determining if there were issues of fact. Would it be worth it to me to give myself a chance
Submitted: 9 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 9 months ago.


Thank you for the information and your question. Although your attorney is ultimately party that you should depend on to determine whether it is worth your time and money to file an appeal, the Federal Appeals Court does remand cases of summary judgements in some cases. The appeals court must view all evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the non-moving party, meaning you, so that is a favorable standard.

If your attorney believes that some, or all, of your causes of action are substantiated, then it is worth the chance upon appeal since you have come this far. Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the ratings box above, I will receive credit for assisting you today. Thank you

Expert:  Marsha411JD replied 9 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 19th. For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at:

Thank you.