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Question on age discrimination person has been with company…

Question on age discrimination...

Question on age discrimination person has been with company 26 years in same position age of person 72 Engineering Dept. Last two job performance reviews negative . The last job performance review was about a month ago mostly negative nothing much positive person had a copy of the review during the review. Then the one supervisor wanted to change something on the review that they other supervisor said that was slightly positive. He took the performance review document and has since not returned it. Employee feeling is they are going to try and dismiss him possibly next review the reviews are every 6 months.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Ohio

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time position

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Answered in 1 minute by:
10/24/2017
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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I'm sorry to hear about your situation. Can you tell me what your specific question is so that I can be certain to answer it?

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Customer reply replied 9 months ago
The questions is should this employee seek an attorney. Or what position can he take if any?

Thank you. Is there any evidence specifically that they're doing this because of age? That is, are other (younger) employees in the same situation being treated differently? Or is it "circumstantial" in that he's this age AND they're doing this, but nothing specifically linking the two?

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Customer reply replied 9 months ago
I think because the last performance review was so negative and they ask him for his copy of the review to change it seemed strange to him and they have not given it back. So they other is if they terminate him he thinks he cannot collect unemployment, he goes in everyday and does his job like he has done for 26 years . He is just thinking ahead just to get some advice.

Thank you for that additional information. Please give me a few minutes while I type a response. I am still here with you, but it does take a bit of time to type a complete response.

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Customer reply replied 9 months ago
are you still there

The first thing that you need to know is that Ohio is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

In this case, he is covered by Title VII and the ADEA (Age Discrimination in Employment Act), meaning that he could, potentially, have a case and complaint against his employer. That being said, race and age discrimination cases are difficult to win. In order to show a prima facie case for race / age discrimination, he is going to have to show: (i) he is in a protected race / age class (check), (ii) he suffered an adverse employment decision (unknown), (iii) at the time of the adverse employment decision, he was performing your job at a level that met his employer's legitimate expectations (unknown), and (iv) persons of his qualifications were retained in the same position or there was some other evidence that the employer did not treat race / age neutrally in deciding upon this action (more difficult).

In ADEA ("age discrimination") cases, the plaintiff must present evidence demonstrating a "reasonable probability" and not merely a "possibility" of age discrimination. First, a plaintiff can offer direct and circumstantial evidence that he would not have been discharged but for his age; the evidence must be of sufficient probative force to support an inference of discrimination. Second, a plaintiff may use the McDonnell Douglas scheme of shifting burdens applied in Title VII cases. Under this scheme, once the plaintiff has established a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its employment decision. If the employer meets this burden, the plaintiff must then show that the employer's proffered reason was mere pretext and that age was the more likely reason for his dismissal.

The Supreme Court has expressly held that an employer does not violate the ADEA "by acting on the basis of a factor, such as an employee's pension status or seniority [or salary], that is empirically correlated with age." Even though age is often related to factors such as salary, it is "analytically distinct" from them. For this reason, "an employer can take account of one while ignoring the other." Moreover, "[w]hen the employer's decision is wholly motivated by factors other than age, ... [e]ven if the motivating factor is correlated with age," that decision is not contrary to the ADEA. Accordingly, even if the company reduced the salary to reduce its costs (or even fired The employee simply to reduce its salary costs) this is not evidence of age discrimination.

It's certainly possible that they're "setting him up" to fail. But he'd be ineligible only for "misconduct". If he can show that he tried hard and did not knowingly / intentionally reduce his effort / output, then the shifting demands of the employer wouldn't be enough to deny unemployment.

It's still possible that this is age discrimination. But the burden of proof is on him to prove it, not the employer to disprove it.

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Yes, I am still here. Like I said only 4 minutes ago, it takes some time to type out the answer.

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Please give me a few more minutes to finish.

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IF he has evidence that shows that they're treating his age disproportionately from others, then he could have a case. But again, the burden is on him. And in that situation, the first step in such a process would be to file a complaint with the EEOC. You can file a complaint at the EEOC field office nearest to you (you can find the list here: https://www.eeoc.gov/field/). Contact them and inquire about the process to file a complaint. Once you file the complaint, they will conduct an investigation, and if they find that it's meritorious, they'll either try to obtain a settlement from the employer or give you a "right to sue" letter. You'd then want to take that to an attorney in your area to look at your chance of a case.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Customer reply replied 9 months ago
Thank you
What is your thoughts on the job performance doc. that has not been returned

That's strange, but not unheard of, and that's also "internal" meaning that there's no law that requires that they do so. At-will employment generally governs such a situation, and they have the authority to do so. Only if it could be shown that their intent was illegal (based upon race, age, religion, gender, or disability, or in retaliation for doing any protected activity (FMLA leave, filing an EEOC case, etc...) ) would that then be illegal.

ScottyMacEsq
ScottyMacEsq, Lawyer
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Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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Customer reply replied 9 months ago
Thanks

You're welcome, and again, good luck to you!

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