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I was terminated while on short-term disability for back…

Customer Question
I was terminated while...

I was terminated while on short-term disability for back surgery. Is that legal? They said it was because I had no definite return date but I had told them a week earlier that I was seeing the surgery one week later and at that time, I could be cleared to return.

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

I live in Delaware, worked in Maryland, and my employer is based in Virginia.

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

It was full-time, I don't know what at will means.

Submitted: 3 months ago.Category: Employment Law
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Answered in 2 minutes by:
11/6/2017
Employment Lawyer: Loren, Lawyer replied 3 months ago
Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 36,290
Experience: More than 30 years in legal practice.
Verified

Thank you for using JA. I am Loren, a licensed attorney for over 30 yrs., and I am here to help.

I am a certified expert on JustAnswer since 2009, with nearly 100% in 5 star ratings. So, we should be able to work through your problem.

I appreciate your patience as I review your question. I will post my response shortly.

This is general information and no attorney client relationship is established.

The site may ask you if you wish to speak by phone for an extra charge. Many find the phone call to be the easiest and fastest way to get the information they need without posting on a public forum. I am also happy to continue online.

There may be a slight delay in my replies as I am assisting other JA customers also. I will reply to your follow up questions.

WHILE WE ARE CHATTING DO NOT CLICK ON THE BUTTON TO REQUEST A SECOND OPINION. IT WILL LOCK ME OUT OF THE CHAT AND PREVENT ME FROM REPLYING TO YOU.

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Employment Lawyer: Loren, Lawyer replied 3 months ago

Before I answer a bit more detail would be helpful please.

1. Do you have a written employment agreement for a fixed term requiring cause for termination, discipline or demotion?

2. Do you believe you were treated differently than other employees due to race, religion, ethnicity, etc.?

3. Had you requested a reasonable accommodation under ADA?

4. Were you approved for or out on FMLA?

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Customer reply replied 3 months ago
1. I don't know.
2. Yes, I am 61 and I believe that my age may have been a factor.
3. What is ADA.
4. Yes
Customer reply replied 3 months ago
In addition to the initial $5, I see that my credit card has already been charged an additional $41 that I did not authorize.
Customer reply replied 3 months ago
What would be the language in an "at will" contract? Would it specifically say "at will"?
Employment Lawyer: Loren, Lawyer replied 3 months ago

I am showing the question as having a price of $46. The $5 dollars is a deposit.

Did you still want my answer?

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Customer reply replied 3 months ago
I do
Employment Lawyer: Loren, Lawyer replied 3 months ago

Thank you for the additional information. Give me a moment to type an answer. It will post shortly.

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Customer reply replied 3 months ago
ok
Employment Lawyer: Loren, Lawyer replied 3 months ago

Thank you for the additional information.

Being on STD would not, in and of itself, protect you from termination if it was not associated with FMLA. However, it sounds like you may have a claim for age discrimination under ADEA.

In order to make a successful claim for age discrimination you must first establish a prima facie case as follows:

In Fasold v. Justice, 409 F.3d 178, 184-85 (3d Cir. 2005), the court held that the plaintiff:

presented evidence that he (1) was over forty years old at the time of the adverse employment decision; (2) is qualified for the position in question; (3) suffered from an adverse employment decision; and (4) that his employer replaced him with someone sufficiently younger to permit a reasonable inference of age discrimination. See generally Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004); Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002).

Once you are able to establish that you were subject to disparate treatment, the burden shifts to the employer to show that there was a legal reason for the adverse action taken against you.

To start the process, contact the EEOC at www.eeoc.gov for more information on filing a complaint. Your employment is protected from termination due to filing the complaint. Such termination would be retaliatory and subject your employer to further liability to you.

An attorney is not required, but it would be invaluable in this type of claim. It is not simple litigation and there is no reason you need to learn as you go. Additionally, if you prevail, you would be awarded your attorney fees and many attorneys who handle this type of claim, do so on a contingency fee basis. So, it should not cost you anything upfront.

If you need help finding local counsel, try Martindale Hubble. Many attorneys themselves use this site to locate attorneys outside their jurisdiction or expertise:

http://www.martindale.com/Find-Lawyers-and-Law-Firms.aspx

If (and only if) you are completely satisfied that your question is answered, please remember to leave a favorable rating (click 5 stars in the rating section on this page). It is the only way that I am credited by JustAnswer for answering your question.

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Customer reply replied 3 months ago
I don't know how to find out anything about my replacement, but I know they interviewed and were prepared to hire someone immediately prior to my termination. If I cannot obtain information about my replacement's age, what about termination under the family leave act?
Employment Lawyer: Loren, Lawyer replied 3 months ago

If you file with the EEOC they will investigate who replaced you.

FMLA would have needed to be applied for and approved before you left.

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Employment Lawyer: Loren, Lawyer replied 3 months ago

Are you still online with me?

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Customer reply replied 3 months ago
Loren, I accidentally closed the chat window yesterday and didn't know how to get back to you. Thank you for doing that.I applied and was approved for the STD in advance, so what would I need to pursue that avenue? (FMLA includes an STD doesn't it?)
Employment Lawyer: Loren, Lawyer replied 3 months ago
You would have had to have filed for FMLA to be protected. Sorry.
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Customer reply replied 3 months ago
Loren,I am saying that I DID file for FMLA and it was approved before I began leave.Kathy
Employment Lawyer: Loren, Lawyer replied 3 months ago
You can sue if they violated your FMLA rights. For more information, contact the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division,
1-***-***-**** (voice and TTY) or
visit http://www.dol.gov/esa/whd/fmla.
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Employment Lawyer: Loren, Lawyer replied 3 months ago

If you have no further questions please remember to rate my service (5 Stars) so that I am credited by JA for answering your question and also so that I may close the question.

There is no additional charge to you for a 5 star rating of my service.

Thank you!

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Loren
Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 36,290
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Experience: More than 30 years in legal practice.

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