A Neophyte in Legal Land

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Status: Finished  |  Genre: Editorial and Opinion  |  House: Booksie Classic
I had never been sued nor thought about suing anyone until I had a dispute with my employer. I believed that I was discriminated against because of my age and forced out of my job. This is the story of my first and only encounter with the legal system,

Submitted: June 13, 2017

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Submitted: June 13, 2017

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A Neophyte in Legal Land

Everything that I knew about our legal system I had learned from TV or the movies, which is to say that I knew nothing about it. I had heard the stories about people suing companies for millions of dollars because some hot coffee was spilled on them, or for some other trivial matter, and had shrugged my shoulders at the thought of our ‘”litigious society.” It was all about people trying to make some easy money, I thought.  Then I became involved in it and learned how Alice must have felt in Wonderland, nothing was what it seemed to be.

My dispute was with my employer of the previous nine year. I had worked on the day shift for the previous nine years and now they wanted to transfer me to the swing shift. A much younger employee, whom I had helped train, was being given my position on the day shift.  I had diabetes and was well past seventy years of age. Working a shift from 6 P.M.to 4 A.M. was just not doable for me, for reasons that will be explained.  I had foreseen the possibility of this happening several months earlier and had tried to prevent it, to no avail. When I refused to work on the swing shift I was “summarily discharged.” 

I was both angry and confused. I had thought that I would be given a hearing by a grievance committeewhere I could state my case and show my evidence, which I had been accumulating. That never happened.  I believed that age discrimination was being used against me and that a “reasonable accommodation” was not being given to me for my diabetes as required by state law.  After consulting with my family and some friends, I decided to talk to a lawyer that one of them recommended.  He suggested that I write them another letter (I had already written a few to them) asking them to reconsider and allow me to continue working the shift I had been working.  I did this, and it too was ignored. When the day came for me to start working the swing shift I refused to, and was discharged soon afterwards. I then had to make the decision about what to do next.

I could have just retired and lived on my savings and social security benefits, that would have been the easiest thing to do. My pride would be hurt, but how important was that?  But there was more than pride involved. There was the matter of abuse to me and disregard for existing laws.  There was also something called “principle.” I had seen two of my previous supervisors and a personal friend, all seniors, treated in a similar manner and forced to leave the company, and they had done nothing about it. Now it was my turn, who would be next?  I believed I saw a pattern of replacing more experienced seniors with lower paid younger employees. Could I just ignore that?  Could I prove it? Could I afford to fight them?

About a week after being discharged I paid another visit to the lawyer. I told him about the evidence I had been accumulating in anticipation of a grievance committee hearing. After about an hour of discussion I asked him what he thought I should do.  He would not comment on the merits of my case, but said that if he were in my situation he would sue them.  I then asked him what that would cost. He said he could do it for either $250 an hour or for forty percent of any recovery, with a $10,000 retainer and me paying the necessary expenses. He recommended the latter.  I swallowed hard and took his recommendation.  More than two and a half years later, when the case still wasn’t settled, it looked like a good decision.

The first thing I had to do was get a “Right-to-Sue” in federal court from the state. This involved filling out a form stating what my complaint was and being interviewed.  My stated complaints were age discrimination, denial of accommodation, harassment and constructive discharge. The state issued me a “Notice of Case Closure” and my lawyer prepared to file the suit. The first problem we encountered was figuring out whom to sue! The Corporation I worked for was a division of another corporation and was managing a business for a third party. They all denied any responsibility. We named all of them in the lawsuit. The issue was resolved when I applied for unemployment benefits and the state named one of them as my employer.  It took five months to get to get this far. The company immediately filed a motion to dismiss the lawsuit.

My lawyer asked me to bring in all documents I had pertaining to my lawsuit. This consisted of letters I had written to them requesting an accommodation for my diabetes, copies of my work schedule showing that a newly promoted and much younger employee had been given my position on the day shift, copies of my employee reviews showing that I was highly rated by my supervisors, and letters from management, including the highest officer in the company, praising me for my work.

One and a half years after starting the lawsuit an “Early Neutral Evaluation Conference” was scheduled with a judge. I was told that the judge had the authority to dismiss the case.  I went to the conference with my lawyer and my former supervisor appeared with her lawyer. Nothing said was under oath, and no formal record was keep of the proceeding. For more than an hour we presented our case to the judge, and they presented theirs, denying everything I had written proof of, although we were not allowed to present it.  The judge then talked to them in private, and then to us. They were offering me my job back on the swing shift, period. The judge then told me that it didn’t seem that I had a very strong case, and asked me what I wanted to do. I looked at my lawyer for advice, but he couldn’t respond. The question was directed to me. I looked the judge in the eye and said, “I believe I can prove my case!”  The judge shrugged, my lawyer smiled. The case went forward.

My case was scheduled for a deposition. We received a request for a production of documents. There were 21 pages of demands for 112 documents that I had to provide copies of for the company’s lawyer to use in the deposition. The documents requested were the ones that were used to establish my complaint against the company. Some of the more interesting ones were:

Proof that I worked for the company

Proof that I met or exceeded expectations of my employer

Proof that I had received a letter from the company’s highest officer thanking me for my exceptional dedication and company loyalty.

Proof that I had received a cash bonus for being a consistent exemplary employee

Proof that I had received a citation for a perfect attendance record

Proof that I had diabetes and hypertension, and had given the company a letter from my doctor stating those conditions

Proof that I had given the company a letter requesting a reasonable accommodation for those conditions

Proof that my supervisor required me to work ten hour days due to business requirements

Proof that from 20% to 30 % of my department’s employees were authorized to leave work early

Proof that company continued to schedule me for five-ten hour days per week

Proof that I gave the company a letter stating that if I was forced to choose between my health and my work, I would choose my health

Proof that I was replaced by a person decades younger than me that had less than half my experience

I provide all of the documents they requested, and a date was set for my deposition. It lasted for two eight hour days! I had no concept of what a deposition was. My lawyer had simply told me not to worry about it, that I would do fine. It turned out to be like being on a witness stand for eight hours, with the prosecutor able to ask you any question he liked, and your lawyer only being allowed to make an occasional objection for the record. First the video cameraman pins a microphone to you. Once the tape is rolling you are sworn in by the court reporter, who will make a record of every word, grunt or whatever come out of your mouth. Then the company’s lawyer does everything in his power to make you destroy your case. He will ask you a question, get your answer, and then ask the same question several hours later or the next day, trying to get even a slighter different answer to use against you. You have to be constantly on you guard and have a solid grasp of your facts in order not to contradict yourself. It is a tedious process that leaves you tired and drained.

After being terminated I had applied for unemployment benefits while I sought another job. By the time of my deposition I had filed more than two hundred applications on line. When I testified to that fact they didn’t believe me and asked for proof, which I provided. They repeatedly went over my health records. They had deposed two doctors that had treated me, and had copies of my medical records from them. They asked dozens of questions about my diabetes, wanting to know how often I took insulin, how much, what did I eat, where did I eat it, when did I eat it, and so on.

The most rigorous questioning concerned my claim that I was discriminated against because of my age. During my last month of employment with the company I had helped to train a young woman to be able to do the job I had been doing for the past nine years. I had encouraged her to apply for the position when it was announced that there was an opening for it. She was hesitant, because she didn’t want to have to work on the swing shift. I believe that the increase in pay convinced her to apply for it. She was capable and was promoted to the position, and this promotion was announced in the company newspaper, with her photograph and a short article about her. On the last week that I worked, she was scheduled in my place on the day shift and I was transferred to the swing shift. In my mind the company was discriminating against me. I had worked for the company more than twice as many years as she had, I had received many awards and accommodations, several bonuses and pay increases, and had been highly evaluated by my supervisors in the past. I couldn’t understand why she was being given preferential treatment over me. I strenuously objected to everyone that I thought could overrule my shift change, but no one would. When I refused to work the swing shift I was terminated.

Now their lawyer was claiming that no age discrimination occurred! In discovery I had provided copies of my department’s work schedules for the last few months I had worked. They indicated exactly which hours she and I had worked in that time period and what our positions had been. They showed the days I had been training her and the days she had worked at the promotion level, with full responsibility for that position. Still the lawyer insisted that this didn’t mean that she had replaced me.

A few months later a “Mandatory Settlement Conference” was scheduled. This was my last chance to settle my claim without going to court. My lawyer had informed me that going to court could cost as much as eighty thousand dollars, and that there was no way to be certain that a jury would vote in my favor. That eliminated that option for me. We would have to negotiate the best deal that we could.

They offered to give me back my job on the swing shift, I refused. We asked for a sum of money, they refused. Our lawyers met with the judge, each pleading their case. My lawyer and I met with the judge, she didn’t think I had a very strong case. I mentioned the age discrimination, the newspaper article showing her background and experience. I talked about the schedules showing that she had replaced me. The judge said that the newspaper article wasn’t evidence, and the schedules didn’t prove that she had replaced me. 

The lawyers met again to try to work out an agreement. They made a minimal cash offer. My lawyer was obligated to present it to me, and I refused it. I am an experience poker player, and I sensed that they were bluffing. My ace in the hole was my belief that they would not want the adverse publicity that my case would bring them if I made it public. I was aware that the company was planning to make a public offering of its stock in the near future, and they would not want any negative publicity at that time. I mentioned that to my lawyer and told him I wanted the equivalent of two year’s salary. After much back and forth they agreed, with a catch. State law allowed them to deduct the money I had received from unemployment benefits from their settlement!

I now realized exactly what the expression, “I won the battle but lost the war” meant. I had risked thousands of dollars and dedicated two and a half years to this lawsuit. My net gain was less than a year’s pay. Was it worth it? Financially, no.  Morally, yes. I felt vindicated. Their cash settlement was proof to me that my claims were valid. They wanted me to “go away”. 

I learned first hand that the “justice system” wasn’t about justice, but about the law. There have been many well publicized cases where the law was followed but justice wasn’t served, but it is one thing to hear about them and another thing to experience it. 


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