Q: I have been a casualty of retaliation and age discrimination. (I am a 54 year old Asian female, Scientific Professional.) I was terminated from a large company in March, 2008 after four years of employment and lost nearly $30,000 vested benefit due to termination. The Massachusetts economy has gotten worst since then and I am still unemployed and looking and have lost all hope. I just want my reputation and possibly my job back. This company is always hiring. What is your advice for me to get my job back or any lawsuit possibilities?
A: I am sorry that you have lost your job. The current economic climate has created a very challenging environment for many workers across the US. There are some early indicators that the job market is improving. Many experts are forecasting a recovery in early 2010. Hopefully the worst is over.
Based on the facts you have presented, I was unable to determine whether or not you were discriminated or retaliated against by your former employer. I contacted Jeffrey A. Dretler, Esq., a partner in the labor and employment group at Prince, Lobel, Glovsky and Tye LLP. He explains: “If you believe you were discriminated against, there are several options available to you, however, some of them may be foreclosed due to the amount of time that has elapsed since the termination of your employment. State and federal law protects workers who are age 40 or over from age discrimination as well as from retaliation for having engaged in what is referred to as ‘protected activity.’ Protected activity includes such things as making a complaint of discrimination to your employer or testifying in a proceeding before a state or federal agency concerning discrimination alleged by you or someone else. Workers who believe they are been victims of discrimination or retaliation may bring a charge of discrimination with a state or federal agency responsible for enforcing anti-discrimination laws. In Massachusetts, the state agency is the Massachusetts Commission Against Discrimination (MCAD) and the federal agency is the Equal Employment Opportunity Commission (EEOC). You may contact either of those agencies with or without a lawyer to pursue a claim. In most circumstances, however, in order to bring a charge of discrimination with either of these agencies (which is a prerequisite to pursuing a discrimination claim in court), you must file a charge within 300 days of the most recent discriminatory act. Assuming that the termination of your employment in March, 2008 was the most recent discriminatory act, you will most likely be precluded from bringing a discrimination claim against your employer because more than 300 days has passed since that time. There are certain circumstances, however, where the statute of limitations may be “tolled” or extended, and you may wish to contact the MCAD, EEOC or a competent employment attorney to determine if any special circumstances apply to your situation.”
Although quite a bit of time has passed and the time limits, as described above, may curtail your ability to pursue a claim with MCAD or the EEOC, Dretler offers, “There may be other claims that you can assert in court or in a state or federal agency that are based on common law (e.g., breach of contract, wrongful termination) or other statutes. For example, you state that you believe you were wrongfully denied $30,000 in vested benefits due to the termination of your employment. If the vested benefits to which you are referring are retirement benefits, you may be able to bring a claim for violation of the Employee Retirement Income Security Act of 1974, as amended (commonly referred to as ERISA).”
Because a significant amount of time has passed, being reinstated to your former role with your former employer is probably not a likely outcome. Since your former employer is hiring, you may wish to consider applying for any open positions for which you are qualified. Dretler further explains, “If you are not considered for the position or are not offered the position, and you believe that the reason is discrimination or retaliation for previously engaging in protected activity, you may have a new and timely cause of action.”
One point of caution from a practical (rather than a legal standpoint) – do you really want to return to a place of employment that you felt treated you so unfairly? It seems that pursuing other opportunities for employment may be a worthy option to consider.