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Age Discrimination in Job Search and the Workplace

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Age Discrimination in Job Search and the Workplace

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Have you experienced age discrimination? Laurie McCann is a Senior Attorney with AARP Foundation Litigation where her principal responsibilities include litigation and amicus curiae (impartial advisor) participation for AARP on a broad range of age discrimination and other employment issues.

 

Ask AARP Expert Laurie your questions about age discrimination, and share your experience.

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I recently had an experience where a recruiter sent me a job offering with the statement that:

 

Registration as a P.E. is preferred (5-20 YEARS EXP MAX)

 

I thought this was a blaintant case of age discrimination, and started to read up on what is current. The 7th court in Chicago was about to rule on a case for a lawyer who was denied onsideration for employment due to a statement about his experience being more than the maximum that the employer wanted for the job. The explaination was that the jobseeker with too much experience woud leave the job because they were overqualified. I have heard this overqualified phrase alsmost as much as the 'we have decided to go a different direction that would save the company money' when a 'junior' engineer was elevated without all of the qualification listed in the job advertisment.

 

Today that same recruiter contacted me again, and as if I had any interest. I saw that the same 20 year max exp' phrase was listed. I wrote back to them stating that their policy was in violation of the ADEA, and Florida law, and that their practice was hostile and offensive.

 

I also saw that the case before the 7th had a ruling in April:

 

“We hold that (the ADEA) protects both outside job applicants and current employees,” said the 7th U.S. Circuit Court of Appeals in Chicago in a 2-1 ruling in Dale E. Kleber v. CareFusion Corp.

“That is the better reading of the statutory text. It is also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes,” said the ruling.

 

Can this kind of discrimination continue in light of this ruling? What can I do to take a stand?

 

D.R Iserman PE

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AARP Expert

Hello @di9363, I am one of the attorneys that works for AARP Foundation Litigation and I am my colleagues are counsel for Mr. Kleber in the Kleber v. CareFusion litigation in the Seventh Circuit. We believe that the job description you encountered is discriminatory. Did you apply for the position? The action you should take is to file a charge with the Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces the ADEA.  You should file the charge on behalf of yourself and all others similarly situated and you should make sure that you say that you belief the maximum years of experience requirement discriminates against you - and that it has a disparate impact on all older workers.  I am happy to help you with this if it is something you want to pursue.  Please don't hesitate to contact me directly at lmccann@aarp.org.

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@di9363 wrote:

I thought this was a blaintant case of age discrimination, and started to read up on what is current. The 7th court in Chicago was about to rule on a case for a lawyer who was denied onsideration for employment due to a statement about his experience being more than the maximum that the employer wanted for the job.

 

. . . . . I saw that the same 20 year max exp' phrase was listed. I wrote back to them stating that their policy was in violation of the ADEA, and Florida law, and that their practice was hostile and offensive.

 

I also saw that the case before the 7th had a ruling in April:

 

“We hold that (the ADEA) protects both outside job applicants and current employees,” said the 7th U.S. Circuit Court of Appeals in Chicago in a 2-1 ruling in Dale E. Kleber v. CareFusion Corp.

“That is the better reading of the statutory text. It is also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes,” said the ruling.

 

Can this kind of discrimination continue in light of this ruling? What can I do to take a stand?

 

D.R Iserman PE


WE now have (2) courts with completely different rulings - It seems headed to the SCOTUS -  Here is the update -

 

Society for Human Resource Management May 10, 2018 - ADEA’s Reach Expanded to Job Applicants - Supre...

 

For years the Equal Employment Opportunity Commission (EEOC) has advised that the Age Discrimination in Employment Act (ADEA) applies to job applicants in disparate impact cases, but a 2016 appeals court decision ruled otherwise. Now, another appeals court has reached the same conclusion as the EEOC's, creating a split the Supreme Court may have to resolve.

 

In Kleber v. CareFusion Corp., the 7th U.S. Circuit Court of Appeals ruled on April 26 that the law prohibits employment practices that have a disproportionately adverse impact on older applicants, although the ADEA's disparate impact provision refers just to employees. Relying on this statutory language, the 11th U.S. Circuit Court of Appeals held in the 2016 Villarreal v. R.J. Reynolds Tobacco Co. decision that the ADEA does not make disparate impact claims available to applicants.

 

The employer in the 7th Circuit case said its seven-year experience cap for an attorney position was necessary, as someone with more experience would be dissatisfied with less-complex duties. Without ruling on the merits of this defense, the appeals court addressed the company's claim that the ADEA doesn't make disparate claims available to applicants. The court determined it would be illogical for the ADEA to allow disparate impact claims by current employees, including internal job applicants, while excluding outside applicants.

 

Laws are complicated and sometimes it takes years and years of back and forth to get the kinks worked out.  The ADEA gives employers some very specific ways out and how they can prove it. 

So now, the arguement seem to be whether it only covers employees or whether applicants are covered as well - thus it seems that since (2) courts have had opposite rulings - it will be up to the SCOTUS to review the cases, hopefully sooner than later.

 

It's Always Something . . . . Roseanna Roseannadanna
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@GailL1, thanks for all the good info!

The employer in the 7th Circuit case said its seven-year experience cap for an attorney position was necessary, as someone with more experience would be dissatisfied with less-complex duties.

 

How do they know that a person with 6 years will be more satisfied with boring work than 8 years experiance?  I am sure it is a factor but not likly it is the most important factor.

 

How doH

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@RonMesnard wrote:

@GailL1, thanks for all the good info!

The employer in the 7th Circuit case said its seven-year experience cap for an attorney position was necessary, as someone with more experience would be dissatisfied with less-complex duties.

 

How do they know that a person with 6 years will be more satisfied with boring work than 8 years experiance?  I am sure it is a factor but not likly it is the most important factor.

 

 


Think you might be trying to simplify a law - ha, ha , ha - the two words don't even belong in the same sentence.  You see something one way and another sees it different.

 

It is much more complicated than just this, although their reasoning does have to have at least some basis.  Here is the EEOC FAQ page on Questions and Answers on EEOC Final Rule on Disparate Impact and "Reasonable Factors Other Than Age"...

This is a very interesting read and interprets the ADEA in more practical terms as to what it was for and who it protects - describing both the employer resposibilities in fairness and consistency  and employee protections.

 

What will most likely go before the SCOTUS are the many details discussed in this EEOC FAQ especially determining if an (outside) job applicant has standing here - the law really wasn't written for them -  (outside) job applicants - at least that seems to be much of the discussion in these (2) cases.

 

Much of the issue between these (2) cases involve what is called "disparate Impact" - defined legally as:  A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.

read much more here:  https://legal-dictionary.thefreedictionary.com/Disparate+Impact

 

I am a novice but as I interpret it - 1st the (2) cases differ in the "WHO" -

  • Do ( outside) job applicants, in this case, have the same standing as a current employee who might be applying for the same job, relative to tyhe ADEA.
  • OR, in this case, is an (outside) job applicant considered to be a protected class relative to the ADEA. 

Then is there a basis for RFOA - Reasonable Factor Other than Age - which the EEOC discusses. at the same link.

 

Read the EEOC FAQ link for Disparate Impact and "Reasonable Factors Other Than Age" Under the Age Discrimination in Employment Act of 1967 and then see if you can answer your own question - think it starts about question #8 describing employment practices and how they are measured in this regards. 

 

Ain't Law Grand - Simple, NO WAY ? ! ? ! ????

 

 

 

 

 

It's Always Something . . . . Roseanna Roseannadanna
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To di9363:

 

> I wrote back to them stating that their policy was in violation of the ADEA, and Florida law, and that their >practice was hostile and offensive.

Did they respond? Did you tell them about Chicago.

Good for you! THIS is what we need to start doing. For example, if I'm asked what year I graduated college, I state I'd rather not say. If they press as to why, I say, "Because I want to avoid being judged by my age."

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Did the EVER work for you? That NEVER worked for me.
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Has that EVER worked for you?  It never worked for me. Neither did making trouble.  Then I just started to bold face lie.  That worked pretty well. I didn't always get the job but I ALLWAYS got an interview. Interview practice is an end goal especially when you do heavy analysis of the interview process.  What work the best, well and not so well. These are then added to my notes. What failed me in an interview a decade ago helped me land a current job because I didn't repete that mistake. 

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@di9363, when even the courts are against you what can your do?  Julie thinks we are too feeble to fight but I say I am too smart to fight.  I got this job at 67 by lying about my age so I just go with what works.  They don't like hiring even 60 year olds to program computer software but my referance was that I walked on water from GOD. My reference was from the head of NOAA's IT division.  Federal agencies that are mostly scientists, engineers or lawyers have a much higher standard than most federal agencies. It was that I was so over qualified that I saved their project.  I didn't follow instructions I did what was right. Instead of making the changes I was supposed to make I did re-writes of most of the software I touched.  As a result, my software was nearly bug free while rest of the programmers had bugs on top of bugs. I did 67% of all the software changes on a 5 man team and had the least number of bugs. This was the new global warming database that Obama wanted.  If we were late, he would have known about it.  The only reason it wasn't a few months late was I was super over qualified!   

 

As far as being OVER qualified.  There is no such thing.  The OVER qualified person can solve problems beyond what a qualified person can solve.  How is that a bad thing?  They claim that MAYBE you might get board with what you are doing.  If that happens fire them!  When I am looking for a surgeon I want someone with as much expericance as I can find.  Being afraid that he will get board during my operation doesn't cross my mind.   

 

That it really is is a BS excuse to hire someone who is 'too smart'.  No manager in their right mind wants to hire someone under him that could do his job better than he can while sleeping.  Stupid managers are forever screwing up so he needs working who he can blame.  Older persons usually know how to cover their asses better than someone as green as grass.  Managers feel secure to have mostly gullable fall guys working for them.  They will take the blame for their mistakes because they don't realize all the possibile outcomes so they don't cover their ass like an experianced person. The young are just egar to please.   

 

If I had a voice I would demand to get a listing of situations where being over qualified became an issue.   I would say how many years before a judge is over qualified.  The real answer is none just like any position. How can knowing more be a detrement?

 

I would apply showing I have less than 20 years experiance.  Resumes usually don't go back more than 15 years anyway.  Experts claim stuff older than that is irrevelant because stuff has changed since then. Of course experts can say anything and some will believe. A company this blantent ought to be easy to sue if they try to fire you after the fact.  I realize working for morons/baboons is better than sitting on the bench.   You just try not to vomit while on the job.

 

Good luck! 

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Age discrimination is the same as race discrimination.  You know it is happening, but there is no recourse unless clear evidence is available.  University educated and many years of experience will not help in finding a position that pays more than $14 an hour.  Young people with that kind of education and experience have an easy time landing salary positions with $20 an hour.   AARP has still a lot more work to do.

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>AARP has still a lot more work to do.

With all due respect toward what AARP does well, I completely agree with you. On the matter of age discrimination, AARP should be out there like the NRA fights for gun enthusiasts. I just don't see that happening at this time.

I wish I could see/know what AARP's top priorities are somewhere. As in statement of purpose followed by internal list of exactly, specifically what it's spending its time and budget on.
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AARP Expert

Age discrimination is - and has always been one of AARP's top's priorities. We have advocated on behalf of every significant amendment to the ADEA and we also file friend-of-the-court (amicus curiae) briefs in important age discrimination cases in state and federal appellate courts and especially the U.S. Supreme Court. We also directly represent individuals in cases that we believe we set precedent for age discrimination victims in addition to the plaintiff(s) in the particular case.  An example is the Kleber v. CareFusion case that has been discussed in this discussion where AARP Foundation attorneys represent Mr. Kleber in his challenge to a maximum years of experience requirement. We also strive to educate the media, the public and other attorneys about the ADEA and age discrimination and held several significant events to celebrate the 50th anniversary of the enactment of the ADEA last year.

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Thank you for the response.  Where's a good site to keep up with progress in lawsuits about age discrimination.  I hardly ever see such suits covered in the news.  Is the problem underreporting, or is there little to report?

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I've got a no brainer with the Florida Department of Transportation. Please directly represent me. It's really clear cut and could help many in the future. It's too late to help me as I thought their internal process would hear me out, but it didn't. All emails are public record and I'm sure you could get them when I couldn't trying to represent myself. I wasn't even able to access my own emails to present my case unless I paid for processing and had to specifically identify every email I wanted. If you want to win a case for age discrimination, win mine.

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I agree... all they want is money to pay their execs... I'm really disappointed in AARP... I have the perfect case for discrimination and they haven't even reached out to me... It's all about the money...

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@perryj165369, They don't WANT money they need money to stay in business just like you need money to live. I don't like trivializing anyone/thing trying to survive.  That is an important truth in life.

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uh.... so you think AARP taking seniors money is a good business model? OK

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@perryj165369, if you were asking me.  I figure we are all old enough to know how to spend our money.  I am a bit hard on AARP because I think they could do a good deal better but at least we have some orginazation who feels kindly twards old people. We need that!  If you are on medicare, their supplimental is one of the best for the buck.  Dues is insignificant and is easly swallowed by health care savings or going to the Outback twice.

 

What is your beef?

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@perryj165369 wrote:

I agree... all they want is money to pay their execs... I'm really disappointed in AARP... I have the perfect case for discrimination and they haven't even reached out to me... It's all about the money...


I don't think they reach out to you - much like any other court case, it is up to the person to find legal counsel and tell their story, presenting proof of the facts,

to see if there is grounds for a complaint.

 

Have you tried reaching out to them?

AARP Foundation - Legal Advocacy - Litigation - Our Work

 

Remeber . . . . If it is to be, it is up to me.

 

 

It's Always Something . . . . Roseanna Roseannadanna
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@JulieK260428 wrote:
>AARP has still a lot more work to do.

With all due respect toward what AARP does well, I completely agree with you. On the matter of age discrimination, AARP should be out there like the NRA fights for gun enthusiasts. I just don't see that happening at this time.

I wish I could see/know what AARP's top priorities are somewhere. As in statement of purpose followed by internal list of exactly, specifically what it's spending its time and budget on.

Rights enthusiast who march, protest, rant and rave, seek media attention to matters by their voice and actions, etc. only give one side of the issue - the other side does their own of the same sometimes.  They don't actually fix anything, they just get possible attention.  Any actual fix is done in the Courts.

 

The AARP Foundation - Legal Advocacy supports cases in Courts at all levels to change laws which meet their advocacy positions.

 

AARP Foundation - Legal Advocay - Litigation - Our Work

 

It is a long process and sometimes it is not very clear as to what is the right way because the decision involves weighing the right/wrong from each side involved in an issue but that is our form of governing.  Laws and rules made to support these laws and the actual interpretation of them have to be measured from both sides - that 's why we have Court cases of every type, criminal and civil.

 

Again, it is in the Court hierarchy where the battles are won and lost - the issues move up in the Courts, getting a conclusion at some point or ending at the SCOTUS if they decide to take the case.  You can follow all of these cases at the above AARP Foundation - Legal Advocacy link.

 

 

 

 

It's Always Something . . . . Roseanna Roseannadanna
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>Rights enthusiast who march, protest, rant and rave, seek media attention to matters by their voice and >actions, etc. only give one side of the issue - the other side does their own of the same sometimes.  >They don't actually fix anything, they just get possible attention.  Any actual fix is done in the Courts.

 

Disagree.  Protest is exactly how issues get onto the public's radar.  Just look at the #meToo movement and the Florida school shooting efforts.  Have they solved the problem completely? No, but that's too much to expect of them.  Instead they get the causes out there for discussion everywhere and the courts then MUST listen.  Witness the CA judge recently voted out of office for going easy on sentencing of a college kid found guilty of rape.   The school shooter protests have gotten some incremental change in Florida where pretty quickly the state raised the age to buy a gun to 21.

 

Try telling the '60s civil rights protesters that protest doesn't "actually fix anything."  It's one of the few things, if done right, that DOES change things. 

 

Besides, we have the right to protest.  It's the way people all over the world make their voices heard.  If it "didn't work" people would have stopped protesting long ago.

 

 

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@JulieK260428 wrote:

>Rights enthusiast who march, protest, rant and rave, seek media attention to matters by their voice and >actions, etc. only give one side of the issue - the other side does their own of the same sometimes.  >They don't actually fix anything, they just get possible attention.  Any actual fix is done in the Courts.

 

Disagree.  Protest is exactly how issues get onto the public's radar.  Just look at the #meToo movement and the Florida school shooting efforts.  Have they solved the problem completely? No, but that's too much to expect of them.  Instead they get the causes out there for discussion everywhere and the courts then MUST listen.  Witness the CA judge recently voted out of office for going easy on sentencing of a college kid found guilty of rape.   The school shooter protests have gotten some incremental change in Florida where pretty quickly the state raised the age to buy a gun to 21.

 

Try telling the '60s civil rights protesters that protest doesn't "actually fix anything."  It's one of the few things, if done right, that DOES change things. 

 

Besides, we have the right to protest.  It's the way people all over the world make their voices heard.  If it "didn't work" people would have stopped protesting long ago.

 

 


NEW Laws come from a governing body - Congress at the Federal level, so, yes protest, rant and raves, media attention might direct them to work on a new law but that too has to go through a process and then it could still be challenged in a Court of law by somebody bringing a court action.

 

If a problem involves a law change or modification, somebody still has to take it to Court for the law to be scrutinized.  It may have to go all the way up to the SCOTUS as our Court system hierarchy works.  A case has to set a precedent* for the laws interpretation and all the justified appeals have to take place.

 

Precedent. In common law legal systems, a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other legal body to rule along these lines for cases going forward.

 

Like I said, protest, media attention, rant and raves on either side, or both,  of an issue can bring and keep focus on an issue but if it involves a Law, then their has to be action via a case in the Court system.

 

Just like one of the issues we are talking about here - the law, the ADEA, has been and is being challenged by not employees but applicants for employment and what might be the standard for a potential employers to set as a maximum line of experience.

 

Since there most times two sides to every story or two participant classificatns in each challenge, each with a point of view, there has to be a ruling by the Courts as to what is fair and just when a challenge to a law is made.  It is not always just a black and white or right or wrong issue - lots of grey area.

 

How else could it be done when challenging a law or even part of a law that is already on the books?

It's Always Something . . . . Roseanna Roseannadanna
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Gail:

 

I already knew and understood your repetition of information about "it has to go to the courts" and "precedent" and all that.  Most of it is basic Civics 101. Please don't patronize me and others on this board. Most of us are well educated and already understand how courts work. Of course I agree with your explanatory statements of fact about how the U.S. legal system works. 

 

What I disagree with is the assertion that "Protest doesn't work."  Immediately, you're correct: It doesn't usually work if the goal is immediate change.  What protest does accomplish is giving an issue publicity and traction so that (hopefully) enough people (especially those with the power to do something) urge legislators to change things or to bring lawsuits themselves.

 

Protest lights a fire under people to get them to care enough about something so they can DO something about the problem.  But if you want instant gratification, you're correct: Protest doesn't typically do that.  Still, that's no reason for anyone to sit at home on their **bleep** and gripe without doing anything. 

 

 

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Protest only works if the news decides to cover the story. Guess what. The news doesn't want to cover a story about age discrimination. So go ahead an protest all you want. No one will hear you.... This country is screwed. We have seen the best of America in ourt times. I have my doubts if it even makes another 10 years..

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AARP Expert

Although it's not a panacea, the press does do a fair amount of stories about age discrimination and older workers.  I am one of the attorneys with AARP Foundation Litigation (AFL) and we recently received great coverage of the settlement of one of our litigation cases.  We represented two Ohio State employees who sued the university after they suffered egregious age-based harassment and were ultimately terminated. See http://www.dispatch.com/news/20180613/women-who-sued-ohio-state-for-age-discrimination-hope-others-b.... Hopefully, the press coverage this case received (the New York Times had done a previous story about the case) will help in deterring other employers from acting similarly.

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@GailL1, I can dissagree.  MLK got it right.  The 60s protests were so effective because they were non violent.  TV had cops beating the protesters that were just stating a point.  That created huge sympathy for the cause.  Most of the US abhore violance.  Violent protests generate at least as much backlash as support.  Violance is a sign of crazy and unhinged. The crazy just don't get that because they are crazy!

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AARP does nothing except ask for donations...

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At 63, I applied for a promotion to a supervisory position within a state agency a couple years ago. At the time, I also had a severely arthritic hip that needed replaced, and had to walk with a cane. I didn't get the position and was OK with it. When I asked if another person that I knew had applied for the postion was selected, the hiring manager said, "no, he wasn't a fit for our team" and told me the name of the person that was selected. After introducing the new supervisor, they terminated the person after one day for falsifying his application. A few weeks later the hiring manager again called me into her office, telling me I wasn't selected. She told me the person she selected was the one I had asked about during the initial selection. I then mistakenly asked her about previously saying he "wasn't a fit for our team" and how he now became a fit. She became very defensive and stated she had him in for another interview. I inquired why I wasn't afforded another interview and what were wrong with my qualifications. I had over 25 years experience in IT and even my first review when I had when I worked under this hiring manager stated I was the best ever to hold that position in the history of the district. She became very defensive and ultimately said it was her decision.

 

Anyway, to make a long story short, I received a surprise written reprimand within 3 weeks. The manager almost quit all communication with me except to "correct" me. I was ordered to stop developing a test environment per the project plan and made to given unrealistic estimates of when it would be ready for production. Team members were told not to come to me as a resource because I was "too busy" effectively ostracizing me. Work that I had loved became a living hell but I kept telling myself I was only a short while from full retirement.

 

I was again given a written reprimand, in which one of the charges was overturned because it plainly wasn't true and the other two charges were false also, but I couldn't prove them in grievance. One of the other charges was for being late returnng from my morning break because it took me too long to used the elevator to go downstairs, get a snack in the breakroom, maybe use the bathroom on some days and filling my coffee cup up within 15 minutes from my seat and back. No one else was even being monitored on their breaks. They were just trying to make me miserable and were succeeding.

 

Within a month after returning from my hip replacement surgery, I was again called into the supervisors office and this time I had a panic attack when being accused. I guess after not being allowed to explain myself, I just started repeating, "OK, it's me, can I leave now" over and over. They finally called HR to come where I left with the HR person and had enough and asked her to help me fill out a discrimination and retaliation complaint. A week later I was terminated for violence in the workplace... I just couldn't make that last year though and had to retire and 65, losing $100 a month for however long I live...Great memories....

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Violence in the workplace?  Repeating yourself over & over is "violence"?  Something is missing here.  Please help me understand this. Tks.

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@perryj165369, this happens all the time.  Did you have a union?  That is a good time to be a union member.  If you are fired in Maryland you must go in front of the labor board to review your case before you can get unemployment.  Maryland has a lot less of this crap.  You would have likely gotten some satisfaction.  You might have gotten your job back plus payment for your time off.  The more common your agency has come to the attention of the labor board the greater your satisfaction is. They punish the company responsible then give the benifit to the employee wrongfully fired.

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