How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Patrick, Esq. Your Own Question

Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6250
Experience:  Significant experience in all areas of employment law.
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

A new director/professor took over at the Berkeley Seismo Lab

Resolved Question:

A new director/professor took over at the Berkeley Seismo Lab August 1 of last year. During the first two conversations after assuming the position, he said to me directly -"we have too many people here with grey hair." After the second incident, I reported this to three people in the Univ HR dept. I subsequent conversations, he said that "I made too much money..."

In December, I took two weeks off to attend to my mother after she had a stroke. The director noted in my review that he felt I could have gotten more project work done.

Last month I hurt my shoulder while at work. I reported it to HR and have gone the the Occupational Physician who sent me for physical therapy.

Today, I was formally notified that my position would be eliminated and I was laid off off effective July 5.

Thank you for your insight.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question. I am so very sorry to hear that your position has been eliminated and that it appears age may have been a factor in that decision.

In the state of California it is illegal to discriminate against an employee on the basis of he or she being more than 40 years of age.

You should know, however, that proving discrimination can be very difficult to do, as there is rarely "smoking gun evidence" of discriminatory intent (i.e. a letter from the employer saying I'm firing you because your too old). Furthermore, the U.S. Supreme court held in Gross v. FBL Financial Services, Inc. that a plaintiff claiming age discrimination always bears the ultimate burden of proving age was the “but for” cause of the adverse employment decision.

So, not only would a plaintiff have to prove that age was a motivation, but that the adverse employment action would not have occurred but for the plaintiff's age.

In a case such of yours, it may be difficult to satisfy the above-stated burden of proof if your employer can demonstrate that there was a legitimate financial need to eliminate your position. However, if this can't be shown, or if other people in siminal positions were spared with less impressive credentials, then a valid cause of action for age discrimination certainly may exist.

I think the case would be much stronger if older employees were disproportionately more affected by the layoff. For example, if 30 employees were layed off and 20 of them were over 50 but those over 50 only made up 20% of the organization, that would tend to indicate a discriminatory motive. You may want to check around to see how many other older employees were laid off with you.

In general, an individual who believes he or she has been the subject of unlawful discrimination and wishes to file a lawsuit must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue an authorization to sue after they investigate the claim. A claimant need to file with both agencies. Finally, if an individual in your circumstance decides to sue, they must not miss their deadline. Under federal law in California, a claimant has 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

So to summarize, while a valid cause of action for age discrimination certainly may exist on the facts described, it may be difficult to prove given the ruling in Gross v. FBL Financial that the plaintiff prove age was the "but for" cause for the adverse employment action. If older employees were disproportionately affected by the layoff, that would tend to bolster any allegation of discriminatory intent.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 1 year ago.
I am the only person affected by this layoff. Does that qualify as disproportionately affected
Expert:  Patrick, Esq. replied 1 year ago.
That certainly makes it sound less like a layoff and more like a firing concealed as a layoff, since layoffs typically target groups of employees at a time.

If you file a claim with the EEOC or DFEH, they will investigate this matter to determine whether legitimate financial reasons existed to eliminate your position. It may be wise to pursue that course of action, but of course you must decide how to proceed.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
Patrick, Esq., Lawyer
Satisfied Customers: 6250
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
< Last | Next >
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    886
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    886
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    771
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    282
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    2804
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    17
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.