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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7115
Experience:  Significant experience in all areas of employment law.
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If I file a suit with the EEOC, how do I protect myself from

Customer Question

If I file a suit with the EEOC, how do I protect myself from subtle retribution in the form of, say, when I and where I am scheduled: we have three shifts and three locations? For the last year I have worked from 6:00 AM to 2:00 PM at a site that is 6 minutes from home. They have already started to change my schedule by moving me to a work location that is farther from my house—approximately 16 minutes from home—and have put me on the less desirable swing schedule, 2:00 PM to 10:00 PM. As my wife is insulin diabetic, these changes cause me a concern. Management knows of my wife’s condition. I realize that these changes may not seem like much, but when you are dealing with a “brittle” diabetic, the extra 10 minutes can mean a lot if I need to get home. Also, during the day, my wife is at work and her co-workers know about her condition and what to do if she runs into trouble.

Also, they have begun a campaign of trying to discrete my work performance my making public through Emails to my co-workers, the appearance that I am not performing up to standard. They have not named me directly but have instead mentioned my shift and the location I have been at when a supposed infraction has occurred. I say “supposed infraction” because in the first case, they did try to give me a write-up but I was able to defend my actions and it was put aside with no signature requested. Regardless, I did insist that my written account be put in my file. In the second case, the “supposed infraction” was only mentioned in a group Email and I was never approached personally. However, it was so obvious who they were referring to that I had three co-workers call me and ask what was going on.

Lastly, it has been pointed out to me that even if I were to win a judgment, that most likely I would be required to voluntarily resign my position to receive a settlement. As I am 60 years old, the possibility of finding other employment is unlikely.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello, I'm sorry to hear about your situation and hope I can help.

You would have an additional cause of action against your employer for retaliation if you are subject to any form of retribution for filing a complaint with the EEOC.

You could add a complaint for retaliation on top of the complaint for discrimination that you have made.

You would not be required to voluntarily resign your position in order to receive a judgment or a settlment, and can continue to work if you were to receive either a settlement or a judgment.
Joseph, Lawyer
Satisfied Customers: 5035
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 1 year ago.
Thank you again for your inquiry.

Unfortunately, there is no easy way to guard against such subtle forms of retaliation. The best thing to do is typically create records of your own. Any time that you are accused of wrongdoing, maintain adequate records to prove (should it become necessary in the future) that there was no basis for the attack.

Furthermore, it would typically be very helpful in proving that these attacks are retaliatory if your personnel file prior to your EEOC filing did not reveal similar performance issues. Circumstantially, this will indicate that your EEOC claim, and not something else, is the true motivation for your treatment.

California law actually requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. (Labor Code Section 1198.5) Inspections must be allowed at reasonable times and intervals.

Accordingly, it may be wise to request a copy of your personnel file so that the chronology of your discipline and its relationship to your EEOC filing are more clearly understood.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7115
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Is there anyway to request you to answer my questions or is it simply the luck of the draw?

Expert:  Patrick, Esq. replied 1 year ago.
Yes, you can request me. To do so, simply begin the subject line of your question "For Legalpro54" and the question will be reserved for me to asnwer.

I look forward to assisting you in the future.
Customer: replied 1 year ago.

  1. What is the best way to ask to see my file without raising too much suspicion?

  2. There are two other employees that are over 50 that were also passed over for promotion. The two employees mentioned are friends of my immediate supervisor. Does this help or hinder my case?

  3. Lastly, if one of the above mentioned employees is promoted over me, does this hurt my case? They both have less seniority than me and their records could not be any better than mine.

Expert:  Patrick, Esq. replied 1 year ago.
Sorry for any confusion here. I did not initially realize that another expert provided an answer to your question prior to me. To be clear, are you now requesting me or the original expert who responded to answer this question?
Customer: replied 1 year ago.

I was directing my question to you, LegalPro54. I look forward to your answer.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your reply and clarification. Let me address your inquiries as follows:

What is the best way to ask to see my file without raising too much suspicion?

There really is no way to go about doing this without raising an eyebrow. The law permits personnel file requests to be made in writing or verbally, and so the only thing I can say is that a verbal request may seem a bit less aggressive and litigious.

There are two other employees that are over 50 that were also passed over for promotion. The two employees mentioned are friends of my immediate supervisor. Does this help or hinder my case?

If your supervisor had the authority to decide or influence the decision of who was going to be promoted, this may hinder your case, since it tends to undercut your argument that passing you up was discriminatory and not based on other, legal factors. A jury may reason, "if it was discriminatory, why did two friends of the supervisor, who presumably would have received MORE favorable treatment, get passed up as well?"

Lastly, if one of the above mentioned employees is promoted over me, does this hurt my case? They both have less seniority than me and their records could not be any better than mine.

What you need to demonstrate in any case for discrimination is that you were passed up on the basis of a protected characteristic and NOT some other factor. When employees are promoted over you and that promotion is explainable by legal motives, such as superior qualifications, that will be problematic. If the qualifications of the other employee are simply "not any better," well that's not going to help very much. However, since you state that they had less seniority, that is helpful.

I hope you appreciate my honesty in telling you that cases alleging discriminatory motives for failure to hire or promote are very hard to win, absent "smoking gun" type evidence. This is because employers enjoy broad discretion to hire and promote as they see fit. Just because an employer doesn't make the best decision doesn't mean that the employee who lost out has a claim for race discrimination by virtue of being of a different race, for example.

Strong evidence that an employee's protected characteristic was the basis for getting passed up is typically required, and so while the fact is that another employee may have been less senior and got the promotion, this on its own would ordinarily be insufficient to prevail on a discrimination claim.

This being said, I do not know all the facts of your case, and so I don't mean to assume that you don't have additional evidence as well. However, to answer your question directly, any impact that being passed over for an employee such as who you described would have on your case is likely to be minimal either way.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your questions, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 1 year ago.

I absolutely appreciate your frankness. Thank you. Having said that, there are a number of mitigating circumstances that may help my case:



  1. As mentioned earlier, my immediate supervisor, when pressed as to why two individuals with less seniority and less job skills were promoted over me stated that…”we want to keep them around, they work well together and they are young guys”. This was said in front of his supervisor, our manager, who immediately shut down the discussion. Upon arriving home, I sent this individual an Email thanking her for meeting with me and quoted what was said. I stated that my age had never been an issue for me in doing my job. In her response, she never denied that the comment was said or that she did not hear it and instead, said that she had not had time to review my case and wanted more time. I have this Email exchange in my file at home.

  2. My immediate supervisor has told me on numerous occasions that he is only one vote in the decision as to who is promoted: supposedly, it is by committee including members on the Board of Directors. I have had no issues with any board member.

  3. I hate to bring up this last issue but for clarity sake, I must. The two individuals that were promoted are minorities. In and of itself, this would not and should not be an issue. However, one of the individuals had been on the job less than 6 months when his wife called in sick for him stating that he was taken to the hospital. It is my understanding that he is type 2 diabetic. Before he came back to work, it is my understanding that he demanded that he be made full-time. Of course, this is only hearsay. However, my immediate supervisor in an earlier conversation said that he had nothing to do with bringing him back and would not have done it.


 


It is my further understanding that the individual mentioned above had complained about another employee using racial slurs, having been rude and generally hostile towards him. Again, this is hearsay. I can tell you that the manager came to me and asked about the individual who had been accused of the above mentioned behavior, asking if I had ever heard this individual speak inappropriately or if I had experienced any hostility from him. She implied at the time that they were looking into a possible “hostile work” environment having been created by this individual.

Expert:  Patrick, Esq. replied 1 year ago.
These things in their entirety certain do give rise to a very reasonable presumption that discriminatory motives were the basis for your termination.

I do hope that I have adequately answered your questions. Best of luck with your claim.
Customer: replied 1 year ago.

Thank you for all your assistance. However, as I have not been terminated, I just wanted to ensure that the above answer was for me and not another individual. I am sure that you are answering more than one inquiry at a time.

Expert:  Patrick, Esq. replied 1 year ago.
Sorry, that was no more than a simple typo. I understand that your case is about the failure to receive the promotion. My sincere apologies for the mix up.

Please let me know if you have any other concerns. Otherwise, I would be most greatful for a positive service rating.

Best wishes to you moving forward.
Patrick, Esq., Lawyer
Satisfied Customers: 7115
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

You can imagine how difficult this is for a man in his 60's to have to deal with, especially in this economy. Throughout my life, I did everything I thought was right. Went to college, received a Masters Degree, raised a family, was in business all to end up fighting for some silly position with a dysfunctional organization. I even thought of becoming a lawyer! Life and all its vagaries.


 


Thank you again. You have been very helpful.

Expert:  Patrick, Esq. replied 1 year ago.
You are very welcome. Thank you so much for coming here to Just Answer to ask your questions, and I hope that things improve for you.

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