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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5047
Experience:  Extensive experience representing employees and management
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Discrimation/Retalition by state of California on a state employee: Please

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Discrimation/Retalition by state of California on a state employee:

Please keep this absolutely confidential, but I have a legal situation that I'm still working on, I was a state employee trying to sue the state under retaliation/discrimination under the ADA or Civil Rights act Title 7. I think I probably goofed by not filing it in state court within 90 days, and not demanding a change of venue since there is collusion between the court and the board of directors.

You see, I believe it will be difficult to prove discrimination by my supervisor alone in a federal court, whereas state would be much simpler as it would count against the whole department's actions. The EEOC, who conveniently misplaced four or five boxes of my evidence, wrote that I only had 90 days to file in state or federal court, and the last day I could only file in Federal court a the state court is 150 miles away and I didn't know about state immunity to the ADA from an employee than. My Federzl Civil Case application was incomplete so it was returned and I'm finishing it up to re-submit it there. But Do you happen to know of an easy way to switch courts at this point in time? Probably not possible... just checking.

Good thing about decisions like Passantino v. Johnson 7 jOHNSON that causation may be established based on the timing of relevant actions, but do you know that if my supervisor claimed that he was actually instructed to do retaliatory/discriminatory things by his boss, that it would be OK and he would not be legally liable in federal court?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Who have you filed suit against? Have you just filed suit against the Supervisor or the State of California (your employer) as well? Have you added the boss of your supervisor to the suit?
Expert:  Joseph replied 1 year ago.
Hello Stephen,

Also, where has your case been filed? Did you initially file the case in state court of federal court?
Customer: replied 1 year ago.

the defendant is in imperial valley so I tried to file state court in san diego but they didn't take it as it's not the same county.


 


So I went across the street to the federal court in san diego and dropped off my civil suit application, which was returned to me for lack of details and is still awaiting my completed forms response

Expert:  Joseph replied 1 year ago.
Hello Stephen,

You want to keep the case in federal court, sine the state has immunity from being sued in state court, so your case would be immediately dismissed if you were to file it in state court.

(That's the reason that you need to file a complaint under the ADA instead of FEHA, since the state can only be sued in federal court for an ADA violation).

In answer to your second question, no, it would not eliminate the liability of your supervisor if he were informed that he should violate the provisions of the ADA and discriminate and/or retaliate against you on the basis of your disability and filing a complaint against your employer with the DFEH and EEOC.

It would actually extend the liability to your boss' supervisor if this type of 'defense' is used, so you could add your boss' supervisor as a party to the case against your supervisor.

However, unless you had filed an appeal on your EEOC case for discrimination, if you resubmit the cae to federal court, you would be past the 90 days that you have to file a complaint in federal court, and your case could be dismissed for failure to file your claim within the statutory allowed amount of time. (If the court lets you file an adendum to your claim, however, the date you filed the intiial claim would be witihin the statute of limitations and you would be allowed to proceed with your case).

I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question.
Customer: replied 1 year ago.

Oh, I read that state's have immunity to employees of the state under the ADA in federal court. Maybe too many details and it's confusing to me. I want to file an appeal with the EEOC but that option was not presented to me. So are you sure that the ADA is OK in federal court as it applies to state employees suing a state Auxilliary, not the state itself?

Expert:  Joseph replied 1 year ago.
The way that you get around state immunity under the ADA in federal court, is to sue an employee of the state agency. Then if you win a victory against the individual, the state will indemnify the individual and you would actually receive an award from the state agency for the supervisor's discrimination and retaliation in violation of the ADA.
Customer: replied 1 year ago.

Wow, so is california a sue-able state already or is it like alabama that's not?


 


So instead of filing a civil case application against the water district, an auxillary state agency, I would need to change that to be against my supervisor? It's over 90 days so I would need to change or add to the defendent instead of just The Water District? I can add to other parts of the civil case application, can I add or change the defendant now before it's been accepted?

Customer: replied 1 year ago.

Because it's still being processed by me, with the original date withing 95 days of the writ of decision by the EEOC, may I still appeal the EEOC decision? How would I do that? Call the EEOC investigator that was handling it?

Expert:  Joseph replied 1 year ago.
I'm not sure what you mean by the state being sue-able or not. Both states would be subject to claims under the ADA, as long as they are held to violate the 11th Amendment.

Due to changes to the ADA, under the ADAAA, the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garret, holding that individuals cannot sue states for monetary damages under the ADA, would be unlikely to currently apply to current causes of action against states under the ADA.

However, you should add your supervisor as a party to your cause of action under the ADA. You can change the defendants after the case is accepted by filing an adendum to the original filing.

Unfortunately, you are supposed to file an appeal with the EEOC within 90 days of their decision, so you can still try to appeal the EEOC decision, but they would be unlikely to accept your appeal now. You would do so by calling the investigator handling your request and asking to file an appeal with the EEOC.
Joseph, Lawyer
Satisfied Customers: 5047
Experience: Extensive experience representing employees and management
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