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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1831
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Wrongfully termination

Customer Question

After 25 years of service, I was wrongfully terminated from my employment on the pretext of unsatisfactory work performance. I was reinstated based on a arbitration decision. I have not returned back to work. I cannot go back the USPS. The Defendants' depositions further contradicted their affidavits, statements to the Office of Workers' Compensation, investigative reports and the arbitrator's award references how the Defendant impeached his testimony. My case is in district court in San Francisco, CA. The Defendant served a motion for summary judgment. I must stop the SJ. I need cases that denies the motion based on falsification by the employer. The 78 false statements are support that its legitimate nondiscriminatory reason was pretextual. I need to cite cases that denied the SJ based of the employer's falsification. Overall, I need assistance putting together my response. I am unclear which cases I can use, how to find them and confused with some of the symbols used such as Id.

Submitted: 1 year ago.
Category: California Employment Law
Expert:  Wendy-Mod replied 1 year ago.

Hi, I am a moderator for this topic. I've been working hard to find a Professional to assist you right away, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!

Wendy
Customer: replied 1 year ago.
Please continue your search.
Expert:  Fran-mod replied 1 year ago.
Thank you for your patience. We will continue the search for a Professional for you.
Expert:  Brandon, Esq. replied 1 year ago.

Hello and thank you for your question.

To defeat a motion for summary judgment, you need to present some triable evidence to show that you could have a case. In a summary judgment hearing, a judge will look at all the evidence you present, disregarding any conflicting evidence on behalf of the defendants, assuming everything that you say is true and everything they say is false. So, the summary judgment motion would never be granted just because the employer was lying, but rather because you have presented enough evidence to show that you do in fact have a case. This can be in the forms of affidavits, statements concerning lack of write-ups or anything else you can think of.

As to which cases you can use, you can use anything that is relevant to your situation. Two cases which you may be able to use are:

http://scholar.google.com/scholar_case?case=15425639941632764596&q=deny+summary+judgment+for+discrimination+case+unsatisfactory+work+performance+due+to+falsification+of+facts+by+the+employer&hl=en&as_sdt=4,5

http://scholar.google.com/scholar_case?case=9927157615128210379&q=deny+summary+judgment+for+discrimination+case+unsatisfactory+work+performance&hl=en&as_sdt=4,5


However, the facts of your case are very specific to you. You should consider going to "Google Scholar" by clicking on this link:

http://scholar.google.com/

and searching for legal documents in California relating to the specific facts that you are dealing with.

When you limit your search, you should include all cases in California, as well as all Supreme Court cases and all appellate cases dealing with California.

You can also do what most attorneys do, which is to get a subscription to Westlaw, or Lexis which are legal databases. The other option, is to find an employment attorney in your area who already have these services, and who might be willing to take your case at no expense to you. If you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with.

Finally, regarding "Id," Id is a legal term for making a citation. It means, "same as above." If it says Id at 354, this means that it is the same citation as the last one, but at page 365 instead of the page originally referenced. So, for example, you may see something like:

Wilson v. Mar. Overseas Corp., 150 F.3d 1, 6-7 (1st Cir. 1998).

This is a citation to the original source where that qoute was found. If you see another qoute, and then the words Id. This means that the following quote can also be found in the same case, statute, journal, etc. as above.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.


Expert:  Brandon, Esq. replied 1 year ago.

I wanted to write to check up to see if you had any additional questions or concerns concerning your question. If you do have additional questions or need additional clarification please do not hesitate to ask. Please remember that I do not know what you may already know or with that you need help with unless you tell me. If you have not provided a positive rating because you would like a different expert to answer your question, please ask and I will opt out of the question so that another expert may answer. If, however, you found the information helpful to you, please do not forget to provide me with a positive rating by clicking on one of the happy faces, or I will not receive any credit for my time in trying to assist you. Please keep in mind that even after a rating has been issued you can continue to ask questions related to the original post and I will be happy to answer them. If for some reason the rating feature is not working or you cannot find it, please write me back and let me know. Please remember that when you are asked to give a rating, you are rating My Service and not this website itself or the law as it applies to your case. I wish you all the best in 2013.

Customer: replied 1 year ago.

Thank you so much for your timely response. I am pleased with your service and responses. I do have another question. In the mist of being terminated, I filed grievances, Workers' Compensation and NLRB claims. Since there had not been any resolution on the NLRB claim, does this affect my claim in district court? The SJ states, "Defendant further moves for summary judgment with respect to Plaintiff's putative claims under the National Labor Relations Act based on the fact that this Court lacks subject matter jurisdiction to review claims asserting retaliation for alleged "concerted activities" regarding complaints about "working conditions."

Expert:  Brandon, Esq. replied 1 year ago.

Making a grievance or complaint to the NLRB leads to a hearing before an NLRB Administrative Law Judge. The only reason why you would have subject matter jurisdiction in your personal lawsuit would be if you were moving for injunctive relief or if you were appealing a decision that was already made. They are making a motion stating that you are not allowed to bring those particular claims in this court. They are likely right. However, when making a claim, courts will usually bar you from later bringing claims that could have been brought in your original action, so while "this" does not affect your claim in district court, you want to make sure that the court rules that they do not have jurisdiction, so that you have the full right to bring any other claims later on. In dealing with a summary judgment motion, a court will grant certain parts and not others, so, while you do not need to fight that particular part of it, you do not want to withdraw it either.

Brandon, Esq., Lawyer
Satisfied Customers: 1831
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much. I still a little confused but I am pleased with your responses and timeliness. In opposition to the SJ, do you provide a separate statement of undisputed material facts? I understand everyone has an opinion. I'm getting confused because I thought I'm only suppose to discuss the disputed material facts.

Expert:  Brandon, Esq. replied 1 year ago.
In opposing the motion, your responding statement will need to either admit or dispute each of the facts in the motion for summary judgment. If you fail to say anything about it, all material facts in the movants statement will be deemed admitted for the purpose of the motion. Additionally, you can and should include additional facts that you believe are material. If you do not like the way something is worded, you need to point it out, because remember, if you say nothing, whatever they said will be deemed to be true.
Customer: replied 1 year ago.

I have a situation that I'm trying to overcome. You would think that it's not an issue but, April 22, 2010, I was given the Notice of Right to File a formal complaint. The notice states: "An inquiry was conducted and management responded that: ... The administrative judge stated the managers/supervisors in question were not aware of my EEO complaints until August 9, 2010, after I was terminated. January 18, 2013, during their depositions, all of them denied making the statements to the EEO ADR Specialist. I sure it was based on the advice of their attorney. The EEO specialist is not domiciled in Oakland, CA. There is not any way that person would have known any of the information. I don't know why the AJ took that position but he did and their attorney is ridding on it. Now I'm in district court opposing the SJ. What shall I do?

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