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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34117
Experience:  Retired (mostly)
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Good Afternoon. long story short. I had two job offers,

Customer Question

Good Afternoon. long story short. I had two job offers, one required moving and was offered relocation. the other was very close to home, and offered a significant bonus year end which they said they had always paid. I chose the one that did not require the move. During the salary and negotiation process, i negotiated some time off within the first couple weeks for a previously scheduled surgery ( i did not disclose the nature of the surgery) the company said that was no problem.

I started working, was employed for 4 days, most of which was just my self familiarization with the company standards and policies and procedures. very little interaction with staff or executive level persons.

On day 5 I reminded my supervisor that I would be out the following week for a bariatric surgery (weight loss surgery) and that the time off was agreed upon during the hire process. She indicated that yes doing my job with so much weight would be difficult, then within 30 minutes she called me into her office and let me go because she said I was "to much of a safety professional and they decided they did not need one so skilled, my safety trajectory was way up "here" and the company was way down "here" and she did not think I would be happy there." and said i should move on.

I was stunned? it made no sense. they hired a professional who gets the job done, and had not even been able to start a project yet.

I believe they let me go because of my weight and the fact that I was having weight loss surgery. There is no other explanation. I have been a safety professional for well over 20 years and have never been fired or laid off and have excellent references.

I was able to find another position immediately. however, it is not local and I have an hour commute, and I had just signed a lease agreement when I was hired with the other company.

m losses or commute time, significant bonus pay, and costs of breaking a lease so i can move closer to my new employment.

they company that let me go wanted me to sign a release for 1 week of severance pay, i refused. I am not sure if i want to enter into a lawsuit just because of all of the ramifications it can lead to. I would like to develop a demand letter with a threat of potential lawsuit to see if i can get a little bit out of them to offset some of my losses.

do think that this is reasonable?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.

Hello,

I'm really surprised at the employer's action. They seem to have decided to risk legal action for disability discrimination, under both federal and Calilfornia law. Let me see if I can think through the case:

  • You were hired and you notified the employer that you would have to have surgery, but you didn't say why. The employer agreed to your request, which created a express oral contract that you would not be terminated for requesting the time off in advance of hire.

 

  • After you were hired, employer later discovered that the reason for the surgery was due to your weight -- in other words, you have a weight issue that is a disability, and you are having surgery to deal with that disability.

 

  • The employer terminated you immediately upon discovering the issue.

 

  • That seems to me to be prima facie disability discrimination, as well as a straight breach of contract -- however, I believe that the rationale will be that the employer will claim that you cannot possibly perform the essential functions of your job, given your weight issue.

 

  • This seems to me an absurd defense, given that you were already hired. I don't think that the employer has a "snowball's chance" of avoiding liability under this scenario.

 

You can hire an employment rights lawyer (see this link) to try to convince the employer that it may want to reconsider its decision. Or, you can file a complaint with the DFEH, and let the government go after the employer -- and then sue if the DFEH can't talk any sense into the employer.


There's money in this legal claim, in my opinion. But, maybe you would prefer to have the job. Either way, and while I cannot promise you the result that seems obvious to me, I think that local legal representation or a DFEH complaint is likely to produce a positive outcome.

Please let me know if I can be of further assistance.

socrateaser, Lawyer
Satisfied Customers: 34117
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I guess, California being a "at Will" state they can let me go for any reason basically (unless it is not one of the "protected class"). i really don't have any proof that the reason was my weight, but a very lame excuse for letting me go, then filling the position again with some who was just as qualified as me (I know the person) who is not over weight, is that enough?


 


A single comment about my weight and then as soon as I tell them what the surgery is for, BAM, end of my job? I was not even there a week? It makes no sense...


 


anyway,


 


Thanks


 


no longer overweight in CA

Expert:  socrateaser replied 1 year ago.
I don't usually say this, but I think you're making a mistake by not pursuing this issue through the channels that I have described. It's your choice to let it go, but I see a viable case here based on disability discrimination. I may be wrong, but it won't cost you anything to find out.

No need to reply. Best wishes.
Customer: replied 1 year ago.
Thanks ,

I do have one more question, maybe you can answer. I have read the DFEH website and on it it indicates the prevailing party can collect attorney and Court costs. Does this mean, if I lose, the company can come after me for their costs? Even of the claim is not frivolous as was in good faith?

Thanks.

Jared
Expert:  socrateaser replied 1 year ago.
A prevailing defendant/employer is entitled to fees under the FEHA only if plaintiff's discrimination claim is “frivolous, unreasonable or groundless.” Cummings v. Benco Building Services (1992) 11 CA4th 1383, 1389, 15 CR2d 53, 57 (emphasis added) (adopting standards set forth by U.S. Supreme Court in Christiansburg Garment Co. v. EEOC; Jersey v. John Muir Med. Ctr. (2002) 97 CA4th 814, 831, 118 CR2d 807, 820.

So, not to worry.

Hope this helps.

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