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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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One more question please, i was diagnosed with severe major

Resolved Question:

One more question please, i was diagnosed with severe major depression and have been treated with anti-depression and anti-anxiety drugs for the last 10 years. My conditions were well controlled until the last couple of months when my boss started to mistreat me.
Should I bring it up in my grievance against Mina to prove how her behavior had affected my health condition?
Thank you
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your followup question.

Victims of discrimination and hostile work-environment claims are entitled to compensation for "pain and suffering," which includes emotional injuries. If your employer's conduct caused you to relapse into depression and affected your psychological well-being this is absolutely something that would be relevant to your legal claim.

Does this answer your question? I am happy to discuss this with you further if necessary. Have a very pleasant evening and good luck with your claim.
Patrick, Esq., Lawyer
Satisfied Customers: 7202
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.

Hello,


The company policy against discrimination states:


prohibits discrimination against employees and applicantsbecause of: (a) sex; (b) race; (c) color; (d) ancestry; (e) religious creed; (f) national origin; (g) physical or mental disability; (h) medical condition; (i) age; (j) marital status; (k) the taking of family and medical leave, per the Family and Medical Leave Act (FMLA) or pregnancy disability leave; (l) sexual orientation; (m) political or religious opinions or affiliations; (n) gender identity, and (o) any other factor unrelated to job performance.



Does that mean I don't even need to prove I was discriminated against because of national origin?



Expert:  Patrick, Esq. replied 1 year ago.
Thanks for your reply.

That is a bizarre thing for them to include in their own company policy, as it does indeed appear to open them up to "discrimination claims" not even based on a protected trait but based on "any other factor" that doesn't have to do with the job.

I have no idea why they would have included that and I've never seen anything like it, but since they did include it, then "yes," at least in theory you no longer even have to prove that national origin was the basis for the adverse employment action--you simply need to prove that some factor not related to your job was the reason for adverse action.

To be clear, though, a claim brought pursuant to subsection "(o)" of your company policy would only be a claim for breach of contract. This is because there is no statutory prohibition on adverse employment action premised on "factors unrelated to job performance." It's only because of your contract that such action becomes illegal and therefore only a breach of contract claim is appropriate.

Since it would be a breach of contract claim, the EEOC would not be able to pursue it for you. The EEOC handles only discrimination claims pursuant to the definition for "discrimination" under federal law.

To put this all another way, it may be possible to bring a claim pursuant to subsection "o," but that claim would only be for breach of contract. Since the EEOC does not pursue breach of contract claims, they would not be able to assist you and you would need to file a breach of contract lawsuit in civil court to enforce your rights.
Customer: replied 1 year ago.

It's because I'm working for County in CA and am protected by Union contract.


Your reply is very thorough and I'm very impressed. Please let me know if there's anything else that could help me.


I've filed with the EEOC Officer at the County who wanted to meet me on Monday to assess the situation prior to my filing. Would you be willing to review my write up stating the facts backing up my claim?

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your reply and kind words.

The only other thing I'll add is that, rather than filing a lawsuit for breach of contract, since this is a union issue you will probably want to file a grievance alleging breach of your bargaining agreement pursuant to subsection "(o)." You would need to contact your union rep about that.

With regard to reviewing your writeup stating the facts, that would unfortunately constitute legal "representation," which we cannot engage in through this site pursuant to site rules and the rules of the CA State Bar. Here on Just Answer we are limited to providing information about the law, and so while we can answer any specific questions you may have, we cannot perform general document review or drafting services. I hope that makes sense.

If you have specific questions regarding your write up, I would of course be more than happy to address those and assist you as best I can inconformity with the limitations of this online forum.
Customer: replied 1 year ago.

quote "rather than filing a lawsuit for breach of contract, since this is a union issue you will probably want to file a grievance alleging breach of your bargaining agreement pursuant to subsection "(o)." You would need to contact your union rep about that."


What does it mean "filing a grievance"? is it the same as "filing a lawsuit"?


what if my union rep doesn't want to jeopardize her relationship with management for other "bigger issues" to negotiate? can I go to private lawyer?


For clarification, I'm fortunate to have a supportive husband and we can afford legal fees. We have decided to pursue this matter to right the wrong and to stop my supervisor from doing the same with my other co-workers: stalling, harassing, rude, belittling. favoring incompetent workers based on her national origin, and so on. I have co-workers who asked me to stand up for them. Brief, please provide me with the best alternative to achieve this goal.


Should I sue my boss personally?


Thank you.

Expert:  Patrick, Esq. replied 1 year ago.
Good morning and thank you very much for your followup.

Filing a grievance is much different than filing a lawsuit. A grievance is an internal dispute resolution procedure provided by a collective bargaining agreement to resolve disputes between union employees and their employers concerning alleged breaches of the CBA. A grievance is basically like an internal complaint that your union makes on your behalf, claiming that some aspect of your union contract was violated and has resulted in damages. Grievance procedures are determined by the CBA and invariably culminate in binding arbitration (kind of like a trial, but much quicker and less formal).

Your union rep has a duty to "fairly represent" all union members, including yourself, but does not necessarily have to take on and pursue every grievance.

If your union rep refuses to pursue your grievance, then you would need to file what is known as a "section 301" claim in federal court. This becomes very complicated. Basically, a section 301 claim alleges that not only did your employer violate your contract, but that your union rep also violated its duty to fairly represent you by declining to pursue your grievance. The suit would be against both your employer and your union.

Again, remember that all of the above really only pertains to a claim based on subsection "o" of your contract, because that is the only subsection which the EEOC cannot pursue on your behalf. If you are alleging a form of discrimination that is recognized by statute, such as national origin discrimination, that would be MUCH better to bring through the EEOC and then, ultimately, civil court. You would not need to rely on bringing a "section 301" claim in that instance.

I hope this helps and good luck.
Patrick, Esq., Lawyer
Satisfied Customers: 7202
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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