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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5126
Experience:  Extensive experience representing employees and management
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I am working in government and apply a position which pay grade

Resolved Question:

I am working in government and apply a position which pay grade is similar with my current position. However , the personal department rejected me as below :

quote
Your application for this examination has been reviewed to determine if you meet the minimum requirements. Unfortunately, we cannot accept your application at this time for the following reason(s):

This examination would not result in a promotion for you. However, if you are applying for this examination to seek employment with the Department of XXXX or to gain more promotional opportunities, please submit your request in writing and state your reason(s).
....If you believe that the information you provided on your application has been misinterpreted or has been incorrectly calculated, and you would like the Personnel Department to reconsider your application, you may submit your concerns in writing within 10 calendar days. No additional or new information, beyond the information that was submitted with your application, will be taken into consideration."

Unquote

However, I noticed that my co worker who has the same pay but not received such rejection. Due to the " Equal Employment Opportunity", how can I appeal about that or what else should I mentioned to protect myself ?

Thank you.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

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

My goal is to provide you with excellent service today.

Is this position with the state government, local government, or federal government?

Also, can you tell me if you believe that your unfair treatment was due to discrimination based on a protected characteristic (such as race, gender, national origin, or ethnicity)?
Customer: replied 1 year ago.

Local government, it is a big city.


I am not sure. The other one who did not receive the rejection came from the same country as me. I am confused too and feel frustrated.


 


Maybe I should tell you more about myself:


my current position is tax auditor II, this position highest pay is 87K, I applied management analyst position is $86K, however, my current job is not stable since the new mayor will eliminate our department in the near future. The department of "WWW" management analyst position pay can be $99K, my point is that pay is not the only concern about my career path, I can demote myself I really like that job, the personal can not deprive my rights to apply this position. I do have a lot of experience on this field.


If you need more information, please let me know.


 

Expert:  Joseph replied 1 year ago.
And other person who didn't receive the rejection has the exact same title, salary, etc.?

Do you know or have an employee handbook from the city?
Customer: replied 1 year ago.

Yes, she has the exact same title, and her salary is more than mine because she was employed earlier than me.( I am in the pay grade 4 and she is in pay grade 5, and we will be the same next month since my anniversary year is next month and hit the ceiling).


 


I have an employee handbook from the city but not in my hand.


 

Customer: replied 1 year ago.

One more thing that I forgot to tell you: If I can take this position, I probably will promote to another senior level and the pay is much more higher than my current one. How did they just assert that this is not a promotion for me?


I am really angry.

Expert:  Joseph replied 1 year ago.
Hello Sandra,

Again, my goal is to provide you with excellent service today, so please don't hesitate to ask me any follow up questions or request any additional information.

In order to have a valid cause of action for discrimination to report to the Equal Employment Opportunity Commission you would need to be able to prove that you were treated different than your co-worker due to discrimination based on a protected characteristic (such as race, age, gender, national origin, or sex).

Unfortunately, although it is extremely unfair for you to be denied the opportunity to apply for this open position, while someone in the exact same position as you is being allowed to apply for this position, that form of differential treatment is not illegal.

This is due to the fact that as an at-will employee, your employer doesn't have any obligations to allow you to apply for certain positions, whether they are promotions or on the same grade as your current position.

This stems from the employment at-will doctrine, which is codified in California Labor Code Section 2922 and states:

"An employment, having no specified term, may be terminated at
the will of either party on notice to the other. Employment for a
specified term means an employment for a period greater than one
month."

That said, if your employer violated one of its own rules in not allowing you to apply for this position (and allowing another employee in the same position to do so) then you would have sufficient grounds to appeal and overturn the employer's decision, since it would be in violation of the policies that it set out.

Otherwise, unfortunately, the personnel department would not be considered to be violating your rights even though its decisions are completely inconsistent and unfair, unless it's doing so due to discrimination based on a protected characteristic.

I realize that the above information is not what you wanted to hear, and I sincerely XXXXX XXXXX had better news to give you (as I entirely agree with your position, as your personnel department is treating you very unfairly). However, I hope that you appreciate my direct and honest answer to your question, as it would be unprofessional of me and unfair to you to provide you with anything less.

Since my goal is to provide you with the best service today, please let me know if you have any follow up questions.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!
Customer: replied 1 year ago.

I was wondering that's not the case--in government, the EEO is extremely strict and that's why the City got tons of lawsuits.

Expert:  Joseph replied 1 year ago.
Hello Sandra,

I see that you only rated my answer as 'poor.' Can you please let me know what additional information you need or follow up questions I can answer for you to improve your rating of my service?

Thanks!

Yes, the EEOC is extremely strict in city governments, and there are always tons of lawsuits. However, you do need to prove that there was discrimination based on a protected characteristic in order to have a valid case against the city.

Even though your fellow employee was allowed the opportunity to apply, you would still have the basis for filing a complaint with the EEOC or DFEH based on discrimination due to national origin. If you are denied the opportunity to apply on appeal, I suggest that you file a complaint with either the DFEH or EEOC for discrimination.

You can file a complaint with the Department of Fair Employment and Housing using the information available online here:

http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm

Or file a charge with the EEOC using the information available online here:

http://www.eeoc.gov/employees/charge.cfm


The Department of Fair Employment and/or EEOC will investigate your case on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your case against the city through a private attorney.

I hope the above information is helpful. Again, please let me know if you need additional information, as I sincerely XXXXX XXXXX improve your rating of my service.

Thanks and have a great 4th!
Expert:  Joseph replied 1 year ago.
Additionally, you may also have a basis to file a complaint for sex and gender discrimination and age discrimination in violation of the Age Discrimination in Employment Act (if you are over the age of 40).

You can include those with your complaint for discrimination on the basis of national origin.
Expert:  Joseph replied 1 year ago.

Also, if you would like me to look over your appeal letter for you and make suggestions, I'd be happy to do so.

 

Happy 4th of July!

Customer: replied 1 year ago.

 


Yes. I would like you to look over my appeal letter ( I haven't finished it yet). I will send it to you within 1 hour. Talk to you later. Thank you.

Expert:  Joseph replied 1 year ago.
Sounds good. I'll be awaiting your letter to look it over and make suggestions.

Customer: replied 1 year ago.

Joseph,



Below is my preliminary draft, any suggestions will be appreciated.



Attention: Application Review Unit


I applied Management Analyst (Class Code 9184, AKA “MA”) on July 1, 2013.


I received your rejection email on Juy 3, 2013 with a reason: This examination would not result in a promotion for me”.



I believed that I was unfairly treated because:



Firstly, in Department WWW, MA position’s salary is $99,072, which is a big promotion for employees with the same salary as me.



Secondly, I look forward for the future promotional opportunities: Senior MA/ Principal MA. These are big promotions for me too.



Thirdly, as a professional, I believe that salary is not the only concern for my career path. If you really like to do something that really interests you, you would not consider more about the pay. Per my knowledge, some of the higher level co workers applied the other lower level job due to diversified personal reasons.



Fourthly, I noticed that my fellow employee, who has the same title as me and higher pay, applied the same position but never received rejection email like me. I am very confused about that. Our City is an equal opportunity employer and everyone is equal I feel that I was singled out and judged by those factors that I can not controlled.



Lastly, take into considerations of my previous working experience, I believe that I am a good fit for this position and I Sincerely XXXXX XXXXX attend this examinations.


Expert:  Joseph replied 1 year ago.
Hello Sandra,

It looks like a pretty good letter to me. It's good to make it clear that you consider the position to be a promotion, so you shouldn't be denied the opportunity to apply for it, especially since your co-worker has been allowed the same position.

I have the below suggestions/changes:



Change Firstly, etc. to just First, Second. No -ly is needed.


I received your rejection email on Juy 3, 2013 with [the] reason: ["]This examination would not result in a promotion for me”.

(The first three points are good and don't need any additional work).


Fourthly, I noticed that my fellow employee, who has the same title as me and higher pay, applied the same position but [didn't] receive a rejection email like me [and was given the opportunity to apply for the position]. I am very confused about that [as it appears that I'm being treated differently than my fellow employee]. Our City is an equal opportunity employer and [since] everyone is equal[,] I feel that I was singled out and judged by those factors that I cannot control.


Lastly, [please] take into consideration my previous working experience[.] I believe that I am a good fit for this position and I sincerely XXXXX XXXXX attend these examinations.


I hope those corrections are helpful. Feel free to send me another draft or ask any follow-ups.

Please also make sure that you take the time and rate this answer positively so I get credit for my work and the negative rating doesn't affect my record.

Thanks again!
Expert:  Joseph replied 1 year ago.

Hello Sandra,

 

I see that you viewed my above answer, but still haven't changed your rating of my service or rated one of my answers positively.

 

I've spent some time and effort on this holiday to help you out and I'd sincerely XXXXX XXXXX you rate my answer positively in exchange.

 

If you don't, the website recoups your entire deposit, and I get nothing for assisting you.

 

Trust me when I tell you I need the money way more than they do, so I'd greatly appreciate your positive rating.

 

If you need any assistance in changing your rating, please let me know so I can contact customer service.

 

If you have any follow up questions or need me to look at your second draft, I'd be happy to do so.

Joseph, Lawyer
Satisfied Customers: 5126
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Joseph,



I will rate you soon. Don't worry.


This the final draft, please help me more .



Thanks,




Attention: Application Review Unit


I applied Management Analyst (Class Code 9184, Aka “MA”) on July 1, 2013.


I received your rejection email on July 3, 2013 with the reason: “This examination would not result in a promotion for me”.



I consider the position to be a promotion, so I shouldn't be denied the opportunity to apply for it, especially since my co-worker has been allowed to apply the same position.



First, in Department WWW, MA position’s salary is $99,072, which is a big promotion for employees with the same salary as me (TA II)


 


Second, I look forward for the future promotional opportunities: Senior MA/ Principal MA, etc. These are big promotions for me too.


 


Third, as a professional, I believe that salary is not the only concern for my career path. If you really like to do something that really interests you, you would not consider more about the pay. Per my knowledge, some of the higher level co-workers applied the other lower level jobs due to diversified personal reasons.


 


Fourth, I noticed that my fellow employee, who has the same title as me and higher pay, applied the same position but didn’t received rejection email like me and was given the opportunity to apply this position. I am very confused about that as it appears that I'm being treated differently than my fellow employee. Our City is an equal opportunity employer and since everyone is equal, I feel that I was singled out and judged by those factors that I can not controlled.



Last, please take into considerations of my previous working experience. I believe that I am a good fit for this position and I sincerely XXXXX XXXXX attend this examinations.






 

Expert:  Joseph replied 1 year ago.
Thank you, please see my suggestions and corrections below:



I applied [for the position of] Management Analyst (Class Code 9184, Aka “MA”) on July 1, 2013.

I received your rejection email on July 3, 2013 with the reason: “This examination would not result in a promotion for me”.


I consider the position to be a promotion, so I shouldn't be denied the opportunity to apply for it, especially since my co-worker, who has the same title and has a higher salary than me, has been allowed to apply [for] the same position that I've been denied.

[I am appealing the personnel department's decision to deny me the opportunity to apply for this position because "it would not result in a promotion for me].

[I believe the following reasons should be considered, and that I should be allowed the apply for this position, since it would actually be a promotion for me, and my co-worker has been allowed to apply].

First, in Department WWW, MA position’s salary is $99,072, which is a big promotion for employees with the same salary as me (TA II).

Second, I look forward [to] the future promotional opportunities: Senior MA/ Principal MA, etc. These [would be] big promotions for me too.


Third, as a professional, I believe that salary is not the only concern for my career path. If you really like to do something that really interests you, you [have considerations other than pay in moving your career forward]. Per my knowledge, some of the higher level co-workers [have] applied [to] other lower level jobs due to diversified personal reasons.



Fourth, I noticed that my fellow employee, who has the same title as me and receives higher pay, applied [to] the same position [as I did] but [did not] receive [a] rejection email like me, and [instead] was given the opportunity to apply [for] this position. I am very confused about that[,] as it appears that I'm being treated differently than my fellow employee. Our City is an equal opportunity employer and since everyone is equal, I feel that I [have been] singled out and judged by factors that [are outside of what] I can control.


[Finally], please take into consideration my previous working experience. I believe that I am a good fit for this position and I sincerely request to attend this examination.

[Thank you for your time and consideration.]





I hope that helps!
Expert:  Joseph replied 1 year ago.
Sandra,

Thank you for your positive rating of my service. It is the most gratifying to help a customer who seems to have first had a negative experience and I sincerely appreciate the opportunity to improve your rating of my services.

It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.

Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly in California Employment Law.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Joseph
Customer: replied 1 year ago.

Joseph,


 


Thanks for your services.


At the beginning, I thought you just take the shortcut : if my case falls into your default answer, then you can apply it easily. However, it is not. I am very happy that you can improve your service and began to work like a good lawyer fast and figured out what the client really need.


 


Thank you.

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