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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5276
Experience:  Extensive experience representing employees and management
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I worked as Per Diem Nurse in a hospital for about 8 years

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I worked as Per Diem Nurse in a hospital for about 8 years and have been trying to get a permanent status/position. Within the last three years, there were openings for permanent positions due to retirement of some Nurses. I applied for an opening two years ago and was not considered. Few months ago, I applied for another opening and again was NOT considered. My co-workers who have permanent status have urged me to file a grievance against the Manager since they believe that I deserved to be offered the position. This Manager was hired about 3 years ago and from the very start has already been indifferent and not easy to work for. He makes sure that nobody questions his authority.

I believe the Manager has been unjustly discriminating me because of my race, or age even though it’s hard for me to prove. My fellow co-workers feel the same way that I’m being discriminated by this manager since they believe I am better qualified than those that he hired. They say that they are willing to vouch for me as the better qualified Applicant for that permanent position.

Because of this, I emailed my manager in a very respectful way and asked him the reasons why I was not considered for the job. The Manager refused to respond on my email initially until I have copied the Human Resources on my follow up email requesting for a response.

He finally responded to my email and set up a one on one meeting in a few days. Since this Manager ‘s style is to “bully” his subordinates, my co-workers indicated that I should take someone with me as witness in our meeting so that the meeting does not end up to be “he said she said”. This guy is known for changing his statements in the past, and appears to get away with it.

I’m concerned that the meeting will not result positively based on his strong personality versus my timidness.

Any suggestions on how I should prepare for this meeting? In addition, some further guidance would be appreciated if in case the meeting does not turn out well.
Thanks
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.

Can you tell me why you expect that the manager is treating you differently on the basis of race or age (over 40)? Were there similarly situated co-workers of yours who were able to apply for the same position and were younger than you and/or of different races?
Customer: replied 1 year ago.

To respond to the race issue, there were several of us (same Race who applied) for the position and all were NOT considered. The Manager cannot claim for experience since we are more experienced than those who were hired. It cannot be for education since we all have the same educational level. As far as work performance, we have praises from our peers on our professionalism and work ethics. In fact, even for the Technician positions, the newly people who got hired were of a different race despite the high percentage of Applicants in our Demography. With this being said, it always ends up that this guy has something against a certain Demography.


 


To respond to the age, I am over 50 and the newly hired were younger than me (in their 40's). I guess this is not much of an issue.


 


As long as this guy is the Manager, I thought of just moving on since I do not have a chance. The only reason that I wanted an answer is because my peers insist that I escalate this. The way they see it, I should be on TOP of the List and deserve the position. I also think this is a matter of standing up for my "Principles"


 


Please let me know. Thanks

Expert:  Joseph replied 1 year ago.
Hello Noel,

While you don't have 'direct evidence' of discrimination, such as overhearing your manager make derogatory remarks or racial epithets, it certainly seems that you have a great circumstantial case for both discrimination on the basis of race and age.

The fact that none of the applicants of a particular race were considered for the position, while having similar education levels and other qualifications as other applicants of a different race, is itself pretty strong circumstantial evidence that there is racial discrimination present.

On top of that, being denied consideration twice, while people of a different race and those younger than 40 were granted the promotional opportunities provides you with even additional evidence.

For your meeting, I would definitely suggest that you bring up these issues with your manager. While I hope for the best outcome for you at the meeting, given your manager's behavior and harsh managerial style, I'm not sure how well it would go.

Regardless of how it goes, I would strongly recommend that you file a complaint against your employer for discrimination on the basis of race and age in violation of the Fair Employment and Housing Act with the Department of Fair Employment and Housing.

You can do so using the information available online here:

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

The Department of Fair Employment and Housing will investigate your complaint on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your claim against your employer through a private attorney.

Like I said, you have a pretty strong case, so don't be discouraged from filing the complaint in addition to the grievance that you have already filed, as it's best to use all legal options available to you to protect your rights from being violated by your employer.

Since my goal is to provide you with the best service today, please don't hesitate to ask me any follow up questions.

If you don't have any, please remember to rate my answer positively so I get credit for my work!

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

Thanks you for your advise. Is it advisable that I ask to audio record the conversation? If the Manager refuses a recording? What should I do? I'm just concerned that since I am a timid type that he will exploit and take advantage of that meeting. Any thoughts? Thanks

Expert:  Joseph replied 1 year ago.
Hello Noel,

Yes, that could be extremely helpful for you. However, it's likely that the manager would 'watch his mouth' more than normal with the knowledge that he's being recorded.

Unfortunately, he would be within his rights to refuse to allow you to record, since California requires that both parties to a conversation consent to a recording before it takes place. Otherwise, any recording of a conversation is actually illegal and would not be admissible for the purposes of evidence or determining whether you have a cause of action or not.

You mentioned that you filed a grievance? I take it that you are a member of a union (unless I'm misreading that). If that's the case, have a union representative there at the meeting. If I misread that, you can request to have an intermediate supervisor or someone from HR present to witness the conversation and help ensure that you are not exploited or taken advantage of during the meeting.
Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
Joseph and 2 other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Hello Noel,

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.

Thanks Joseph.


 


I will definitely contact you for any legal questions in the future.

Expert:  Joseph replied 1 year ago.
Thanks Noel!

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Joseph
Joseph
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Extensive experience representing employees and management