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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34107
Experience:  Retired (mostly)
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I believe that you previously opined that my case might be

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I believe that you previously opined that my case might be considered as discrimination. Could the following case be considered as discrimination?

I was working as an intern in a state hospital on my student visa (F1) which provided me with a work authorization until August, 2009. In 2008, I was hired as a full-time staff psychologist. In March 2009, I contacted the HR in order to submit my application for H1 visa for which I needed the sponsorship from employer. In April 2009, the hospital informed me that they want my performance to be improved in a few domains and needed more time to observe my performance before they would sponsor my H1 visa application. I had been receiving positive verbal feedback indicating that my performance was meeting their expectation. In May 2009, I was injured at work and consequently out of duty. In July 2009, I received very poor evaluation for my work performance for the period (June and July) when I did not work because of the injury and treatment. In August 2009 (when I was still out of duty and under treatment), my F1 student visa expired and my employment was discontinued. I had been informed that I could appeal the decision in 30 days, and I had not appealed at that time. I am unsure what could have been achieved when my visa already expired. Expiration of my visa was the ground for termination of my employment.

In regards XXXXX XXXXX statue of limitation, could my medical condition (post traumatic stress disorder) be taken into consideration allowing me to pursue further? Psychiatrically, I could not confront issues related to the traumatic experiences until recently.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello again,

I reviewed our original Q&A session. In it, you never mentioned that the alleged discriminatory acts took place in 2009. The deadline to file a discrimination action is 300 days from the date of the alleged wrongful act. 42 U.S.C. § 2000e–5(e)(1).

In order to toll the statute of limitation for a mental health disability, the plaintiff must be deemed "insane," under Cal. Code Civ. Proc. 352(a). Insanity under the tolling statute is not equivalent to legally incapacitated. "Insane" means that the person is, "incapable of caring for his property, or transacting business, or understanding the nature or effects of his acts."

You would have to show that you have been insane for all but a term of less than 300 days since the last occurrence of a discriminatory act by your former employer.

Concerning the possibility of a written "breach of contract" action (which I observe was the subject of your conversation with the other contributor), and which is subject to a four-year statute of limitations under Cal. Code Civ. Proc. 337(1); or under the two-year statute of limitations for breach of an oral contract (CCP 339(1)) -- you would have to show that the employer promised to assist you in the renewal of your visa, either expressly, or by implication in your mutual conduct.

However, for the implied promise, the two-year statute of limitations would have already run, so you would be limited to the four-year written contract limitation period -- meaning that unless you can point directly to a statement in writing signed by the former employer, whereby it promised to take reasonable steps to assist you in the renewal your visa, then you would be unable to defeat the statute of limitations bar for a breach of contract claim.

I recognize that this all places you in a no-win scenario with respect to your former employer. The overwhelming majority of customers who come to this website have suffered a very recent legal injury, so when I originally answered your first question, the assumption that your injury was recent was reasonably made. Had you stated that it occurred in 2009, I would have written exactly as I have here.

The only other legal theory under which you could claim that the 300-day limitation period has not yet run, would be pursuant to the "continuing violation doctrine." The doctrine will toll the statute of limitations if, the employer engages in continuing acts of discrimination or retaliation, and: "(1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of 'permanence' so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile." Richards v. CH2M Hill Inc. (2001) 26 Cal.4th 798.

The fact that the employer did not honor a previous promise to assist you with a visa renewal would not be a continuing violation. The employer must continue with new/additional discriminatory actions.

I believe that the above covers every legal possibility. Please let me know if I can be of further assistance.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34107
Experience: Retired (mostly)
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