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Thoreau (T-USA)
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I am a protected class California based worker, female over

Resolved Question:

I am a protected class California based worker, female over age 50. My employer is headquartered in Fargo, North Dakoka. I was terminated on October 7th for poor performance in my sales job. My most recent performance evaluation was excellent - exceeding expectations. I've had no performance warnings, counseling or corrective action. A secondary reason given was company budget underachievement. Several of my peers have had a very poor performance and are still employed. I am a documented top performer. Is this a possible wrongful termination? I believe having been fired rather than laid off the company's objective is to avoid unemployment insurance liability. Do I have grounds to seek a settlement?
Submitted: 5 years ago.
Category: Employment Law
Expert:  Thoreau (T-USA) replied 5 years ago.

Answer:

Thank you for your question.

You may have grounds for a successful discrimination suit. As you are aware, an employer cannot terminate you (or select you specifically for layoff) due to gender or being over 40 years old.

The problem with a discrimination case is showing that the termination resulted from discrimination related to gender or age. While it's usually better for a plaintiff to have some harder evidence, circumstantial evidence can be used to support such a claim. Accordingly, the fact that you were terminated for "poor performance" in spite of shining employee reviews can be used as evidence that the employer had ulterior motives for terminating you. This, along with information about employees who were retained, may be enough to help you succeed in such a suit.

Your plan to go to the EEOC is wise. In fact, it's actually necessary to progress through the EEOC for a discrimination claim prior to filing suit. Once you have exhausted the EEOC process, you may then have a private cause of action. However, the EEOC must first be given an opportunity to address the matter.

You should contact the EEOC immediately. There are very strict (and short) deadlines involved. Once the deadlines pass, you will not be able to pursue the matter. Accordingly, you should contact the EEOC as soon as possible.

You can find the EEOC online at:
http://www.eeoc.gov/

If you need additional clarification, please ask a follow-up question and I will be happy to elaborate. Please remember that we cannot provide legal advice/services through JustAnswer.

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If you need legal advice/services you should seek, in person, a local attorney as soon as possible. You can find one at: http://www.lawyers.com or http://www.martindale.com.


_____________________________________

Disclaimer

Laws vary drastically by state and country. It is impossible for an attorney to provide legal advice or legal services on JustAnswer. What follows is neither legal advice nor a legal service and may/not apply in your particular state. What follows is general information provided for educational purposes only. No attorney-client relationship is formed. T-USA is not your attorney. No attorney-client privilege exists. Anything you write can be used in court if discovered by an opposing party.
The following information is provided for the purpose of encouraging you to seek, in person, the counsel of an attorney who is licensed to practice law in your particular state. It is essential to consult such an attorney as soon as possible.

Thoreau (T-USA), Lawyer
Category: Employment Law
Satisfied Customers: 9176
Experience: Attorney
Thoreau (T-USA) and other Employment Law Specialists are ready to help you
Customer: replied 5 years ago.
Does the fact that my employer is headquartered in North Dakota impact my potential State of California based argument? My primary work area is California. It appears my argument is more centered around age and gender discrimination. There are many other women in my age group on staff in various divisions of the company. Does that weaken my case?
Expert:  Thoreau (T-USA) replied 5 years ago.

Answer:

Thank you for accepting the previous answer!

The actual headquarters of the employer should not matter provided your employer operates in California. California should still have jurisdiction over the matter and you should still be able to file suit there as a result after the EEOC process is complete.

As you can imagine, if actions were being taken company-wise against women over 40, that would provide additional evidence. However, if such actions are only being taken in a particular office, there may still be sufficient grounds to succeed on the suit. The trick is showing that being a woman over 40 is the reason for discrimination.

Accordingly, more women in your shoes serves your case better than fewer. That said, it is only necessary that one person be penalized for being a woman over 40. The trick is showing that the penalty was due to being a woman over 40.

So to answer your question, all else equal, that doesn't weaken the case. However, it certainly doesn't help the case. Further, if it was a company-wide discriminatory effort, it could add some strength to your case.

Don't forget to contact the EEOC as soon as possible to ensure that deadlines do not lapse.

If you need additional clarification, please ask a follow-up question and I will be happy to elaborate. Please remember that we cannot provide legal advice/services through JustAnswer.

Please click the green
Accept Button for each and every answer and leave Positive Feedback so that I receive credit for answering your question. Bonuses are greatly appreciated.

When leaving Feedback, please remember that Feedback is left for me as an answerer, rather than the content of the answer. While I enjoy to providing customers with the answers they want to hear, doing so is not always possible.


If you need legal advice/services you should seek, in person, a local attorney as soon as possible. You can find one at: http://www.lawyers.com or http://www.martindale.com.


_____________________________________

Disclaimer

Laws vary drastically by state and country. It is impossible for an attorney to provide legal advice or legal services on JustAnswer. What follows is neither legal advice nor a legal service and may/not apply in your particular state. What follows is general information provided for educational purposes only. No attorney-client relationship is formed. T-USA is not your attorney. No attorney-client privilege exists. Anything you write can be used in court if discovered by an opposing party.
The following information is provided for the purpose of encouraging you to seek, in person, the counsel of an attorney who is licensed to practice law in your particular state. It is essential to consult such an attorney as soon as possible.



Edited by T-USA on 10/9/2009 at 10:55 AM EST

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