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ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 15606
Experience:  Licensed Texas General Practice Attorney
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An Hispanic employee who was not covered under FMLA, was placed

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An Hispanic employee who was not covered under FMLA, was placed on layoff several weeks/months after having a baby, and, was not recalled, but, was, instead, permanently replaced by the Black employee who had been hired as her temporary replacement. The Black employee, who had superior credentials, was retained over recalling the other employee because she was more cooperative and more of a team player. The initial charge of discrimination was based on pregnancy, but, apparently, because the discharged employee was not in a protected class (pregnant) at the time of the adverse action, the charge has been amended to "racial discrimination" based on "newly acquired information".
The employer has not been required to submit additional information, but, has been given the opportunity to provide any additional information deemed relevant by a specific deadline. As the employer, what, if anything, should be submitted in response to these newly fabricated allegations?

ScottyMacEsq : Thank you for using JustAnswer. I am researching your issue and will respond shortly.
ScottyMacEsq : While not being required to answer it, I would still answer. The reason is that there is a prima facie case, where the plaintiff is required to establish that her termination occurred under circumstances giving rise “to an inference of unlawful discrimination". After the plaintiff establishes this, the burden shifts to the employer to explain a legitimate non-discriminatory reason for the adverse employment action taken.
ScottyMacEsq : It's a good idea to lay out that reason, so that the weight of the evidence shifts to your side.
ScottyMacEsq : The fact that the black employee had superior credentials, and was more cooperative and more of a team player would be relevant.
ScottyMacEsq : If you have any internal communications (emails, etc...) prior to the termination of the hispanic employee that show that she was more of a team player, etc... and certainly don't consider race as part of it, I think that this would certainly benefit your case.
ScottyMacEsq : Furthermore, if there were other similarly situated employees as her, that we Hispanic, and were not terminated, that would establish that this was a special case, not the norm, and not indicative of racial discrimination.
ScottyMacEsq : So long as race was not considered, and you can show valid considerations, I don't see any reason not to respond to this allegation.
ScottyMacEsq : Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
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