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It all depends on what the unlawful termination action alleges. If you are solely suing under a theory of wrongful termination based on discrimination due to a protected category, then you would have 90 days to bring a lawsuit upon receiving the right to sue letter. An EEOC investigation does toll the statute of limitations until the time period where you receive the letter. The only exception to this is if the District Director gave you a written notice of intent to reconsider before the 90 days is up. So, you would need a granted extension of the 90 day filing period before the 90 day period expired.
The two years that you are referring to would be for wrongful termination based on the breach of an oral contract. The EEOC investigation would not toll this date. However, if your wrongful termination claim is based on Title VII of the civil rights act of 1963 or the ADEA, or the ADA, then it would be tolled and you can file the claim within the 90 days of receiving the letter.
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Does all of that make sense?
It does make sense.
However, I believe I will have to defend the motion to dismiss and also for sanctions.
The suit is for wrongful termination of employment, but not based on an oral contract.
and you filed with the EEOC within the original time limit to file with them?
The suit alleges a breach of the implied covenant of good faith and fair dealings.
The suit was filed within the 90 days given by the EEOC after the conclusion of its investigation.
Yes, the complaint with the EEOC was filed within a few months of the termination.
Is that the only thing that you allege?
I believe so, I don't have the complaint in front of me.
However, I can file an amended complaint if it will cure any defects.
The defendant hired the nephew of the supervisor just before the termination.
I only just discovered this fact.
So a duty of good faith and fair dealing is a claim brought based on the basis that the parties had a duty to refrain from doing something which would render performance of the agreement impossible by any act of its own, and also the duty to do everything that the contract presupposes that each party will do to accomplish its purpose. This is separate from the types of claims that the EEOC handles. The EEOC deals with wrongful termination based on age, disability, equal pay/compensation, genetic information, national origin, pregnancy, race, color, religion, retaliation, sex, or sexual harassment. Did you allege any of those things with the EEOC?
Yes, the complaint with the EEOC alleged discrimination based on national origin.
East Indian employee.
Okay, so you would need to amend the complaint to wrongful termination based on national origin. That statute of limitations has not run. However, under Cal. Civ. Proc. Code §339(1), for claims based on an oral agreement, the limitations period for a breach of covenant of good faith and fair dealing would be two years.
The Supervisor is a Latino-American, and hired his wife's nephew just before the termination.
In fact, the fired employee was asked to train the new hire.
The only way to keep the breach of covenant of good faith and fair dealing claim would be to argue that the sol is four years as it is based on some written instrument under Cal. Civ. Proc. Code §337(1), which would be difficult as you said there was no written contract
But would the statutory period be tolled by the EEOC investigation?
For the wrongful termination based on national origin yes, for the wrongful termination based on a breach of covenant of good faith and fair dealing no
Assuming I amend the complaint to add a second cause of action for discrimination based on national origin, the EEOC found no evidence of discrimination.
However, the EEOC still granted a 90 day right to sue period in its notice.
An EEOC right to sue letter is issued when you have a case, but when they do not want to pursue it any further. They are saying there could be a wrongful termination here based on national origin, but you have to pursue it further if you want to. Had there been no grounds for a wrongful termination lawsuit, then you would have received a Dismissal and Notice of Rights letter that gives you the right to sue, but tells you that they just don't see it.
eVEN IF i AMEND THE COMPLAINT, i BELIEVE IT WILL BE VERY DIFFICULT TO PROVE DISCRIMINATION, BECAUSE THE ALLEGED REASON FOR THE TERMINATION DOES NOT MENTION NATIONAL ORIGIN, ETHNIC ORIGIN OR RACE.
I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less. Had you brought the breach of covenant of good faith and fair dealing within the two year period, you could have pursued that claim. If you were incapacitated during any period over the last two years, you would have brought that claim.
Discovering the relationship between the new hire and the supervisor will only show nepotism, at best, right?
Sometimes, it seems, even if one feels an injustice has been committed, that it may be best to cut ones losses.
Well, the best advice I can give in this situation is to say that whenever an injustice occurs, the best thing you can do is go on www.Martindale.com and start calling attorneys. Then, you will either be protected because an attorney will do their job (likely on Martindale) or else you will have a good legal malpractice claim against them
Martindale is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. You may want to consider calling an employment attorney off of Martindale to make sure there aren't enough facts to put you into a protected category.
At this point, amending the complaint may defeat the SOL challenge, but it will not enhance the merits of the claim.
I just want you to be aware of all of your options.
I will call an employment attorney in San Francisco in the morning, before I decide to request a dismissal.
I cannot tell you how many times I have been on the phone with someone thinking that all hope is lost, then about 30 minutes in, they say something which changes everything.
That may be the case here, but I will try to be as thorough when I discuss this matter tomorrow.
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Yes, you have, thank you.
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I will do so.
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Just one more thing
How does nepotism affect a discrimination allegation?
Unfortunately, it affects it negatively. The employer can easily say that they hired the person because of nepotism and not for an illegal reason. It give a legitimate explanation for your termination that does not fall within the grounds of termination,
based on a discriminatory purpose
Does that make sense?
Yes, that makes sense.
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