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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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A new director/professor took over at the Berkeley Seismo Lab

Resolved Question:

A new director/professor took over at the Berkeley Seismo Lab August 1 of last year. During the first two conversations after assuming the position, he said to me directly -"we have too many people here with grey hair." After the second incident, I reported this to three people in the Univ HR dept. I subsequent conversations, he said that "I made too much money..."

In December, I took two weeks off to attend to my mother after she had a stroke. The director noted in my review that he felt I could have gotten more project work done.

Last month I hurt my shoulder while at work. I reported it to HR and have gone the the Occupational Physician who sent me for physical therapy.

Today, I was formally notified that my position would be eliminated and I was laid off off effective July 5.

Thank you for your insight.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. I am so very sorry to hear that your position has been eliminated and that it appears age may have been a factor in that decision.

In the state of California it is illegal to discriminate against an employee on the basis of he or she being more than 40 years of age.

You should know, however, that proving discrimination can be very difficult to do, as there is rarely "smoking gun evidence" of discriminatory intent (i.e. a letter from the employer saying I'm firing you because your too old). Furthermore, the U.S. Supreme court held in Gross v. FBL Financial Services, Inc. that a plaintiff claiming age discrimination always bears the ultimate burden of proving age was the “but for” cause of the adverse employment decision.

So, not only would a plaintiff have to prove that age was a motivation, but that the adverse employment action would not have occurred but for the plaintiff's age.

In a case such of yours, it may be difficult to satisfy the above-stated burden of proof if your employer can demonstrate that there was a legitimate financial need to eliminate your position. However, if this can't be shown, or if other people in siminal positions were spared with less impressive credentials, then a valid cause of action for age discrimination certainly may exist.

I think the case would be much stronger if older employees were disproportionately more affected by the layoff. For example, if 30 employees were layed off and 20 of them were over 50 but those over 50 only made up 20% of the organization, that would tend to indicate a discriminatory motive. You may want to check around to see how many other older employees were laid off with you.

In general, an individual who believes he or she has been the subject of unlawful discrimination and wishes to file a lawsuit must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue an authorization to sue after they investigate the claim. A claimant need to file with both agencies. Finally, if an individual in your circumstance decides to sue, they must not miss their deadline. Under federal law in California, a claimant has 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: For information on how to bring a claim through the EEOC, visit this link:

So to summarize, while a valid cause of action for age discrimination certainly may exist on the facts described, it may be difficult to prove given the ruling in Gross v. FBL Financial that the plaintiff prove age was the "but for" cause for the adverse employment action. If older employees were disproportionately affected by the layoff, that would tend to bolster any allegation of discriminatory intent.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 5 years ago.
I am the only person affected by this layoff. Does that qualify as disproportionately affected
Expert:  Patrick, Esq. replied 5 years ago.
That certainly makes it sound less like a layoff and more like a firing concealed as a layoff, since layoffs typically target groups of employees at a time.

If you file a claim with the EEOC or DFEH, they will investigate this matter to determine whether legitimate financial reasons existed to eliminate your position. It may be wise to pursue that course of action, but of course you must decide how to proceed.

Again, my number one goal is that you are satisfied with my answer. If you still require further clarification, I am happy to continue assisting you.
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