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Would it matter for law suit and court purposes if the eeoc…

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Would it matter for law...
Would it matter for law suit and court purposes if the eeoc did not gather sworn testimonies
Submitted: 1 month ago.Category: Criminal Law
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Answered in 2 hours by:
1/12/2018
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago
James Daloisio
Category: Criminal Law
Satisfied Customers: 230
Experience: 30 years experience in criminal law, continuing education.
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Hi, thank you for requesting me for this question.

The short answer to your question is "no." If you filed a charge with the federal EEOC, that would trigger several events.

1. They would automatically cause a concurrent state action to be initiated;

2. They will investigate. In the course of the investigation they might conduct interviews but it is not usual to take sworn testimony at this stage of the proceedings. Sworn statements (depositions) are usually part of the discovery process after a lawsuit has been filed.

3. Depending upon the nature of your discrimination, it might be possible to file a lawsuit before the EEOC completes its investigation:

A. If less than 180 days has passed, and they will be unable to complete their investigation within 180 days, you can request a Notice of Right to Sue;

B. If 180 days has passed, they are required to give you a Notice of Right to Sue if you ask for one.

Also bear in mind that the EEOC, if they find reasonable cause that discrimination occurred, may file their own lawsuit if they're unable to resolve the issue through conciliation.

Hope that answered your question. You can always return here with follow up questions on this topic at no charge. Please don't forget to rate this answer, and thank you again for requesting me and for using Just Answer.

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Customer reply replied 1 month ago
I am in summarry judgement right now. Its not a sworn testimony but it does show the company is making several statements that are not true. This would be response to summary judgement. I am trying to find the pro se manual at this websitehttp://www.txwd.uscourts.gov/FWOA/SitePages/FilingWOAttny.aspxWould you be able to assist me I am so confused and can not find the format.
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Hi,

First things first. What court are you in? Every court has its own rules so I need to know where the action is being litigated to make sure that any response conforms to the local rules.

Second: Summary judgment only applies when there are no issues of fact to be resolved. If you are contesting the veracity of the company's statements then there are triable issues that would prevent a court from granting summary judgment.

So let's start with the court so we can get you the proper format.

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Customer reply replied 1 month ago
Could you please explain. This is federal court. Does that help.
Customer reply replied 1 month ago
it would be the company producing summary judgement.
Stating the case should be dismissed based on certain statements. Not facts. Well in my opinion not facts.
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Yes. You are in Federal District Court somewhere in Texas. Can you tell me where? Aside from that:

Here's the standard:

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A "material fact" is, simply, any information provided by a witness that could affect the court's decision.

In your motion all you have to do is (a) set forth the statements that are at issue, (b) explain why they are "material," (c) and ask that the motion be denied under rule 56(c).

The burden does not shift to the non-moving party until the moving party, i.e., the one requesting summary judgment, has met its burden: The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact.

Only if the moving party meets this burden does it shift to the non-moving party to demonstrate that there is a genuine issue of material fact. In so doing, the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial. The non-movant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." You have to provide the court with specific facts demonstrating a genuine issue for trial.

That said, the proper format for a response to a summary judgment motion would be the standard motion format for federal district court. You can view several sample opposition motions at the following links:

http://www.ifs.org/wp-content/uploads/2014/06/Brief-in-Opposition-to-Summary-Judgment.pdf

https://www.justice.gov/atr/case-document/file/641816/download

http://moritzlaw.osu.edu/electionlaw/litigation/documents/MemoranduminOppositiontoMotionsforSummaryJudgment.pdf

Don't be intimidated by these motions. Just wanted to give you an idea. You can prepare a simple response by following rule 10 below.

Here is the link to the Federal Rules of Civil Procedure. You should study pages 14 through 18 on form of pleadings, particularly rules 10 and 11 on page 17, and page 79 on summary judgment. Courts want short, clear and concise motions.

The best advice I can give you is try to think like the judge. The judge is going to look for "material facts" that are in dispute. So your job is explain why these statements you are referring to are "material" and why they are disputed, AND that you have evidence that will contradict those statements. That is what a summary judgment response is about.

I'm presuming that the judge has ordered you to respond to the motion, correct?

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Customer reply replied 1 month ago
western elpaso
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Thank you. Let me check....

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Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago
Here is local rule CV-10http://www.txwd.uscourts.gov/USDC%20Rules/Online/Civil/cv-10.pdf
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Customer reply replied 1 month ago
Ok. Awesome. Now I have a conversation from the eeoc stating some director let me go because my insurance benefits were denied. Same person makes another statement contradicting her original statement.
Customer reply replied 1 month ago
My apologies Mr. Daloision. Hi..
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

It sounds like the contradictory statements are all you need to get past the summary judgment motion. When considering a summary judgment motion, the judge does not weigh evidence or consider witness credibility. All they are interested in is whether there is an issue of material fact in dispute that has to be resolved by the trier of fact, i.e., the jury.

Apologies are never necessary here. :)

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Customer reply replied 1 month ago
the judge has. The judge has denied my case. It is the same judge.
I am worried he will most likely deny my case again.
Customer reply replied 1 month ago
Is it possible to request you in the event my future questions do not follow the guideline to the original question.
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Best you can do is just focus on that motion. Don't get distracted. Write a simple response that clearly shows the materiality of the statements at issue and the fact that evidence will be presented to the trier of fact that will allow them (the jury) to decide the case.

Yes, you can request me if you like; just specify that the question is for me. Typically there will be a lock on the question for a specified period of time, and if I'm not readily available it will open it up for someone else. If you do not want someone else to address the issue and you don't mind waiting a bit for me to get to it, you can specify in the question that it is for me only. I've had other customers do that successfully.

And of course you can always just post it here in this thread.

I'm curious about what you mean when you say the judge "denied" your case. If the court made an adverse ruling on an issue there should be a written order explaining the ruling; you should be studying that ruling to see why the court reached that decision and perhaps you can do something differently.

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Customer reply replied 1 month ago
The case was denied because the defedant stated i did not file in a timely manner. 90 day presumption rule. The attorney at that time was able to reverse that decision but stated that since he already denied my case he will most likely not rule in may favor again.
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Ok, not knowing the history of the case I can only speculate, but time limits are, generally speaking, "jurisdictional." Some time limits may be breached if you have reasonable cause, and that sounds like what happened. The fact that you missed one deadline doesn't mean the court will be biased against you. Just make sure you file everything on time. And deadlines are quite different from a summary judgment motion, although there are time requirements for the filing of responsive pleadings.

As a general rule, most judges, despite what they might think of you or your case personally, have one overwhelming concern: they do not want to be "reversed" on appeal. That means they'll do all they can to correctly follow the law. And that's why I say just focus on the job at hand. Understand your legal issue, under the rule, apply it to your facts, and you should be good to go.

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Customer reply replied 1 month ago
Awesome. Thank you so much.
Customer reply replied 1 month ago
I am not able to find rule 10
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Here is the local rule

RULE CV-10. FORM OF PLEADINGS

(a) A pleading, motion, or other submission shall be typed or printed in 12 point or larger font (including footnotes), double-spaced, on paper sized 8½” x 11” with one-inch margins on all sides and shall be endorsed with the style of the case and the descriptive name of the document. Headings, footnotes, and quotations more than two lines long may be singlespaced.

(b) A pleading, motion, or other submission filed by a represented party shall contain the mailing address, e-mail address, signature, state bar card number, and telephone and fax numbers, including area code, of the attorney.

(c) A pleading, motion, or other submission filed by an unrepresented party shall contain the party’s mailing address, e-mail address, signature, and telephone and fax numbers, including area code.

(d) An unrepresented party and any attorney representing a party must timely inform the court of any change in the party’s or attorney’s mailing address, e-mail address, signature, or telephone or fax number. The court may sanction a party for the party’s or the attorney’s failure to do so, including dismissal of the party’s claims or defenses.

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Customer reply replied 1 month ago
Awesome i guess it has to download and rule 56
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Federal Rules of Civil Procedure, Rule 56:

https://www.law.cornell.edu/rules/frcp/rule_56

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Customer reply replied 1 month ago
this works in elpaso texas
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

The Federal Rules of Civil Procedure are for all federal courts. Each court will, in addition to the FRCP, have "local rules."

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Customer reply replied 1 month ago
Amazing the company is disputing the fact that the doctors note mentioned that i was a threat to others... i have a condition .. bipolar disorder,,, they are stating even though their statements have contradicted each other that because i was threat i was no longer offered employment? are they not supposed to ask for additional clarification from the doctor if that be the case? and would that violate the ada act?
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Bipolar disorder is a disability under the ADA and HIPAA.

The EEOC will treat any such diagnosis as a disability.

At this point it sounds like you have sufficient contradictions to avoid summary judgment.

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Customer reply replied 1 month ago
Awesome. I am getting my draft ready, I will keep you updated.
Customer reply replied 1 month ago
I had the diagnosis before getting treated to the facility.
Customer reply replied 1 month ago
How would you approach them stating that they are firing me because in the doctor record it mentions i was a threat to others.
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

At this point all you are looking for is conflicts to establish a material fact in dispute. You said that their statements contradicted each other. If one statement helps you and the other hurts you, you have a disputed issue of material fact. Summary judgment is not about the merits of the case. It's only about whether there are issues for a jury to decide.

Not knowing about your case, I couldn't give you legal advice on how to proceed. Not sure that would be ethical. Just focus on your summary judgment response.

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Customer reply replied 1 month ago
10) If a party disputes a fact based in whole or in part on an evidentiary objection, the ground for the objection should be specifically stated. Do not submit blanket or boilerplate objections to the opponent's proposed undisputed fact; the boilerplate objections will be overruled and disregarded. For example if they are providing a statement from the company what rule do I use to object to that statement?
Customer reply replied 1 month ago
Company made a statement that they drove me to the hospital and in fact my father did. If he writes a notorized statment how do i show a rule to prove that what they are presenting is false under what rule?
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

Under Rule 56(c)(2), a party can object to material that is inadmissible.

If the other party alleged that they drove you to the hospital, and in your response you include an affidavit from your father stating that he is the person who drove you, then the grounds for your objection would be that their allegation "misstates the evidence."

But you would also have to explain why that is a "material" issue. Would a reasonable person expect that the identity of the person who drove you to the hospital would somehow affect the outcome of the case?

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Customer reply replied 1 month ago
He was the individual (father in charge of taking me to work). If he makes affadivit because he remembers, would I file that under rule 56c2. And would I use that same rule for previous statements that were made from eeoc and the physician?
Customer reply replied 1 month ago
I will be able to call in in couple of hours and take some notes is that okay?
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

The rule is just a rule. You would include the affidavit with your response to the motion for summary judgment.

You would cite rule 56(c)(2) if you were trying to exclude evidence that is inadmissible for some purpose. In your example, you are objecting to a statement because it misstates the evidence. "Misstates the evidence" is a recognized objection and if supported, should be sustained and the statement would not be admitted. Other statements might be inadmissible for similar reasons, or a multitude of other reasons.

I can clear my calendar for a phone call soon. Let me know when you're available and I'll set it up.

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Customer reply replied 1 month ago
Would it be best to get a notorized statment or a sworn affadavit???
Criminal Lawyer: James Daloisio, Lawyer replied 1 month ago

28 USC 1746 provides the form for sworn and unsworn affidavits. All you need to do is have him sign under penalty of perjury.

Here's the statute:

https://www.law.cornell.edu/uscode/text/28/1746

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Customer reply replied 1 month ago
How do i get the form this is what i am viewing
28 U.S. Code § 1746 - Unsworn declarations under penalty of per­jury
US Code
Notes
Authorities (CFR)
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Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”.(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.(Added Pub. L. 94–550, § 1(a), Oct. 18, 1976, 90 Stat. 2534.)
Customer reply replied 1 month ago
It mentions unsworn statements under penalty of jury, not sworn.please advise
Customer reply replied 1 month ago
Let me gather what I am doing to get ready for the phone call.
Customer reply replied 1 month ago
At the time that I was working with this company I had a pending trial. I was found guilty and the company is using a statement from the elpaso county and is stating it can be allowed because it is a public record
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