Information Re: FEHA case - New Info Found

[JohnErick]

Hello. I had posted a while back. I currently have a case pending with FEHA (boy do they move slow!). The complaint was received by me and signed and returned to them about 2 weeks ago. I was fired because using California Family Leave (CFRA) contributed negatively to my job performance stats and they used it to terminate me. My feeling was to avoid severance pay as a layoff happened a few weeks afterward.

Anyway, last night after wrangling with my former employer, they sent me a copy of my employee file in the mail (instead of letting me come in to view it). One paper caught my eye, I remembered this as a write up for attendance that I thought was not right as it probably contained at least one day that was an approved CFRA leave day. I complained to the acting manager at the time that made me sign the paper, but of course they never would check anything for accuracy. I had a printout of CFRA leave days from the company handling my ex-employer's leaves. When comparing them, I was right and I should never have gone on a a warning. However, this happened on August 10, 2009. Is there a statute of limitations on this, or can it be brought up to FEHA in the probable mediation conference? It's close, and the attorney guiding me is on vacation for a week! Help! Is this valuable to my case?

Also, I received an online note from an acquaintance from my old job confirming that the she had a similar issue at the time my issue was causing me problems at work. We both were on a final warning for job performance, she was out on a stress leave protected by FMLA. While I was fired for CFRA intermittent leave and a failure to meet in "another" job performance accountability in April, she had all ready failed her quality requirement for May before going out on her leave on May 7, 2010. She told me when she got back, because she was out on FMLA and did not have an entire month to fairly work on her quality, the issue was thrown out for the month of May and she was not fired. I was also only at work in APril for 1/2 of the month due to CFRA intermittent leave and they held it against me. Is this something FEHA needs to know about? It was also something that came up after the interview I had with them and after the complaint was signed.

I know they work on statute of limitations deadlines like everyone else... both in age of incident and filing and service. Should I attempt to reach them asap? I will try Thursday morning, but would appreciate some info ahead of the game. Thank you!

 

[Patricia_Young]

Never mind, I goofed.

 

[theretoo]

I believe that with FEHA, you have 1 year from the date of the last incident of discrimination, but you need to contact your FEHA case worker. Send them a copy. Since your case is already in the works, send them a copy and let them decided if it is usable evidence. Can't hurt to let them know. My former employer did the same thing. Wrote me up on numerous occassions for use of approved FMLA/CFRA. They don't care. Ask your case worker/attorney about retailiation for using CFRA and and bad faith insurance/self insured employers...all rolls into one, all the same thing. It costs the company money, they don't care about legal ramifications, they know it. Was the reason for your CFRA also a disability? I was out on disability leave, termed, etc.

 

[JohnErick]

Hi. Thanks for the reply!

I did send a certified letter to FEHA with the new information, which they accepted. It must have made it before the actual complaint was filed, as they additionally marked.... retaliation.

The CFRA was for the permanent disability of my partner. Some months are worse than others, we can go many months with nothing and then I need time. There was a substantial amount of intermittent leave used in April and May which I'm sure confused things even more. But I am the only one working, had exhausted all of my paid time off, so intermittent was the only option so I'd have something of a paycheck.

I realize this process with FEHA can take a very long time. I filed paperwork the end of May and the complaint was just typed up July 17th or so. Does anyone know how long the employer has to respond back to FEHA? Is there always a mediation conference if FEHA decides to move it forward after the employer responds?

I have an attorney that said he'd work on a contingency basis, but he wants to wait and see what they employer sends back to FEHA and to wait for the mediation, should it occur. He said if no resolution in mediation, he would opt to move it to a civil trial. The odd thing here is that since my initial meeting, the attorney and I are not doing anything. I sent him a doc with the new information as our meeting was before I had the additional info - he said he'd review it and let me know what he things, but it's been like 2 weeks. Would an attorney normally be contacting the employer to attempt to resolve the matter while FEHA is doing their thing? From what I understand, this is not unusual at all. At this point, unemployment is dragging on and I'm not really looking for a blowout settlement. I asked for 10k when FEHA told me to try to negotiate with the employer while the complaint was being drawn up, but they refused. Now they won't even talk to me about anything, and I'm technically just out here "waiting". Should I ask the attorney to contact the employer? I'm concerned we're not doing enough to engage them and get this done. I am not liking having my ex employers specter hanging over me and I'd like to move on. Any other suggestions?

 

[theretoo]

Sorry to be a bit late replying, I am not on often, but I did want to check in to see if you had responded.

FEHA - I was originally told that the employer would be given 30 days, but that DFEH may slide it to 60 if the employer needed more time, etc.

In my case, I filed in May '09 and by January '10, still no response from employer and DFEH had nothing to update me with. I had gotten an atty and we requested and received the DFEH blessing and right to sue letter. We filed suit in Feb. this year. It is now almost September, there has been 1 hearing and the judge ordered mediation within 4 months. We are in discovery stage right now.

Every case is different. Your attorney should know the ropes pretty well (I can suggest a NoCa atty if you are interested and want to PM me). My case is on contingency fee as well, pretty common in CA as laws clearly state "employer responsibility" in terms of disability leave. Since your leave is for your partner, I am not sure if there are any differences in the laws in that regard, but all I can say with DFEH, is hurry up and wait. I waited 7 months with no employer response or updates of any kind and I decided to file suit.

No, my understanding is that an atty will let DFEH do it's investigation to see what the employer says. That is the crucial part for your atty. is to know what the employer "defense" is to the complaint. So really, your atty can't do anything more than DFEH can at this point. Your atty will be handy if you choose to go the mediation route with DFEH or choose to file suit.
Your atty wants to know what your employer's defense is before they can say much. If your former employer refuses to resolve the issue, then your atty can pick up from there.