northern ca discrimination case currently with feha

i have seen atty's from the sf area have posted here and may have access to dfeh case info on-line
mine should be right there, filed in april '09, i am in solano county

i will try to be brief in the details, however, i am note that i am currently looking for representation for myself in the case. my current thoughts are to bring an atty on board for litigation at the completion of the feha investigation

last i knew, the current status of the case was that the employer has refused to respond to feha and at the 90 day mark was going to subpoena the employer, which would have been last month, the 90 day mark

i am lucky enough that my employer documented the whole case for me over at least 7 months and i have provided the feha with at least a dozen documents that include the following; guess they were counting on their abusive actions to 'intimidate me into submission'

3 corrective action write ups by direct sup and manager for using approved intermittent fmla/cfra time, threatening me with my job, yes, they actually wrote that my 'excuse' for the 'unapproved imte off' was fmla and that was insufficient cause although the intermittent fmla/cfra had been approved by the 3rd party administrator, sup and manager threatened me with my job if i did not correct 'my schedule'

no reasonable accomodation was ever offered and in fact, they went completely out of their way to ensure they made it as difficult as possible for me

denial of continuous fmla/cfra for same disability as approved intermittent time

denial of short term disability benefits

recent internet posting on 'ripoffreport.com' posting my full name and home address stating that i am 'psychologically unstable' for claiming that i am 'disabled' and that i am ripping off the state of ca for 'claiming' disability

workers comp claim also in the works; qme agrees to psych injury due to continued workplace harassment/abuse

my disability is not in question with my health care providers and they continue to provide documentation as required

employer is based in north carolina, they use a 3rd party entity to administer in new york for both fmla/cfra and short term disability administration

3rd party administrator continually calling and harassing my physician's office for more and more info then claiming denial of std and fmla/cfra based on 'not enough medical information'.

i was told when i was employed there that the employer 'does not work with doctors', clearly, they have documented this to be the case for me

employer of course is trying to avoid liability by using a 3rd party administrator, however, they are liable in ca, whether they like it or not - they are self insured for std and ltd

comments please from the attorney's on the board

....and.....

i went out on disability in feb. 09, about a week after offering my resignation to the company due to the continued harassment/threats to my job for using fmla/cfra and disability time. hr told me i had to give a specific date and i told them i did not have one, that the date might change. my resignation clearly stated that the reason for my resignation was that the work enviornment was not conducive to my health.

went out on fmla/cfra/disability, in feb. '09, received my personal belongings and final paychecks the 1st week in march after i had notified hr that the fmla/cfra/disability release date was indefinate as i did not have medical release at that point, so the march date in my letter of resignation and initial fmla/cfra paperwork would be indefinate until further notice. i was not given medical release until late may, 09 and i am now on unemployment, or actually, that has been denied also....

i called, emailed and snail mailed employer the first month i was on disability to discuss further with hr and no one would respond.

employer denies everything from the written corrective action to the denied medical leave to denying unemployment. clearly, they feel they have no responsibility as an employer in any way shape or form....

Tough case keep looking for an attorney I do not recommend Pro Se litigation.
JoeC (McGruff)

with ca disability law, it should be pretty cut and dry, the ca department of fair employment and housing would not have taken the case otherwise. the proof for disability discrimination in my case is was i treated differently than other employees - yes was i denied fmla/cfra and return to work rights based solely on the type of disability i have - yes was i denied fmla/cfra based soley on the type of disability i have - yes

from what i have found on the internet about the 3rd party administrator, they actually have a policy in place to approve intermittent fmla for 'depression' but not continuous fmla. with new fmla laws, that would be a federal compliance issue

aside from the federal, ca state cfra = federal fmla, but is more employee friendly and a medical 'reason' or diagnosis is not required. under ca state disability law, depression is a disability and ca state law will trump fed law. if there is a fed fmla violation, then there certainly is a cfra violation and then some. if the employer thinks that 'depression' does not fall under new adaa law, it certainly does under ca state law. in ca, employer's can't 'blame' a 3rd party administrator. ca is not known for being 'employer' friendly by any means, the employer is liable for the actions of the 3rd party administrator as well as their own.

i am currently looking for an attorney to represent me as well as to work with the feha through the investigation process. the state can and will file charges as required upon completion of the investigation, however, the state process generally works toward 'settlement' as a resolution. my concern with filing suit is how long an employer can drag their feet through a litigation process, and my former employer is known for dragging their feet at all costs. i have contacted ca employment law council in my area and i am waiting for a response from them st this time. my general questions at this point are about the litigation process. we all know that 'time' is the ultimate negotiation tool, the longer they fail to respond and the longer they drag their feet, the figure the higher the chances the case will be dropped. curious to hear from ca state employment attorney's on the litigation process in this type of case.

I can't say, based on what you have posted, that you have a clear case of discrimination. Nor does the fact that the DFEH took your case mean you actually have a meritorious case. What it means is that the information you gave them at your initial interview, if proven, would be a violation. However, many cases turn out to have no merit after the investigation is complete. I can tell you that it will most certainly take the full year from when you filed the complaint to complete the investigation. Particularly if the employer is ignoring the DFEH. It could in fact take longer than a year if discovery enforcement is necessary.

Whether you get an attorney, or stick with the DFEH, is a personal choice. There are pros and cons to each. However, I wouldn't think you would need to retain an attorney during the DFEH investigation, particularly if you have to pay the attorney out of pocket. It's not really necessary until you get to settlement. It's likely that if you find an attorney that thinks you have a good case, they will recommend getting a right to sue letter immediately and proceeding to court, rather than spending time at the DFEH.

The truth is, litigation takes years. There is no way around that, whether you have a private or government attorney. Assuming the DFEH completes its investigation and issues an accusation, you won't see any judgment for at least another year or so. Add an additional year if you're in civil court.

Thanks for posting Endeavor that post was complicated.
JoeC (McGruff)

agreed, dfeh states that it can take up to a year before they will have any answers to the complaint. what was given to them was hard copy of all of the write ups and denial letters as i received them. my former employer also had a case against them in 2006 for retirement and erisa violations, so this is not unfamiliar territory to them. the case was in ohio. plantiff won as ohio law was not considered in the employer's action with the employee.

i am not sure how any of what was given to dfeh would 'not' be proven as it was sent to dfeh as i received it, including medical documentation, etc.

the information i relayed was from the dfeh rep handling my case. after reviewing the documents at the initial interview, her response was that my rights had clearly been violated. of course through investigation, there will be more information discovered, i am sure.

i am still awaiting the call back from the local law office to discuss further.