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Can I be made whole for loss wages because of discrimination in the work place - systematic prevention of training an developmen

Temecula, CA |

I employed by the USPS.I am a disabled veteran. I am African American. I have been discriminated against on many occasions,I have played the political game for over 20 years & have not filed a claim with the EEoc, Labor Board, or the USPS EEO office for fear of further retaliation; I have been threaten within the last year and half with being moved out of my office and transferred further away from my home if i fail to comply with the PM/management decisions. I have been denied developmental jobs for promotions for over 10 years.I am certain based on my pigeon holed job (a position no one wants to do because you are unable to compete for future promotions), that my PFP rating have been lower than my junior peers even though I excelled year after year. I have spoken to PM - What can I do?

They have never shared the peer ratings - I have requested them and no response. I have worked in my current position for over 10 years; Junior supervisors not assigned to my office have filed positions I am trained and able to perform. No opportunity has been provided. No one wants to work in the finance area of the business and close down the office many late nights with no compensation - Use of a time-card is reason to be labeled as a non-conformist and will hurt any future promotions and retaliation will follow...

Attorney Answers 3

Posted

Failure to promote cases require extensive legal analayis and are challenging to prove.

Have you cosidered talking to a manager about getting you on a better track for promotion?

Or, you can try to find a lawyer on AVVO.com or CELAweb.org, who may be willing to analyze your facts.

If you can't find a lawyer, you can go to the EEOC or DFEH.

David

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is only licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies. Information posted in responses to legal questions and any other comments, opinions, recommendations, answers, analysis, references, referrals or legally related content or information (collectively "Legal Information") is not intended as legal advice or to create an attorney-client relationship between you and me. Such Legal Information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon such Legal Information. You understand that questions and answers or other postings to the Site are not confidential and are not subject to attorney-client privilege.

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

The asker cannot go to the EEOC or DFEH because he or she works for the Postal Service, so must follow the procedures for federal government employees.

Posted

I am sorry you have been faced with this situation.

The law provides that an employee must make reasonable attempts to timely address wrongdoing. While fear of retaliation is a real thing, and can be an excuse for some employee failures to act, it does not prevent the intervention of the law to cut off your rights in many circumstances.

First, you have an issue with the statute of limitations. That statute prevents plaintiffs from bringing claims that are legally stale, meaning too old. To make a claim of race discrimination under the more common and most protective statutes, you need to complain to an administrative agency (either the EEOC or the Department of Fair Employment and Housing) within one year of the act of which you wish to complain. A failure to do so usually results in a loss of your ability to claim damages from that conduct.

There is a theory that allows an employee to reach back more than a year called the continuing violation doctrine. However, to have access to that doctrine, you need to have made complaints to your employer, and the employer would have caused you to believe that there is a possibility that your complaints would result in something positive out of your complaint. Because you never complained, it would be virtually impossible to implicate the continuing violation doctrine.

There is a "catch-all" cause of action that does not have the one-year limit, but it still has a statute of limitations albeit a much longer one - the Section 1981 of the Civil Rights Act of 1866. This statute enacted shortly after the Civil War is still good law today, and it prohibits race discrimination in employment. However the statute of limitations is only a few more years long, meaning much of your claim will be time barred.

There is also another way your failure to complain will be a problem. The law generally requires an employee to give an employer the chance to protect the employee and do the right thing. A failure to report years of discriminatory conduct will not only run afoul of that concept, but it will certainly have an effect on the jury's beliefs as well. Their question: if it is really as bad as you say, and you were financially and emotionally injured so seriously for so long, then why not report it? And if it was fear of retaliation, what changed now? And if you were on the ball enough to know the discrimination was unlawful, then you must have also been on the ball enough to know that retaliating against you for reporting discrimination is also unlawful.

On a more fundamental note, you have made some sweeping characterizations in your factual recitation that you "have been discriminated against on many occasions." Although I recognize that you also state you are African American, you need to realize that most forms of discrimination are lawful and acceptable. If the discrimination you have faced is unrelated to your race, but is based on personality differences, office politics, jealously or past disputes, you are legally allowed to be discriminated against. If the discrimination you have faced is provably due to your race, it is, of course, unlawful. The challenge will be proving it was your race and not some other legitimate discrimination that caused you these problems. This is especially difficult in a very large organization like the USPS, where there are no doubt tens of thousands and probably millions of African Americans employed.

If you believe the discrimination you faced and are facing is the result of your race, you should immediately report the discrimination to the EEO office at your employer. Be thorough in your reporting. See if you get any assistance from that office. If you believe you need further assistance, it would be prudent for you to find and consult with a good employment law attorneys. Share some of the specifics with that attorney and you can get far better assistance.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Michael Robert Kirschbaum

Michael Robert Kirschbaum

Posted

Great response Neil.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I agree it is a great response in every way except that the asker cannot go to the EEOC or DFEH because he or she works for the Postal Service, so must follow the procedures for federal government employees. The employee must initiate the agency EEO proces within 45 days, not 300 days and not one year.

Neil Pedersen

Neil Pedersen

Posted

So true Mika. Nice catch.

Posted

You have an extraordinarily complex situation, though it sounds like you already know that.

First, you don't mention what kind of discrimination you have endured. Many people misunderstand the meaning of employment discrimination. “Discrimination” does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Under federal law, public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination. There is no federal protection for sexual orientation discrimination, but many states provide this protection.

An employer cannot refuse to hire, refuse to promote, change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. .

Failure to select and failure to promote cases are very difficult because there is a permissible subjective factor in every promotion or hiring decision. That said, if you do want to do something about your situation, you have to change your course. You've already seen that "playing the political game for over 20 years" has not gotten you anywhere. If management won't voluntarily budge, then you have to push.

If the discrimination you've been subjected to is of the kind the equal employment laws address, then you must initiate the federal agency process to address the discrimination. Because the process is detailed and counter-intuitive, I've written an Avvo guide to help federal government employees pursue their rights. Please see my Avvo guide to the EEO complaint process for federal government employees: http://www.avvo.com/legal-guides/ugc/summary-of-federal-employees-eeo-discrimination-complaint-process?published=true.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state. Be sure the attorneys you contact list that they represent federal government employees.

I hope you can resolve your situation and wish you the best.

Marilynn Mika Spencer
San Diego

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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