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How do I calculate actual damages and punitive damages?

Escondido, CA |

I filed and EEOC complaint against my employer ( a large drug store chain) and they have requested mediation. The mediator contacted me and asked me to submit a proposal.

I was disciminated against by one Manager for having cancer. I have been going through chemo for three years and was with this one manager for only 1 year. Never had any issues with any other managers. I was passed up for promotion. When I had chemo scheduled, it was written on the schedule for all to see. I was told that my performance sucked after my treatments.( I am on a maintence treatment that does not affect me and in remission). I was written up for "performance issues" and attendance ( i missed 3 days in a year) and others whose attendance was worse were never written up. Others who had actual performance issues were not written up. I have evidence in the form of pictures and documentation.

Attorney Answers 4


To calculate damages, more info is needed. What is your claim? Have you lost wages, if so how much? Have you lost benefits, if so which ones? You won't get punitive damages in an EEOC mediation. You should contact an attorney to assist you. Most times, an attorney can get you what is fair and get your former employer to pay your attorney. Many employment law attorneys take discrimination cases at no cost to the client. The EEOC is only one option. A demand letter and negotiations by your attorney and the company or its attorney is usually more beneficial since you have an advocate for you instead of the EEOC which is a neutral entity. 949-481-6909.

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I agree that you should seek out legal representation. Your chances of prevailing will be much greater than if you continue alone.

Attorney Inga Stevens is licensed in Maine. She provides general information on No attorney-client relationship arises out of the information given here.

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You REALLY should consider retaining representation at this point. Why jeopardize your case by trying to handle it on your own?

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You have a lot riding on the EEOC process and no one on Avvo can possibly give you the detailed information you need to effectively move forward. What I can tell you is that EEOC mediators handles cases in various ways – not all of them helpful to the employee. Know that just because the mediator asked you to submit a proposal, it doesn't mean the employer already agreed to mediate. And know that as a lay person, you are not in the best position to know the many posible options for settlement. You don't know how strong your case is on the merits. You don't know how much clout you have. All of this is critical to valuing a case.

No one can tell you how much your case is worth without knowing what happened, the employer's response, if and how you were harmed, your potential compensation package, and much, much more.

In nearly every case, you need your own attorney for employment litigation, mediation or settlement. Regardless of whether you are in your state agency or the federal Equal Employment Opportunity Commission (EEOC), the agency is not your representative. A mediator, settlement officer, investigator or other representative for the agency has one client – the government. Some agency representatives are great and will do their best to protect you rights even though they are not your advocate. Some agency representatives stink and care more about closing the case than they do about the person who filed the charge.

Because the agency has a particular mission and because it is not representing you, if it turns out your interests and those of the agency clash, the agency representative is required to make sure the agency’s goals are carried out, not yours.

Also, the agency will only consider issues relevant to laws the agency enforces, such as discrimination laws. It will not consider such things as employer liability under wage and hour laws, mutuality in a settlement agreement, circumstances under which you might have to return the money, the language of a settlement agreement (which could have all kinds of "gotchas" that the agency doesn't notice or doesn't deal with), and more.

In addition, agency representatives most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the agency rep may interpret your case as low-value, even if it isn’t. Of course the agency representative may learn the value of your case during the process, but why start off with such a large obstacle?

Similarly, without an attorney, the employer probably won't take you or your case seriously and may be able to take advantage of you. No one is watching your back if you don't have your own attorney.

Consider that the employer most likely has an attorney or has consulted with its attorney. Even if the employer doesn't have an attorney, it usually has human resources personnel who have been down this route before and know far better than you do how to use the system to its own advantage.

It is nearly always the case that a charging party will do better overall with an attorney, even taking into consideration the attorney's fees portion of the recovery.

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 Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

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

Marilynn Mika Spencer
San Diego *** 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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