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How to build a discrimination case? I would appreciate tips from labor attorneys as I am trying to asses if I have a case.

San Jose, CA |

I would like to know what I need to look for as evidences to build a strong discrimination case as the reason for employment termination.

At my previous job, we do quarterly reviews and bonuses. I have never received a bad review and always got my full bonus. I was suddenly put on a 4-week long PIP for and I was dismissed 2 weeks into the PIP process (mgr complained I took a sick day). I believe the performance reasons are bogus, and this is happening because I took a FLMA and a bereavement leave during prior months. The culture is 80h work week and in my case 24x7 on call w/o any compensation as I am an exempt employee. My time off was not welcome due to that culture.

To my knowledge, the company (given the low # of employees) got served many discrimination lawsuits based on age & wage

Thank you all for your kind replies thus far. To be accurate, I misspoke and I am not trying to assess if I have a case. I would defer that task to an attorney. I would like to find an attorney to discuss my case and will be placing calls. But before I do that, I would like to know what info I need to gather to have a productive conversation w/ attorneys. I am sure I will asked many questions, but just wanted to a have a feel of what attorneys look for to make up their mind whether a case strong or weak. At this point, I am for tips so that I can accurately present my case to attorneys.

Attorney Answers 3


Every case is based on the specific facts and the particular law(s) involved. Your situation needs an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.

Answering "how to build a discrimination case" in any meaningful way would require a response that is far too lengthy to type out. Instead:

Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA):

Please see my guide to at-will employment in California which should help you understand employment rights:

Please look at my guide to unlawful discrimination: which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

You have an excellent alternative to following general advice from attorneys \ who do not know your case. You can and should consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. You are fortunate to live in a state with many excellent plaintiffs employment attorneys.

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.

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

*** 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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It is unlawful for an employer to fire or otherwise retaliate against an employee for taking FMLA leave. You may have a good case and feel free to contact me to discuss. If the company has a pattern of unlawful discrimination/retaliation, etc., it could lead to punitive damages. As far as how to "build" a discrimination case, the facts need to be assessed and applied to the law to determine if you have a viable case.

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Ms. Spencer has given you an excellent response. Seek an attorney, and I happen to know she's excellent. You'd be well-advised to give her a call.

When I evaluate a case, I explain to potential clients that there are two issues in every lawsuit: liability and damages. Liability asks, "Can we prove that the employer did something illegal?" In your case, you are indicating that you think you were fired for taking protected FMLA leave. If true, this would be illegal. An attorney like Ms. Spencer can help you determine if you can prove it.

Damages asks, "What is the case worth?" Forget everything you see on TV and hear in the media. People don't get a million dollars for stubbing their toe. The law gives you back what you've lost. In your case, you've lost a job for however long you've been unemployed, plus however long a jury might believe it will take you to find a another, comparable job. I encourage people considering litigation, except in rare cases, to assume that's all they'll get. The law also provides for emotional distress damages, but these are tough to prove and hard to sell a jury on without real, impactful, lasting damage to your psychological well-being. A jury can also award punitive damages to punish and deter, but those are even more rare, so I usually don't even take them into account when thumbnailing a case's value, again except in unusual instances.

Whatever these calculations come up with, you have to multiply that by the chances of success (as determined by your lawyer) to come up with the actual case value. You may be disappointed by what you find, but it's important to enter litigation with a realistic understanding of what you can and can't accomplish.

Ultimately, I encourage people considering litigation to look at it as a business matter. Do you want to invest time and money pursuing this, possibly getting nothing, knowing what the potential upside is as evaluated by your attorney?

Good luck with your legal matter,
Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Thank you Craig for clearly explaining it. Damages is clearly important since no attorney would take on the case on a contingency basis unless there is enough to compensate for the time spent. Liability is the part is unclear to me and what attorneys usually look for to prove the case. Most employers wont admit discrimination and it is rare they would put something in writing that is incriminating them. What I have comes from my observations about the irregularities in the company processes and I wonder how much can be used to investigate.

Craig Trent Byrnes

Craig Trent Byrnes


On re-reading your post, I notice that you said your manager complained that you took a sick day 2 weeks into your PIP. Depending on the reason for the sick day, this could provide strong evidence of retaliation on the basis of taking FMLA (or, better yet, California's version of it called CFRA) leave, or perhaps even a failure to accommodate a disability. I'm concerned that you pointed out that your company has a low number of employees. FMLA/CFRA apply only to companies of 50 employees or more. If your company doesn't have that many, it doesn't mean you're out of luck. Other laws may still apply, and you'll want to get these issues reviews. Be aware that there are time limits, called statutes of limitations, which apply, and if you wait past those time limits to file a lawsuit, your right to do so will be lost forever. Good luck with your legal matter. Sincerely, Craig T. Byrnes



The company has few hundreds employees. Terminations have always looked random and at will of the managers. Managers are not trained as HR offers no support. HR themselves are novices thus the numerous lawsuits against them as they don't seem to know the proper way of conducting business. During my PIP, I took a day off and during my exit interview the HR manager verbally communicated to me my boss emailed her on that day saying "see, i told you, he is not trying to work harder". I am already working 60-80h/week and get called at home for support 24x7. That should already qualify as working hard by most standards. How much time do we have to sue? I didn't act on this for a while because I thought little loss of wage isn't worth for attorneys to take the case but I always feel wrong for letting companies getting away w/ such practice. But this definitely affecting my life. My wife now is afraid of having another child because I could fired for taking a paternity leave. This is I would said my biggest loss. Thank you for your guidance and encouragement

Craig Trent Byrnes

Craig Trent Byrnes


Generally speaking, you have one year from the date of termination to file a lawsuit (or to obtain a right-to-sue letter, if applicable). I'm happy to offer what limited, general help I can on an internet message board. Please be aware, of course, that I'm not representing you, I'm not your attorney, and I'm doing nothing to protect your rights at this time. Making sure you follow all deadlines is your responsibility, and I am doing nothing at all to make sure that happens. Good luck with your legal matter. Sincerely, Craig T. Byrnes

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