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In California, can I be given a write up during an internal investigation and after I informed job I am filing a claim w/ EEOC?

Chula Vista, CA |

On 04/2 in an aggressive fashion I was given a writeup. I have been keeping a log of events including: jokes, slurs, statements and other incidents awaiting to be discriminated against due to prior incidents in the office. I made a complaint to an outsourced HR dept on 4/02. I sent an email on 04/02 and 04/03 to my Employer and HR that I was looking to file a clam against my employer with a State Agency. On 05/17, during a internal ongoing investigation regarding my complaint I was presented a Final Write up. Phase #2 following the information obtained since my first meeting with "ANYONE" since my complaint to HR was made. I requested to review my personal file on 5/17 and was granted to on 05/30. Internal investigation came back in favor of my employer on 5/21 I was fired on 05/24

Attorney Answers 3


  1. it is unlawful for an employer to terminate an employee BECAUSE that employee has reported unlawful discrimination or harassment, or BECAUSE the employee stated an intent to report the unlawful discrimination or harassment to a government entity responsible for administration of the protective statutes. If you can prove that (1) you either suffered or reasonably believed you were suffering from unlawful discrimination(not all discrimination is unlawful), (2) that you complained about that unlawful discrimination or your threatened to so complain, and (3) you were fired as a result of your complaint(s), then you would have a claim.

    It does not matter if the complaint was found to be in your favor or the employer's favor so long as you made the complaint with a good faith belief that it was true.

    Your posted question suggests that you think that since you made the complaint you could not be written up or fired. Not true. The reporting does not insulate you from discipline or termination. If the employer has a legitimate reason for your termination unrelated to the claimed retaliation, and you cannot prove that legitimate reason is not a pretext for unlawful retaliation, you cannot receive damages for the alleged wrongful conduct.

    As noted, not all discrimination is actionable. In fact, most forms of discrimination are perfectly legal. Your best move right now is to locate and consult with an experienced employment law attorney to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    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.


  2. It is common for employees to believe that they can make themselves "bullet-proof" with a "pre-emptive" complaint that leaves the employer with no good legal options. But that strategy is rarely successful.

    You need a good attorney. Your former employer will have a good attorney. The evidence will show what it shows and the legal chips will fall where they fall. At this point, courts have been hearing cases of unlawful discrimination for approx 50 years. There is now a vast body of law that prescribes in detail the analytic process for evaluating claims and evidence re unlawful discrimination. The law is fully equipped to sort through the events between you and your former employer and make an appropriate and definitive determination and resolution of who did what, when, and why.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.


  3. It is always better to complain about illegal practices (whether it's to your employer or a government agency) in the workplace prior to being written up. The problem here is it looks as if you are complaining about illegal practices to try to save your position. However, if you have been harassed based on race, age, national origin... by managers or supervisors you may have a harassment case even though the wrongful termination case may have some potential problems. If you feel you have been harassed or discriminated against you should file a complaint with the Department of Fair Employment and Housing or the EEOC.

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