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The EEOC closed my case without investigating.

Los Angeles, CA |

The EEOC closed my case without investigating. The EEOC never interviewed me or the employer. The EEOC never interviewed a single one of my 15 witnesses. The EEOC never called me discuss the case. They just closed my case, and lied and said that they did investigate. However, they never did. They also never offered mediation.

Can somebody please cite me a federal law or opinion that says the EEOC must at least offer mediation? And can somebody please cite me a federal law or opinion that says the EEOC must investigate?

I showed the EEOC C.F.R. 1601.15 that says that an investigation shall be made by the EEOC, but the EEOC said that they don't have to investigate even after I showed them C.F.R 1601.15.

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Attorney answers 5

Posted

The EEOC does not offer mediation, you have to request it. Then the EEOC will ask the employer if they will agree to attend mediation. If the employer agrees, the EEOC will schedule the mediation and pay the mediator. It is a great opportunity to get an early free mediation. You will have better luck at settlement if you hire an attorney to prepare your mediation brief and attend the mediation with you.

Barron Law Corporation Sacramento & San Francisco. 916-486-1712 or 800-529-5908. Email Deborah at: deborah.barron@lawbarron.com No attorney client relationship is created by this answer.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Respectfully, this is incorrect information. Please see my separate response to your question.

Asker

Posted

Respectfully, it is not incorrect information. It is very good information and helpful to me. It doesn't hurt to ask for mediation in writing. She didn't say it was a law that EEOC must offer mediation. She said I have to ask for mediation, then the EEOC will act as a middle person and try to put a mediation meeting together. It doesn't hurt to ask.

Neil Pedersen

Neil Pedersen

Posted

Hi Asker, Ms. Spencer is right. The EEOC will only mediate certain matters, and because yours has been closed, your request will unfortunately fall on deaf ears. Your experience with the EEOC is not unusual. It is the agency of last resort in California. However, even though the DFEH may be a better alternative, your best approach in CA for cases of any substance is to hire an attorney and simply file the administrative complaint and seek a right to sue. You will almost always end up in a better place with that approach. Good luck to you.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Asker, it is indeed incorrect. One does not "have to request" mediation. The EEOC offers mediation in specific types of cases, as I explained in my separate response. The EEOC will not act as a middle person to try to put the mediation together. It has its own staff mediators who are permanent employees of the EEOC.

Neil Pedersen

Neil Pedersen

Posted

Fine, you go ahead on your course of action and hopefully it does not hurt your case too much. The process you cite to will not be available to you. There is no attorney who participates on this board with more knowledge and experience in this area than Ms. Spencer, and to brush off her adamant advice is foolish. I wish you the best of luck.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Asker, I don't understand why you would come here to Avvo and ask questions, get answers and then argue with those answers. I do not understand how you can look at my separate response to your question and conclude I don't know what I am talking about. The link to the EEOC web site which you provided does not say the EEOC will mediate any case upon request. It says it will ask some parties if they will mediate. It certainly does not say what you believe it says: "In some cases, we will ask both you and the employer to take part in our mediation program." I don't know how you can twist "In some cases, we will ask . . ." into "We will mediate any case the parties want us to mediate." Several attorneys here have explained that the EEOC will not mediate upon request. One attorney said otherwise. You have chosen to agree with the attorney who said otherwise because that is what you want the result to be. I urge you to keep track of your 90 day deadline and file a lawsuit before that time expires. I wish you success.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

And I certainly mean no disrespect to Ms. Barron. I did not insult her; I merely disagreed with her. Attorneys spend their lives arguing that law -- that is what we do for a living. Ms. Barron has been practicing law for many years and I doubt she is so thin-skinned that she would interpret a disagreement as an insult.

Posted

Many employees are burdened by the incorrect assumption that the EEOC works for the employee. The EEOC is an independent government organization that answers to the government. The EEOC is overburdened by too much work. For every case the EEOC litigates, 99 cases have been rejected by the agency. I have had several clients tell me that the EEOC lost all their paperwork. One client said the EEOC lost her paperwork more than once.

You live in California, a place with state law protections (FEHA) that in many cases likely exceed the protection of federal laws. Unless you work for the feds, you have a right to proceed under state law. I am not familiar with whether there are administrative exhaustion requirements for state law cases because I don't practice law in california. However, I can tell you this. In states where there are many well qualified plaintiff-side employment lawyers, the role of the EEOC is not as important because the plaintiffs have a way to achieve justice without eeoc. If I were you, I would take advantage of one of the many plaintiff-side employment lawyers who offer free consultations to get advice. Don't get worked up about whether the eeoc is doing its job, remember, eeoc does not work for you. Instead, help yourself by getting a private lawyer to go over the facts of your case. Good luck.

Posted

I completely agree with Ms. Foster. She would probably be a fine attorney to contact. I write only to add that the EEOC was correct, and that you've misread the regulations. 29 CFR 1601.15 does not require the EEOC to investigate your charge. It says only that if a charge is filed, it is within the EEOC's authority to investigate. Look at 29 CFR 1601.18, and you will see that the EEOC has many options about how to handle a charge, including simply dismissing it. Also, Ms. Barron is correct: no law requires the EEOC to offer mediation.

This is why you need an attorney. Plaintiff's side employment attorneys are well-versed in reading these regulations, and, while it may sound impolitic, you are not. Call either Ms. Foster or Ms. Barron, and see if they'll offer you an appointment. If, after evaluating your case, both of them decide not to take it, you will have additional information from two well-versed attorneys.

Good luck to you.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

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.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Unfortunately, Ms. Foster is not a California attorney. I wish she were because she consistently offers excellent guidance and we could use her here in California!

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Woops! I didn't know where Dumont is, and I guess I just assumed it was in CA. Nice catch, Ms. Spencer!

Asker

Posted

I thought the word "Shall" means "will"?

Asker

Posted

C.F.R. 1601.15 says the EEOC "SHALL" investigate. Therefore, the EEOC MUST to investigate.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

I disagree with your interpretation. The regulation you're quoting says, "The investigation of a charge shall be made by the commission . . . . " In other words, *if there is an investigation,* the Commission shall do it. My interpretation is bolstered by the regulation I cited to you earlier: 29 C.F.R. 1601.18 provides that the EEOC can dismiss the charge without any investigation at all. This is why you need an attorney. If you read these regulations in isolation, or you just reject interpretations that you don't like, you will come up with the wrong answer. I'm not trying to engage in argument with you, and I have no interest in convincing you of my interpretation. I do, however, urge you to find an attorney in your area.

Posted

You don't need the EEOC to do anything other than issue you a right to sue letter -- on demand. But what you do need is a skilled and experienced employment attorney. There is no reason not to have expert legal assistance. Most employment attorneys will consult initially at no or low cost and if your case is sound, you may be offered representation on a contingent fee basis.

You can find great employment attorneys at www.cela.org

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an 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 individual consultation and execution of a written agreement for legal services.

Posted

This answer is primarily to explain the EEOC mediation process and correct any contrary information.

The EEOC absolutely does offers mediation; it even promotes mediation. However, it only does this for some cases. And the EEOC will not mediate any other cases. Requesting mediation will not affect EEOC policy on this.

The EEOC instituted Priority Case Handling Procedures (PCHP) by which cases are categorized as A , B or C cases. Cases designated with an A are the strongest. They are cases where discrimination appears likely. Other A cases are those that involve an issue the EEOC wants to deal with, or involve a lot of people or multiple charges against the same employer, or policy issues.

A1 cases are A cases that the EEOC identifies as appropriate for litigation.

A2 cases are A cases that are not appropriate for litigation, most often because the employer is a public agency and the EEOC is prohibited from litigating against a public agency.

C cases are those for which the EEOC does not have jurisdiction (power) over. C cases are those where the time limit to file is passed, the charging party provided self-defeating information, there is no employer-employee relationship, or do not involve an issue the EEOC deals with.

B cases are everything else and typically require further investigation.

B– (B minus) cases are B cases that look doubtful, but just might have something to them.

The only cases for which the EEOC will offer mediation are B cases. A cases are investigated. C cases are closed.

As Ms. Foster stated, the EEOC is terribly overworked. Its funding has been slashed dramatically at the same time its workload has skyrocketed due to the economic climate. It is very common for cases to languish in the investigation section for two years before much happens. It isn't that the EEOC does this intentionally. The fault is with Congress, which has not appropriated enough money for the EEOC to come anywhere close to doing its job.

You should take the good advice you have received here and consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. 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.

If you are having trouble finding an attorney for your case, there are several possibilities:

-- you are not looking in the right place for the right kind of attorney;
-- your case does not have as much value as you think; or
-- you are not presenting your case in a way that makes sense to the attorneys.

Employment attorneys want certain information right up front: the name of the defendant, the name of the employee; if the employee was fired (or denied reasonable accommodation, or laid off, or whatever the issue is, in five words or less); the date this happened; the reason the employer gave for whatever happened; how long the employee worked for the defendant; what job the employee did; how much the employee made; and any deadline.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

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

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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