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Fired while out on FMLA leave to bond with newborn. Co. admits wrongdoing. How to value a settlement?

Irvine, CA |

I was fired 12 days after giving birth - had not used all my FMLA time. co. goofed in calculating leave time or wanted to get rid of pregnant employees or make sure they don't have to give leave if pregnant again. Co. seems to rush pregnant employees to return to work without using all leave time. Have not found job for 1 year, though look every day. Severe emotional distress - see a psychologist 1 x per month plus meds for anxiety, etc. Was earning $100,000 per year plus benefits. Didn't offer me severance, but offered to everyone else. I see websites where attorneys claim to have gotten over 1 million dollars for similar cases. How? What range should I expect for a solid settlement. They want to settle. What amounts do you think the case is worth?

I filed a claim with DFEH. My question is how can an attorney get a 3 million dollar settlement, as one website claims if the pregnant employee who was wrongfully terminated only lost $30,000 in wages? In my case, the company has lots of money and has an insurance policy which will pay this settlement. They have been sued by other pregnant women, my salary was 3 times more than the $30,000 wage of the victim in the 3 million dollar case. I clearly have documented emotional distress with medication and psychologist visits. Does anyone think my case can be valued at over $300,000 - is that too small of an amount and how could anyone get 1 million or more?

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Attorney answers 4


The value of a case varies considerably based on probably 50 different things, including the facts of the illegal activity, the statutory and case law, the employer, the employer's attorney, the plaintiff's ability to withstand litigation (which does not mean the plaintiff will actually end up in litigation, just that the employer knows it is a possibility or even likely), the plaintiff's attorney, the financial loss, the emotional distress, the the geographic location, the assets of the company, the public image of the employer, the evidence (including witnesses and documents), the company's insurance, the court the case will end up in or is in, the jury pool, the judicial pool, the financial resources available to each side, the political climate, and many other factors.

There is no realistic way to value your case based on a short exchange on Avvo or in person. A realistic evaluation will take literally hours, days or weeks. Please, please do not try to do this by yourself. It is nearly always the case that a plaintiff ends up with a better resolution when using an attorney than when not using an attorney. "Better resolution" includes more money even considering the portion that goes to the attorney, terms of settlement, leaving the plaintiff in a better position for future employment, and far more.

There are some excellent plaintiffs employment attorneys in Irvine and near to Irvine, several of whom are frequent contributors to Avvo. You are not limited to attorneys in the geographic area, though. You can also find an attorney via 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. *** 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. ***


I have a very serious concern about three aspects of your post.

First, I see no indication that you filed any kind of administrative charge with either the EEOC or the DFEH. If you are now a year after your termination, you may have put yourself in a position where you have far less leverage, regardless of the company admissions. To have a claim for pregnancy discrimination under the Fair Employment and Housing Act, you have to file an administrative complaint with the DFEH within one year of the wrongful conduct. A failure to do so bars your ability to sue under that statute. The time limit under the federal laws are less. If you lost your ability to sue under the FEHA, you have lost your a tremendous amount of leverage. You are left with a claim of wrongful termination in violation of public policy, which does not carry with it some of the super remedies available under FEHA. You can still get lost past and future wages and emotional distress. If a full year has not passed, you need to race to the DFEH and file a claim.

Second, I am greatly concerned that you are going to attempt to settle this case without attorney assistance. As Ms. Spencer noted, the factors that go into the value of a settlement are many and complicated. One of the greatest factors is the amount of risk the employer believes it faces if it refuses to pay the amount demanded by the employee. If you look and feel like a settlement-only victim, you will be treated like a settlement-only victim. You will be offered the amount the company wants to offer you, and then it will make it a take it or leave it number, knowing based on your situation that you have to take it because you only want to settle. The better settlements are almost ALWAYS those where the gun is to the head of the defendant, and the defendant has risk. Your best chance of a larger settlement is to have an attorney retained who is ready, willing and able to litigate.

One final point, websites that claim settlements over 1 million dollars, along with news stories of monsterous verdicts, usually demonstrate that the attorney is very good at what he or she does. However, you should never then automatically conclude that your case can get the same kind of money as those cases. My million dollar cases (four of them) came after many years of litigation in each and all occurred either within 3 months of trial or during or after trial. The gun was at the defendant's head and it heard the hammer click. That kind of money was not available before the situation was right.

Do not expect anything close to that when you look and feel to the defendant like someone willing to take what they offer.

More importantly, do not expect to get what somebody else got unless you carefully compare the facts and circumstances of the other case to understand all of the dynamics involved. Each case truly is different, and must be assessed based on its unique facts, circumstances and dynamics.

Good luck to you.

Pedersen McQueen, APLC is an Irvine, California law firm assisting clients in all Southern California counties.

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.

Marilynn Mika Spencer

Marilynn Mika Spencer


Just to clarify one part of Mr. Pedersen's excellent response: there is a two year statute of limitation (time limit) to file a lawsuit under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) or to file an administrative claim with the U.S. Department of Labor. California has a law that is nearly identical to the FMLA, the California Family Rights Act, Government Code section 12945.2 (CFRA). The CFRA has a one year statute of limitation and an administrative claim must first be filed with the California Department of Fair Employment and Housing The time limit which is less under federal law than under California law, and to which Mr. Pedersen refers, is discrimination based on sex or pregnancy. This is protected by the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17 and administered by the EEOC. You have 300 days to file such a claim with the EEOC, at least in the state of California. In other states, one would have only 180 days. But the much better path is to file with the California Department of Fair Employment and Housing under California law, and you have one year for that.

Neil Pedersen

Neil Pedersen


So true regarding the FMLA. It is one of the few times a federal statute provides superior relief over the CA statute.

Marilynn Mika Spencer

Marilynn Mika Spencer


Yes. A thing of rare beauty.


I agree with Ms. Spencer and Mr. Pedersen's excellent responses. You are in the same city as Mr. Pedersen, and based on the answers I've seen him give on Avvo, I strongly encourage you to call him. Ms. Spencer is in San Diego, I think, but there's no one better than she is, and you'd do well to consult with her too.

As Ms. Spencer pointed out, no one can give you an accurate assessment of your case through the short exchanges we have on this website. The value of the case depends on so many factors, both objective and subjective, that I'd encourage you not to trust an attorney willing to give you an off-the-cuff evaluation.

Forget everything you read about in the newspapers, hear on TV, or read on websites. People don't get millions of dollars for stubbing their toe. I'm not saying that what happened to you was like stubbing your toe, but the point is that the law provides you compensation for what you've lost. Here, you've lost a $100k job for a year, plus however long a jury decides it would reasonably take you to find another one. You've also experienced emotional distress, which of course is difficult to evaluate in terms of dollars and cents.

Please give Mr. Pedersen a call, or Ms. Spencer even though she's a little further south than you are. Either one of them would be excellent attorneys to help you here. Don't go it alone.

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.

Neil Pedersen

Neil Pedersen


Thank you for the kind words.


Let me see if I can help you consider your options in a slightly different way.

1. What does the future hold for your job prospects? This answer may require a vocational expert to compare your skill set to available jobs in your market.

2. What does the future hold for your medical care?

3. What is your tolerance for the stress, anxiety, and personally invasive and adversarial litigation? Under the best of circumstances, lawsuits are no fun. A lawyer with a reputation may be able to settle your case before a lawsuit, but most insurance companies defending under Employment Practices Liability Insurance will not offer anywhere near full value of a claim before you file a lawsuit. If you want to settle without getting entangled in litigation that may take years to resolve, you may want to consider the value of money in hand and peace of mind. Your doctor and your family can help you with this decision.

4. Would you be able to open up your personal life, under oath, in testimony to strangers? Because your ex-employer will hire a psychologist or psychiatrist who will give you a battery of paper-and-pencil tests, interview you extensively, look for discrepancies in how you tell your story and conclude that you are either (i) a "malingerer" who is faking for money; (ii) a liar; or (iii) suffering from some pre-existing emotional disorder having nothing to do with your employment or stemming from your personal life. Nothing personal. That is what expert defense witnesses are paid to do.

5. Are you a well-spoken, attractive witness with no bankruptcies, criminal felonies, or stains on your employment history? Were you truthful on your application and resume? All this impacts your credibility as a witness.

6. Has the employer discriminated against other women who choose to have a baby? If so, can you get testimony from other women?

7. How strong is your lawyer, and does that lawyer have a track record of going to trial and winning?

8. Are you willing to wait to get paid? An employer who loses a big verdict will most certainly try to attack the judgment with post-trial motions and appeals. You might not see any money for years.

9. What else, besides money, is important to you? What, if anything, can you get from a negotiated settlement that you cannot get from a court judgment in your favor?

10. What is the employer's side of the story? Is their story credible?

11. Will the case be heard in L.A. Country or Orange County? State court or federal court? A lawyer will help determine the best venue for your case. That venue will impact the value of your case.

Bottom line: an experienced employment law attorney can gently guide you through these questions and help you formulate goals that are tailored to your needs. Find an experienced lawyer who makes you feel comfortable, responds to your emails and phone calls, and gives you peace of mind. Everything else will flow from that important decision.

Best regards,

David A. Mallen

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, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is 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.

Marilynn Mika Spencer

Marilynn Mika Spencer


Great response!

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