Employer refuses mediation - what's next?

[kismetique]

What is the name of your state?What is the name of your state? Texas

I received a letter from EEOC today that my x-employer is refusing to enter into mediation on my age / gender discrimination charge. I'm curious as to what comes next - I know EEOC will investigate, but I'm wondering what that consists of.

My supervisor is now Over-40 (he was 38 and I was 41 when I was hired), but retaliated against me for a FLSA complaint I filed, and forced me to resign. About 2 hours after my FLSA hearing, he asked me if I could start working a different schedule, which he already knew I couldn't and we had earlier agreed that I wouldn't ever be assigned that particular schedule. The very next day after the FLSA hearing, he assigned that exact schedule to me knowing I would be forced to quit.

Besides the supervisor, I was the only other Over-40 employee. I was replaced with an Under-40 employee and she was not required to work the same schedule under the same stipulations (paid much less than male employees doing exact same job) as he tried to force on me. He manages only 2 employees - both are Under-40 now. He has college interns as well - all Under-40. There really is no employment history to look at - they have been open for 3 years and I was the first and only secretary - until now, that is!

Does it look bad or is it of no consequence for the supervisor to be Over-40, but get rid of his Over-40 employee and hire all Under-40 employees? He has a confidence problem and was not comfortable disciplining me because I was older than he. In order to have control, he MUST have younger employees than he.

I'm guessing that EEOC will want a statement of position from the x-employer - and I guess they will either lie that she is not under 40 or that there is some really good reason for the way things are - good business sense is what they have alluded to so far. Since I am no longer employed there, how do I gather information in order to respond? Or do I? Does the EEOC do a thorough investigation to find the hard facts? Is it a he said / she said, back and forth, type of investigation? Or is a one time 'give any and all info' where the x-employer gets to shoot me down without me being able to respond?

Thank you for any insight into this process!

 

[Beth3]

The EEOC will share a copy of your complaint with the employer (actually, they've done so already) and ask for them to provide a written response. The EEOC will speak with you and any one else whose name you've provided to them as having direct information in support of your claim.

Then you'll likely wait 12 - 18 months for the EEOC to issue an opinion, which will be whether or not there is probable cause to believe prohibited discrimination to sue. If the EEOC feels there is, there is a slight chance (at best) that they will sue on your behalf. If they don't do that, the EEOC will issue you a "right to sue" letter along with their opinion statement (regardless of whether or not they found probable cause.) At that point, you'll have 30 days to file a civil suit against the employer.

In my personal opinion, I think you're going to have a hard time substantiating a gender and age discrimination complaint. You were 41 when you were hired. If they'd had a problem with your age and/or gender, they never would have hired you. If the schedule change was retaliation for making the FLSA complaint, then the age and gender of the person they hired to replace you is irrelevant.

If you have a complaint to bring, it appears it would be for retaliation for making a FLSA complaint and that is the province of the federal Deparment of Labor, not the EEOC.

 

[cbg]

Beth - I thought after a right-to-sue letter was issued, you had 90 days to file your suit?

 

[Beth3]

Oops, you are exactly right. I was thinking 90 and typed 30 for some inexplicable reason. Thanks for catching that.

 

[kismetique]

Beth - thank you for your response.

A different manager actually hired me, she was my manager(off-site) for a year, then my manager was changed to the guy(on-site) who retaliated.

I am now at a loss as to why EEOC told me to file on these issues. EEOC told me that my replacement should treated the same as I was treated. They said since my replacement was Under-40 and not required to work the same schedule / under the same stipulations, to file on those issues. I wonder if I misunderstood or didn't make myself clear when communicating with them.

I'm just curious how the EEOC goes about flushing out the truth - I mean, I've been in recent meetings where this employer just makes stuff up to justify what happened. For instance, my schedule was changed but not the hours I would work, which was essential for operations. During a meeting they were not sure why my manager didn't change my hours as well. Now they are saying the schedule change just magically included the hours change as well, only no one told ME that at the time! Maybe all this is irrelevant, as you say.

So if they retaliate on FLSA issues, that gives them an open door to then discriminate because it is irrelevant at that point? Interesting.

I do have an on-going FLSA issue; however, I'm having problems with my lawyer doing anything - or even communicating with me! This is all very frustrating to say the least.

Thanks again.

 

[Beth3]

So if they retaliate on FLSA issues, that gives them an open door to then discriminate because it is irrelevant at that point? Interesting. That's not what I'm saying.

I'm saying they didn't change your schedule because of your age or gender; they (presumably) did so in retaliation for making the FLSA complaint. Had they forced you to quit IN ORDER to hire someone younger and of a different gender, that would be prohibited discrimination. That wasn't the case here. That's why the age and gender of the person hired to replace you appears to be irrelevant because it has nothing to with the circumstances under which you left.

I don't know why the EEOC told you to file this as a claim. Perhaps they have some facts about your situation you haven't shared here; perhaps it's simply because those are the employment laws they deal in and nothing else occurs to them.

If you're not happy with your lawyer, then get a second opinion and see if you wish to make a change.

 

[kismetique]

Beth - thank you so much for clarifying that! I was about to throw up my hands over this whole deal.

I apologize - because of the two issues FLSA / EEOC I get confused at which issues are relevant to each. I should have stated this in my original post - but yes, I do believe I was forced to quit, specifically so he could hire someone younger. In fact, I filed the discrimination BEFORE I knew who he had hired and stated that I was positive he would hire someone younger - which he did. He was mad that I filed the FLSA grievance, but I believe it was the decisive action that made him realize he HAD to get someone younger into that position that he could more comfortably manage.

It was my contention that he would hire a younger, less experienced and less mature individual who would not question him on matters or site company policy against his actions. So...if I'm understanding you correctly - the fact that she is not made to work the same schedule they were trying to make me work is the part that is irrelevant. Is this correct?

If that is the case - then I need to focus on proving that he forced my resignation solely due to my age and his desire to hire a younger, more easily controlled employee?

Another question please - the only other employee quit at the same time I did and while he gave me his email address and cell phone number, I'm not sure they are good anymore (I can't get any responses). He would be relevant in stating that the manager told him several times that he was going to reprimand me for various small issues; which he never did, I believe because he didn't have the management skills necessary to deal with an older, more confident employee than himself. Do I need to do the leg work to see if I can contact this other employee?

Also, my husband was subjected to hours of this manager ranting and raving about his lack of control over me and even begging my husband to demand that I 'behave' while at work!!! Can/Should I use this, or will my husband be viewed as tainted and unreliable?

EEOC told me to file on gender because the schedule change would have forced me, as a female, to work the same exact job that only males had ever worked, making a much higher wage than I. Additionally, there was an agreement that I would not be required to ever work that schedule due to that very reason. This may very well be irrelevant as well.

Again, thank you for your time and efforts - you have helped me understand this much better! And yes, I'm working on the lawyer situation. I signed a contract which stated that the lawyer placed a lien against any settlement. If I replace him (fire him), does the lien stay in affect?

 

[Beth3]

Do I need to do the leg work to see if I can contact this other employee? If he can provide evidence to support your claim, yes. It will be considerably cheaper for you if you can locate him rather than your attorney hiring a private investigator to do so.

Also, my husband was subjected to hours of this manager ranting and raving about his lack of control over me and even begging my husband to demand that I 'behave' while at work!!! Can/Should I use this, or will my husband be viewed as tainted and unreliable? That's really something you need to discuss with your attorney. Responding to that question can't be done outside the larger framework of the legal strategy your counsel is developing.

I signed a contract which stated that the lawyer placed a lien against any settlement. If I replace him (fire him), does the lien stay in affect? Obviously I'm not in a position to know specifically what that lien states but I would imagine so. Even if you replace the attorney, he's still entitled to be paid for the time he put in on your claim so far. If you decide to change attorneys, you will need to show that to your new attorney.