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#1
What is the name of your state? CA

I filed a denied employment due to disability claim with the DFEH August 9, 2017. It's against a school district. I have a nocturnal seizure disorder and had one at the school during break, my first daytime seizure in more than twenty years. Another employee witnessed it, the school nurse examined me, and the principal took me to my general doc, who is local. I resigned in December, after the insurance kicked in. The district/board/insurance company wouldn't let me out of coverage until open enrollment. My med retails for $1,300, and there was a huge deductible. It was a complex partial seizure - no convulsing, no loss of consciousness, just loss of awareness.

In their investigative report the district claims I did not resign, but was terminated due to job performance. District claims I do not have a disability, and therefore did not have to provide the accommodations set forth by my neurologist - not to climb up the slides, or help students use scissors, because these aren't significant parts of the job. I'm a special education paraeducator (kind of like a hardcore instructional aide) There is a lot of slide climbing and helping with scissors.
The right to sue letter is dated 1/16/18.

I had given up on finding an attorney, although two said the case had merit.
They said that I had to do something fast, especially after hearing about what the district was claiming.

When I went to consultations before the withdrawing and getting the report there were two major points:
I was a probationary employee (lasts 6 months),
and I was not terminated, but resigned.
They do say the case has merit, they just don't have the time to take it on.

So, yesterday I got a notice from the EEOC that my case has been forwarded to the DOJ, which will be sending me a right to sue letter as well. The notice is dated 7/31/18, and states I have until October 2018 to take action.

I know that the statute of limitations will be over tomorrow for the initial "Denied Employment due to Disability" case filed in August of last year.

I'm posting because when I contact attorneys, they say missed that deadline.

Three questions:
Doesn't my right to sue letter give me until January 16, 2019? - I withdrew the case sometime in December.
What is the deadline for the DOJ?
Why was my case even forwarded to them?

Thanks for any input.
:)
 


Taxing Matters

Overtaxed Member
#2
Which agency sent you the right to sue letter that was dated January 16, 2018? Is that the only right to sue letter that you have received so far — or was the letter you got yesterday from EEOC a right to sue letter as well as a notice of forwarding your case to DOJ?

The DOJ has no deadline set in the law to act; it is the action from the EEOC that matters in terms of setting up the SOL for you to sue the employer for any claims of discrimination under federal law. The DFEH is the agency that matters for the state law claims. You might have claims under both federal and state law, and to preserve both you need to make sure you file your complaint(s) timely for each one. The statute of limitations to sue may well be different for the two claims.
 
#3
Thanks Taxing Matters, and it has been just that...taxing!! Which agency handles what, and when, and time limits are convoluted. I finally figured out that the EEOC hands claims against school districts to the DOJ. I did the filing on time, EEOC and DFEH kind of work together, in tandem in CA, but DFEH has to be first. So that right to sue ends 1/2019, and with the DOJ I have to get an actual lawsuit filed by Halloween of this year.

The EEOC notice states that I'll get the DOJ RTS ASAP. WTF? lol. Date of notice, not letter...gah!

I've been trying to find an attorney since August of last year. That's a whole other matter entirely. Hopefully, being (and feeling) more clear about the whole acronym thing and having a single folder of evidence to share or attach will make that happen. Heavy caseloads, or they ask for a huge retainer. One today wanted 30k up front. I'm wondering why no one has taken it on. Any insight? I'm truly perplexed.
 

Shadowbunny

Queen of the Not-Rights
#4
Thanks Taxing Matters, and it has been just that...taxing!! Which agency handles what, and when, and time limits are convoluted. I finally figured out that the EEOC hands claims against school districts to the DOJ. I did the filing on time, EEOC and DFEH kind of work together, in tandem in CA, but DFEH has to be first. So that right to sue ends 1/2019, and with the DOJ I have to get an actual lawsuit filed by Halloween of this year.

The EEOC notice states that I'll get the DOJ RTS ASAP. WTF? lol. Date of notice, not letter...gah!

I've been trying to find an attorney since August of last year. That's a whole other matter entirely. Hopefully, being (and feeling) more clear about the whole acronym thing and having a single folder of evidence to share or attach will make that happen. Heavy caseloads, or they ask for a huge retainer. One today wanted 30k up front. I'm wondering why no one has taken it on. Any insight? I'm truly perplexed.
That's usually an indication that they don't feel you have a good case.
 
#6
That's usually an indication that they don't feel you have a good case.
Here's what happened:

- I have nocturnal a seizure disorder, and had a seizure at an elementary school in October, 2016
- I haven't had a daytime seizure in more than 20 years. Nocturnal activity well controlled by med.
- Staff member witnessed it, district nurse examined me, school principal took me to general doctor at clinic
Receptionist drove me home, principal followed to take me to doc.
- I learned I couldn't afford my seizure medication, due to deductible of district issued health plan
- I tried to address board, superseded by superintendent of HR, didn't address board
- I resigned December 2016 to drop coverage
- I substituted for the district from January - June 2017

- In July 2017, district removed my online application when the position reopened, I addressed board
Director of Special Services said "be sure to get your application in on Edjoin" last day of summer school
- In August 2017, I filed a Disability Discrimination case with DFEH - Denied Employment due to disability claim
- After district was investigated, I withdrew it to pursue legal action - outright lies throughout

DFEH time limit ends 1/2018
DOJ time limit ends this Ocober

The district is claiming the following:

- I did not resign, but was terminated due to bad job performance/I was probationary
- I do not have a disability, and did not need to provide accommodations set forth by my neurologist

I have copies of the following:

- DFHE RTS letter, EEOC notice re: DOJ
- copy of my initial claim
- copy of district's investigative report
- copy of my good performance review
- record of doctor appt the day of seizure
- copy of appointment notes from Stanford Epilepsy Center

(and as of today, hard copy and PDF format of the above)

I honestly don't understand why an attorney wouldn't see this as a strong case. ?? Most just say their caseload is too full, too busy. This district is nearing litigation on another case, also personnel related. I would think they wouldn't want to deal with this anymore.
 
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quincy

Senior Member
#7
Gillbott, because this is a public forum and you are involved in a legal action, it is best for you to remove any identifying information from your post (e.g., school name). This is for your protection.
 
#9
I honestly don't understand why an attorney wouldn't see this as a strong case. ?? Most just say their caseload is too full, too busy.
Well, in order to prevail on a federal claim of illegal discrimination based on disability, you have to prove that you had a disability as defined by the Americans with Disabilities Act (ADA) and that the employer either discriminated against you because of that disability or that you were denied reasonable accommodation of the disability after having requested it.

The definition of disability is pretty broad and given what you have said I'll assume you do have a disability as defined by the Act. But the company says you don’t. Did the company explain what its reasoning was for that position? Did the company ever ask for any documentation for the disability?

Your post implies that you asked for reasonable accommodation of the disability, but it's important to nail that down. Did you make a specific request for accommodation before whatever performance failures the company said you had?

When was that last review what you said was good? Was it before or after the seizure event? Did you work change at all after the event? Did the company ever express to you that performance was a problem before the alleged firing? And how is it that the company says you were fired but you say you quit? Did you quit and give, say, two weeks notice and the company fired you in that two week time period? Or is it something else that leads to this differing view of events? Why did you quit?

Assuming that you can prove the company illegally discriminated against you, there then comes the issue of what damages you have. You mentioned insurance but I'm not clear what the insurance issue is. You say you quit, which ordinarily is not helpful to you because it makes it a lot harder to set up a claim for lost future wages when you were the one who ended the employment — the employer could say that had you not quit you'd still be working there and thus not lost any wages. Did you find a new job right away? If so, does that job pay as well as the old one? If you can't point to significant damages from the discrimination you won't win much, and that would be a problem. These lawsuits often take a lot of time to litigate and have a lot of expenses. Lawyers are not going to be keen to take a case on a contingent fee agreement (where the fee is a portion of what the lawyer collects for you) if the damages are not going to be large enough to get the lawyer a fee that justifies the time that would have to go into it. So what are the damages in this case?

There will be similar issues in the state law claim, too.

Note that the time to sue for the federal claim is 90 days after you get the right to sue letter from the EEOC. You said that you got a letter dated 7/31/18 from EEOC giving you until October to act. 90 days would indeed put you into October, so it sounds like that letter was a right to sue letter. The right to sue letter has to come from EEOC, not DOJ. If that's right then your time is ticking on getting a complaint filed for the federal claim. California law gives you one year from the DFEH right to sue letter to file a lawsuit for the state claim. That means your SOL for the state claim will be January 15, 2019 (not January 2018 as you previously stated). You may file both the state and federal claims together in one lawsuit (and generally should do that) but that means you need to get that complaint filed by this October to pursue both.
 

HRZ

Senior Member
#10
Layman's view ...be hyper positive to file timely case

It is entirely possible that attorney fee recovery is a bigger issue than your $ claim ...and in some cases the school will fight or settle depending on what their liability insurance carrier if there is one suggests .

Attorneys rarely turn down money maker cases .they think they can win..so take that as a serious hint about winning odds

You may need to invest some serious up front money to pay talented people to play your poker hand .

I have seen school districts pay off 6 digest for darn weak in my opinion cases and fight tooth and nail over strong cases against them...and win.

My gut reaction is that unless this is tenured position or long term rights protected by union contract or equivalent it has limited economic value ...that doesn't mean a very strong small case is not worth the attorney fees .

Do you have $50,000 to invest in the strength of your convictions?
 
#11
I am in special education and work with students on the mild-moderate side of the autism spectrum as well as mild to moderate learning disabilities. Mostly verbal, able to sit still with gentle prompting, able to do basic skills, some needing single step instruction, hand over hand instruction, etc, mostly toilet trained, able to "converse" but simply interact in a way which will impede their social/academic growth - anxieties, personal space and eye-contact rules, maybe outbursts of anger, but easily containable. Also students who have severe behavioral/emotional challenges, but with some de-escalation and conversation can calm down.

The school I was at has five sped classrooms, one a Language and Behavior class, one a medically fragile class, one 1-3rd grade academic, another 3-5th grade academic and a transitional/kindergarten class, all mobile and many verbal. The academic classrooms had about 10 staff members dispersed throughout. I guess at that time (student to adult ratio, etc) there were about 22 or so paraprofessionals onsite.

August - district places me into a K-3 classroom (four adults, seven students) where only one is toilet trained, one is verbal, students who run away, kick me, tip their desks in frustration, spit on me, wipe excrement on me. One student used to lie on the concrete during recess and stim (relax himself) by opening and shutting classroom doors. I had no training, was overwhelmed and didn't feel I was doing well. I was so relieved to have a well paying job that I just took it as a challenge. But I wasn't doing well. No worse than any of the many staff who have been transferred in and out of that room - about 14 since I've left job. I'm still friends with the teacher outside of school.

October - have my partial complex seizure, staff takes me to doctor, etc. Principal sat with me during the whole appointment. At this time I'm still just thinking "weird...to have a seizure during the day...it's been like 20 years." Later that week I have the HR appt where my disability is discussed. I tell him that I've done this work for almost a decade, raised three daughters, volunteered in their rooms, drove on fieldtrips and etc. That I disclose epilepsy to teachers I am placed with, and staff I work with, but only that I can get vertigo from meds.

Early November - I go to see my regular neurologist of 12 years and she fills out the packet checking "yes" next to every point at which I could seize. which is any time, as seizures are only controlled by meds, not cured. Her accommodation is that I cannot use scissors or climb high on the slide. Sometime near, not sure of day, I try to address board about getting out of insurance. The HR guy supersedes me and I tell him why I need out and he says he'll see what he can do.

Mid November - The curriculum specialist and principal give me a written job performance. I get overwhelmed, I can't use the walkie talkie correctly, but that I am courteous, on time, good attendance, can use office equipment, cooperative, etc. They decide to place me into the medically fragile classroom. Wheelchair bound, need spoon feeding, stomach tubes, toileting, etc. Many are also violent.

Late November - Learn about retail price of meds when I get refill, and call the HR guy and say I need out, now. Talk to insurance lady, etc. I need a Qualifying Event. Have a baby, marriage, other stuff, don't remember. I am buying pills in two day incriments. Pharma company will not provide, but I can get a free generic version. I decide to stay on retail price meds til winter break (early December) starts re safety, and acclimating to formulation. I take it the friday before and have vertigo so badly that I have to lie down for two hours.

In the interim, there has been stream (now erased) with me asking HR "can we create a qualifying event where I resign and you can just repost the job and give me an internal rehire? Districts do that all the time. I might not be in the right classroom, but you know that I'm committed, etc. I do have copies of the emails with the district insurance gal, and she's suggesting stuff like that.

It gets so long and convoluted that I could go on but wont. Suffice it to say that the HR guy called me four days before xmas "I release you from your position!!" I said yes over phone, I cannot tolerate generic meds. He emails me the unemployment papes, but no official "termination" documentation. I recant decision within eight hours and he replies that the paperwork has already been filed. I go ahead and apply for a sub position, assuming when mine reopens (they do need someone) I will at least have the ability to apply, and share that I'd be best suited for one of the nine academic classroom para jobs. This district switches us around like playing chess. No basis on experience or skill set. Ever.

Sub coordinator texts me like three weeks into second semester and asks if I'm cleared to sub. I say no, haven't even viewed my online app. She said let me take care of it...I'm set to sub the next day, in first voilent classroom.

After my seizure and good review (I forgot this part) the principal came into that classroom and asked the teacher for specific issues I'm having at job. In their report to DFEH they have notes taken by the principal about instances when I couldn't work with the difficult kids, mistakes, etc.

Anyway I sub a lot in the academic classrooms, do well, get letters of rec from those teachers and attach to my July application which was removed and never viewed. On the last day of summer school, the program director even reminded me to get my app in. I told her that I want to update letters and she says "no worries, we already have you in and want you back"

I addressed the board re med coverage sometime in early december, if I remember correctly. I also addressed the board 7 or 8 times August through December 2017. They have two meetings a month.

This school site alone has about nine academic positions, and I don't know how many there are district wide. I do know that one woman I was subbing for A LOT (who was also a sub, not permanent) with a 1:1 sixth grader was hired permanent spring 2017. The case manager wrote an angry email to the director, asking why someone working with such an intense kid, with so many absences got hired when I was so good with that same kid? Turns out that the district terminated her due to absences and she was placed in one of the academic rooms! She said that afterward they wanted to clarify that it was absences and not her migraines, and wanted to know how many absences were due to migraines.

So their "review/report" that I have a copy of does not mention that I subbed, mentions the five onsite classrooms but only cites my work while permanent working in them. Cites job performance re those students. Which are hard for anyone to work with. My second sub day was in the medically fragile classroom. They had a new kid with serious stomach tube, needed an LVN. I'm standing next to her in cafeteria and say I really messed up, letting this job go...she says "yeah, that's the only reason I have a job"

Like I said, they put any para anyplace as long as the numbers line up re student to staff ratio. In july, I applied for one of four positions. My application was removed. It's too convoluted to even wrap my head around. But I do know that they were aware I was a strong candidate for an academic room.

I guess an attorney looks at this and thinks "disability" is a stretch, because until one daytime seizure after 20 years I was doing fine in special ed. The district cites that too that my disability didn't impede me.

But they wouldn't let me out of med coverage. I'm sure I'm not the only person ever who said oops...I can't stay in this...so it's not my disability itself, but that I wouldn't be able to adequately control it because I couldn't afford name brand med. It's a big circle, but in a sense I'm not being offered a july position because of that. Is that even a feasible way to look at it?

They did move me into a "less suitable" room after seizure knowing that I was going to start generic. They didn't ever move me into a room where I wouldn't be endangering myself helping a violent kid with scissors, where kids could be "talked" off a slide. I don't know. I just emailed info to the law center for low income folks. It's mostly work injury and things to do with farming labor issues. I realized that my oldest daughter was in a class with the director's son. Someone will take it on...

Gah. I really needed to type this all out apparently. I appreciate the opportunity -- like law-therapy. Have a wonderful day everyone!

(oh this too: I did have an attorney who helped out a lot in July, sent demand letter etc. District refused mediation with DFHE, when attorney requested my personnel file, their good review wasn't included. I emailed the guy (i still had hard copy) that I needed it, like three weeks later, he sends me an attachment of it, unsigned. "Just so you know, this isn't official because it isn't signed." I emailed back that it wasn't true. I got a signed one about two weeks after that. Also they did not include my neurologist's paperwork, where can she have a seizure during ( )? was checked "yes." When I texted that attorney that the DOJ was getting RTS letter to me he said "bring me what you have", and he's looking around and asking. He has also said "it's not that you don't have a case, it's just not the kind our office takes on."

I wish I had the money for a constructive dismissal case, I think that was it really. Let's get this stressed out woman into placements she can't handle, let's not let her have her good med - she's outspoken and the kids and academic teachers love her. This is making the text-crazy stand there for a supplemental paycheck and talk about their toddlers staff, and our district program look bad!!
 
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#12
^^^^ sorry about that...I finally had a place to just angrily type all of that...

I do know that another substitute paraprofessional I subbed for a lot as a 1:1 (at least 4 or 5 times) was made permanent in spring 2017. She actually lost the job due to absences -- I'm in text contact with her.
This is significant for a Prima Facie case? any advice?

(and happy Saturday!)
 

HRZ

Senior Member
#13
I think it's entirely possible you were set up to fail because of your medical issues and quite possible you resigned unnecessarily w/o exploring options ....and you were passed over as to rehire but all this speculation is moot unless you file a timely appeal.
 
#14
The right to sue letters are timely. I have until January re State Laws, and to October for Federal. I did resign unnecessarily I suppose, but the generic version of my med was sketchy. Epilepsy meds are very very specific, especially when you find one that works that has tolerable side effects. My neurologist said she couldn't supply it for eight months, I was pretty nervous about switching, especially having my first daytime seizure on my name brand version in more than 20 years. The pharmaceutical company doesn't supply it if you're employed.

I was set up to fail. They put me in two classrooms in which I had NO experience. The thing is, eleven paraprofessionals have filtered in and out of the first one in two years. I certainly wasn't the only one who was overwhelmed. I'm looking forward and remaining positive. I may just sit in on a board meeting and not speak during open session. Just sit there and shrug.
I've emailed a lot of lawyers, and I'm going to see if the para who got a position (likely mine) that spring will supply a declaration letter. She's not with the district anymore, so she'd got nothing to lose.
 

HRZ

Senior Member
#15
I've taught in at least one such sp ed classroom ..its super tough ..and aids get minimal training for tough conditions ...but all your saga is moot unless you file a timely appeal and zero in on your claim of discrimination related to a disability.

Personally I think you made some bad decisipns and failed to exercise your rights
 
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