San Diego, CA asked in Employment Law for California

Q: I have a case and I forgot to file the FEHA, So what is going to happen to my case and the case I filed 3 years ago.

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2 Lawyer Answers
Neil Pedersen
Neil Pedersen
Answered
  • Westminster, CA
  • Licensed in California

A: If you failed to exhaust your administrative remedies by not filing an administrative complaint with the Department of Fair Employment and Housing within one year of the event about which you wish to complain, and that one year has passed, you have lost your ability to file a lawsuit against your employer for violation of the Fair Employment and Housing Act. If you filed a complaint in court already and the other side raises your failure to exhaust administrative remedies as a defense to your claim, the court will end your case, either by a motion for summary judgment or at trial.

It would be wise for you to immediately seek out advice of an attorney to see if there is any way to rescue your matter. For instance, if there was a termination that could be characterized as a wrongful termination in violation of public policy it should be explored whether you can amend your complaint and allege wrongful termination based on the same nucleus of facts and law.

Good luck to you.

Maurice Mandel II
Maurice Mandel II
Answered
  • Newport Beach, CA
  • Licensed in California

A: This really is a post where the best answer is "not enough information." The answer depends on what the claim was in your lawsuit, based on what happened between you and your employer. If the discrimination claim is based on your claim that you were WRONGFULLY FIRED, then all may not be lost. The Courts have decided that you have the right to bring a claim based on "WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY" whether you exhaust the remedies of the FEHA or not. BUT you do not get to claim benefits provided by the FEHA, such as your attorney's fees. You can recover the same damages- lost wages, lost benefits, emotional distress and potentially punitive damages, but not remedies provided by the statute, such as injunctive relief or attorney's fees. Yes, you need to consult with a local attorney about your case, send him copies of all the pleadings in this case. File a late claim with the DFEH, in case there was some kind of equitable tolling.

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