Speaker 1: 0:20

Hey, it's Mark and welcome back. Today's episode will be talking about filing successful complaints with the EEOC or the Equal Employment Opportunity Commission. If you ever wanted to know how to file a successful complaint with the EEOC and state agencies, listen in. I have literally filed hundreds, if not thousands, which I don't keep track of these complaints over my entire career. If you're doing just employment law like I do, this is all I do. I wanted to share my viewpoint with you to save you time and aggravation in dealing with this agency and to make your cases more successful. First and foremost, let's define what I mean by the phrase a successful case. A successful EEOC case is one in which the agency accepts your case and you attend a mediation session with a financial outcome via a settlement agreement with your employer. Please note the EEOC will never, never litigate your case for you, so dispense with that pipe dream in your head before you file. This is the problem with this agency. In my opinion, if your goal in filing a complaint is to get justice against your employer and have the EEOC actually represent you in your case, then you need to know the following truth you will never find any justice quote-unquote justice at this agency, even though this agency is charged with protecting employees in the workspace. The EOC is a highly bureaucratic agency and only accepts about 1% of cases filed with it, cases that the EOC themselves will actually litigate on your behalf or behalf of a class. They have limited resources and they will not legally represent you just because you file a complaint with them over their portal. This means you need to be your own advocate and hire an employment attorney, like myself, although these podcasts and the articles I write on my website are designed to facilitate your own self-advocacy, because that's what I'm all about. So, filing the EEOC complaint with the EEOC, you literally you can use their public portal and I'll give a link in the show notes, but it's the publicportaleocgov portal login, et cetera, and you can find it on the EOCgov website. It's free. It's open to the public, of course, because it's a public agency and the agency says you can submit something there electronically, like a complaint or an inquiry, and they'll interview et cetera. But you really can bypass all that by drafting affidavit and getting to the facts of what it is and submitting it to the agency and I'll get to the second.

Speaker 1: 3:08

But first and foremost, you have a time window to do this. You may not know that Under the Title VII of the 1964 Civil Rights Act and the American Disabilities Act and other federal statutes, you generally have 180 days of the last adverse issue that happened to you, such as a demotion or a termination. From that date you have 180 days to file a claim, or you lose, you waive the claim. But there's a catch. You also have up to 300 days and this is because the EEOC has a work-sharing agreement with almost every state agency. These state agencies are called fair employment practice agencies and because of this work-sharing agreement you have 300 days from the last adverse action to file a complaint or waive your claim. So under Title VII, file your complaint in a timely manner and remember your window of opportunity of 300 days is rolling forward each day, one day and you have a look-back period of 300 days. So all the adverse actions have to fall within the 300-day period. That's critical. Everything else that falls outside of that is basically background facts and the court won't address it. So there is one theory, an exception. It's called the continuing violation doctrine and it says that individual acts that occur outside the 300-day period, if linked together causally to all the events in the case can be seen as one continuous activity by an employer. This happens a lot.

Speaker 1: 4:40

You have to actually check a box on the Form 5. That's the actual official complaint form, the EOC. It's one page. You fill in the information about it, you put your name, you put the employer's name and you check this box. And don't forget to also check the two boxes at the top right-hand corner and it says the FEPA, the Fair Employment Practice Agency. Check both boxes. That means it's a dual filing. You've covered your ass for both state and federal. Very important, you don't miss that. These are stupid, nonsensical things that they put into this complaint, things that people miss it all the time. And then, most important, put your allegations in a little two-inch box at the bottom and you can supplement, of course, with a sworn affidavit and then notarize the complaint. So that's your Form 5 document you'll be submitting to the agency.

Speaker 1: 5:31

I'll get into the more lengthy part of submitting a complaint successfully, so you understand. But the basics are, in summary file within 180 days and 300 days generally 300 days and get it notarized, check the appropriate boxes, go on the portal and file it. But here's the other catch Go to your state agency and file your claim with them as well and tell them you're a first filed with the EOC type of case. Because you get to select which agency you want to have investigate the case. Because you get to select which agency you want to have investigate the case. If you're in California, you want the California federal state agency to investigate your case because California law is so liberal in terms of employee protections and the outcomes are so substantially more favorable in terms of financial figures than the EEOC itself. So certain states are better to file with the state agency first and the EEOC second New York City code allows for a very liberal standard and to file with them as well. I mean they don't apply the same type of measure of damages as the EEOC would. Again, more liberal, more expansive Employers hate this shit and it bothers them because they get entrapped in these investigations of these cases and settlements where big dollars are at stake.

Speaker 1: 6:52

When the case is filed with the EOC, you have to understand how they handle it internally. It may be known to you, may not be known, but here's the rough of it. This is it may be known to you, may not be known, but here's the rough of it. Cases are assigned an, a, a, b and a, c. A, I interpret as they accept your case and they're going to fine for cause. B, I call them borderline cases because they suck and they just have 50-50 chance of liability. C cases, I believe they stand for crap because they get tossed very quickly. So A, b and C cases on intake. Now the EEOC may have their own language that is different to what I describe, but after you following many of these cases up to these many years, here's how I see it.

Speaker 1: 7:44

Cases are and they issue what's called a for-cause, meaning they find that reasonable cause belief that you have a claim and there's liability attached. The employer did something wrong. These eight cases are so few and far between. I've actually received only one notice of for-cause in my entire career. I know the investigators a friend of mine, hey Linda, if you're listening but of the thousands I filed I only got one. What's wrong with that? All I'm doing is implement law and I only get one forecause finding.

Speaker 1: 8:14

It's because the agency is not set up to handle and litigate cases. They're set up to dispense with their advice about implement. They think they're going to be influential with respect to the courts, but in reality they're just a functionary check-the-box system and that's all they are to me. I literally check the box. I administratively exhausted my remedies by filing with the state agency and the federal agency. You're the federal agency and that's it. I don't waste any more time or client money on the EEOC's process, likewise for the state agency, unless it's the California Fair Employment Practices Agency or it's some other more liberal and protective agency. I'll spend time there. As I tell you a little bit later my process of doing this, you'll understand why I literally check the box. Move on.

Speaker 1: 9:09

So now you have your case filed, you think you have an A case and you filed your Form 5 charge and you have your affidavit and maybe you get invited to a mediation for the EOC. Well, the EOC does mediate cases. Let's say you don't have an attorney, you want to have a mediation. The EEOC will do mediation for free. It may take you a few months to schedule because, again, they have very limited resources. This is not the IRS, this is not the Department of Defense, this is the EEOC a very limited budget, the mediation that you should expect. You know this is part of filing a successful click case, and success means getting a settlement agreement from your employer If you have a mediation, mediation is very straightforward. A neutral third-party mediator who is an employee, typically an attorney will mediate the case for the parties and you go in there and you make your best shot and you be professional and you make counter offers and eventually you arrive at a settlement. If mediation fails and or the EEOC kicks your case out because it's a B or a C, because it's crap, you're going to get what's called a notice of right to sue and this means that your case has been dismissed. They didn't say that's dismissed on the merits. This decision doesn't have any binding effect on any court in the future and you have 90 days to file your lawsuit or you waive your claims. So, from beginning to end, so from filing to getting a notice right to sue that's a snapshot of the basics of filing an EEOC case.

Speaker 1: 11:27

State agencies are very similar to that and they have their own. Well, let's keep things simple. You have a letter to the agency stating your filing complaint and you have an affidavit. If you attach a Form 5, you attach it. Now let's talk about the affidavit. Okay, if you followed me for a while, you know that the affidavit is king. It produces the outcome of the case. It literally directs how much money you're going to get in your severance, because the affidavit's filled with facts and you yourself can file a successful complaint with the EOC.

Speaker 1: 12:04

Make it look like you have an attorney. You don't have to tell anybody you have an attorney. You just file your affidavit and see if you negotiate. You can always hide the attorney in the blind saying well, I have an attorney, I've talked to him and we've come up with the following counteroffer and you just basically bullshit your way through it because no law says you have to disclose. You have an attorney. The attorney is not required to file an appearance with the EOC. Although they may mandate that or some way, it's not required by law. So you're not going to lose your case if you don't have an attorney. So the affidavit is part of, and it leads and controls the whole entire process of a successful complaint.

Speaker 1: 12:42

The goal of filing a successful complaint is getting the employer to do what Pay you settlement money for the claims you're putting forth in paper, factually, in your narrative. I can't repeat that. Well, I will repeat it because I'm going to repeat it because it's so important. It's what makes the money. Show me the money, show me your affidavit. Okay, this thing can be lengthy. It's intended to be. It's precise, it's factually driven. You can use your quotes from emails, quotes from text messages in Slack, your memory about what people told you, your story, your story matters. The employer will not write their own affidavit. You'll not see any affidavit from the employer at all.

Speaker 1: 13:28

The compliments I get from opposing counsel are this Did your client record my client? Because it's so lengthy and precise, you gave us a lot to chew on, mark, in terms of investigation. It helped us, you know, by inference. You know revenue for the law firm investigating the case, because it's you know it's 100 and 200 paragraphs in length. You know it's 30 some odd pages long. These things can be huge and they're the culmination of what we do in investigation. We ask the client to pour over the facts and then do it over and over and over again, and more and more comes out each time. We do an iteration of the affidavit because we're learning more and the client's getting up to speed in terms of what is relevant, what's not relevant and understanding how to build a case. You've got to build a case based upon facts, okay. So when you're writing your affidavit, be thorough, get down to the nitty-gritty of the comments made to people made to you, made to others.

Speaker 1: 14:28

Claims of other workers can be included in your affidavit. Bad acts of the employer, although not a part of your claim, can be put in your affidavit to push the employer to, um, you know, roll over to your settlement demands. And the reason why is because a lot of stuff we put in affidavits don't have a standing basis for a client to put a claim on. However, they are terribly embarrassing to the employer and if it became publicly known in the following manner, I'll show you how hurtful and it can be for the employer in terms of marketing and PR. These affidavits, I take them and I put them into a complaint during the negotiations, a complaint with a federal caption on it, and I changed the pronouns of the same facts the client gave me and I wordsmith it so it works correctly. But it's the same set of facts and containing all the Pareto horribles of the shit that the employer had created, or at least my client became aware of. And you have to understand this is involving public companies who may engage in deceitful behavior.

Speaker 1: 15:41

Financial fraudulent behavior. I've seen everything and we put it in these narratives financial fraudulent behavior. I've seen everything and we put it in these narratives and they are so compelling that senior management just freaks out and they end up capitulating and paying out large dollar settlements to my clients because they don't want this public disclosure to happen. So it's about public disclosure of your case, of what claims happened, and public disclosure about the junk that the employer allowed because of bad judgment or whatever, or just ego. You know large egos, narcissism, whatever and it shows up in this narrative. That's the job of the narrative affidavit.

Speaker 1: 16:19

When you file the EOC, the facts matter in the case. You have to do some, you know, learning and understanding about what discrimination is, what a breach of contract although it's not applicable to the agency, breach of contract claims or representation claims Everything gets put into the narrative, even though it's not covered by the agency itself. Entirety of your story about your claims. And you don't care who's going to read it, because and you don't care if you're going to engage in a future pissing match with the employer because you want to tell your story Now. I'm going to caution you. If you don't have an attorney, there's a tendency for clients to overkill and over-emotional and over-dramatize the narrative. I'm going to encourage you.

Speaker 1: 17:05

There's a way to say facts in your narrative in a very dramatic way, but not with the anger and type of vile language that some people use. You can just think about when you're writing. You're going to read this thing in front of a jury. You're going to want to be professional because you want to be persuasive. You don't want to be professional because you want to be persuasive. It's a use of words and language have more effect than just you know blathering out emotions about why this employer sucks and why they didn't like you and you didn't get along with the manager. You got to just push that aside.

Speaker 1: 17:41

What do the facts state? And that's it. Do they show an example of disparate treatment because of your race, age, sex, whatever it is, and then tell the story in chronological order. Use dates, use information to your advantage. You are witness to all this happen in front of you. Don't second guess yourself for inclusion. Put it in there and then read it to yourself several times.

Speaker 1: 18:08

It's going to take a while to create this thing, but with you having knowledge of what the EEOC puts on their website about, you know it's reasonable accommodations and denial of that, or it's discrimination based upon sex. You have the law there. They've given it to you. It's on their website, eeocgov. State law is the same way, if not more liberal again, like California or New York City. So you have the information about what's illegal, but you don't have the facts.

Speaker 1: 18:34

And that's what the affidavit does. It puts forth the facts and causes you to basically synthesize what you experience with what actually is the law and then you put it in paper in chronological order. Okay, when you do that and you put a caption on it, like you put a caption on the top saying US Equal Employment Opportunity Commission in the center of the page, and you put a block quote or you know Sharon Jones versus Accenture and you put that you know her versus them and you put a date and you put the EOC number. You've created a caption for the affidavit and you put underneath that caption you put charge affidavit of Sharon Jones. And then Sharon Jones duly deposes states and says and then you begin Sharon Jones lives here. Her age is this. Second paragraph she worked at this. Their address is that. And you then go as many paragraphs as you need to till the very end of the story and then you put a notarization page at the bottom. You get a notary and you have that notarized and you submit that with your Form 5 charge. That is how you create a successful EEOC complaint.

Speaker 1: 19:41

Now, I don't spend client monies on their behalf with these agencies. I basically check the box and I move forward what I essentially do, and you don't have to do this. You can do what a lot of people do, which I don't really recommend, but you can sit around and wait for the EOC to do something. Well, let me pause. Okay, now I'll pause further. The EEOC is not going to do anything for you Anything. Period. Don't expect it. Sorry, I'm being dramatic. So they don't do shit for you. So you have to be your own self-advocate case. Check the box, get your UOC number, get your state counterpart complaint filed, get that number as well, and then you request from the agencies a notice of right to sue and you cause the clock to tick once you receive it, because you have 90 days to file a suit, and you send and begin a process with the employer to negotiate. And you can do this with your attorney.

Speaker 1: 20:45

You hire and help them, but what you really want to do, what makes employers mad and drives them crazy, is when they get pushed around. I push, I push really hard because they don't like it, because I figured that out over the years, remember, I've been doing this for a long, long time. They don't like when they're confronted with the facts. You know, somebody had a, you know it's like equivalent to a marriage, and somebody had a cheating spouse. And they got confronted on a text message or the video, whatever it was. Employers don't like to confront the reality that they either knew or should have known that was happening to one of their employees. Okay, they generally know what's happening. I mean, just, let's be clear about this, there's no innocent employer here. Okay, if you're. If you believe that you're insane, okay, you really are insane.

Speaker 1: 21:39

I make my entire livelihood in business, my professional life, telling you that employers are fully aware of what they're doing. They do it intentionally and they use I'll go even further, they use the at-will employment rule to basically discriminate against people and nothing's going to stop them, okay. So, yeah, I am twisted, but you know what? I'm made this way? Because of employers. Because pause, more pause, deep breath, drama. What's Mark going to say next? Because employers have shown me every possible freaking situation that they have created for their employees over the 28 years I've lost track. Now that they have done to my clients. I've seen everything. I can read the matrix perfectly. I know exactly what's going to happen. I know how to touch the weak spots and how to push the dagger up the ass because I just don't like it. I know it all, so I'm not just blowing smoke.

Speaker 1: 22:37

This is a viewpoint I've garnered on behalf of clients painfully, emotionally, dramatically over the years, and you need to listen and you know what. No one else is going to tell you this. No one. Go around, search. You're not going to find a viewpoint like mine. Ever. No one does it. I do it because I don't give a shit. I want you to know about it.

Speaker 1: 23:01

And if you have the guts to confront your employer and you have the guts to engage in an emotional, mind-bending, pissing match, free lawsuit with an employer that's what I do every day. If you want to file lawsuits, we do that too. But filing successful EOC cases is really about using and marshalling the facts that you have, that you've witnessed. Don't undercut yourself, don't underestimate what you've been exposed to. Your memory of what happened can be used to create a circumstance to give you a severance package at the end of your unlawful termination while you're looking for a job and these days and this is now July 2024, job market's kind of softened and employers are trying to be picky and there's no more job switching anymore. Things are tough and the economy is kind of shaky and political environment well, that's really shaky right now if you look at the timeline. So it's really important to protect yourself.

Speaker 1: 24:03

Information is knowledge and it's power for you. Listen to what I'm saying, take a hard look at what you're going through, even if you're not fired yet. Still heeding this advice, because eventually the ticket will arrive for you. That termination day will eventually happen, because most people aren't guaranteed employment. You will eventually be in the spot that I'm talking about, where you need to do something, and I'm trying to arm you with information to do it All right. It's all there, it's free, it's a podcast, it's all it is.

Speaker 1: 24:40

The EOCgov provides all the information for you. My website, CapClawcom, provides all the information I mean. There's just tons of information there for you to absorb. Absorb it, give yourself a gift of information. That's how I file successful EOC cases, check the box and I start screwing with the employer really aggressively with my affidavit and then my federal complaint and to make demands upon them, threatening lawsuits, and you can do that too. Again, you can use an attorney, you can do it yourself, you know, fake it like you have one. But those are my thoughts for you in terms of filing successful complaints, much different than you would see from any UOC website that describes filing successful complaints. So heed the warning, heed the information, do what you will with it. It's just educational information, of course, but until next time, have a great day.