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Statute of Limitations
How long can I wait before I have to file my case?
For many claims of employment law, including discrimination based on age, sex, religion, disability, pregnancy and national origin, you must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the adverse employment action. An adverse employment action includes termination, demotion, failure to promote, reduction in work hours, unfavorable job assignment or involuntary transfers. This means that if you are fired you have a few days short of six months within which to file the charge of discrimination or your claims may be lost forever. With race discrimination claims there is a four year statute of limitations for termination claims, but a lesser statute of limitations (two years in Alabama) for all other adverse job actions.
Under other laws handled by this firm, including the Family Medical Leave Act, Workmen’s Compensation, Retaliatory Discharge claims, state tort claims for things such as assault and battery and invasion of privacy, all carry different statutes of limitations. If you believe that you may have a case under employment law, you would need to check with us to see whether or not your claim can still be timely filed.
Equal Employment Opportunity Commission
The federal government agency, the Equal Employment Opportunity Commission (EEOC) has responsibility under federal law for investigation of claims arising under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. This means that as a prerequisite to filing suit in court, a charge of discrimination must first be filed with the EEOC for matters such as discrimination based upon age, sex, national origin, disability and various types of retaliation.
If you have a claim of discrimination under one of the laws covered by the EEOC we will prepare the charge and then file in with the EEOC on your behalf. The EEOC does not have responsibility for many other employment laws that are handled by this law firm. If you believe you have a claim of employment law, you need to check with one of the attorneys of the firm to see whether or not a charge with the EEOC would need to be filed or whether suit could be commenced in federal court directly without going through the EEOC.
Typical Legal Process
Here are the major phases of a normal employment law suit.
For general informational purposes, the following is a short synopsis of the process followed in most discrimination cases:
Some laws do not require first exhausting administrative remedies through a government agency. Under those laws, suit can be commenced immediately. Kira Fonteneau specializes in all areas of Employment Law, and for any case accepted by the firm, representation is provided at every phase of the litigation process.
I. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC):
We will prepare a charge of discrimination for you and send it to you for review. After we have it factually correct, you will sign it and we will file it with that agency. When EEOC first receives the charge they send out a form letter to the company asking for a response. We do not receive a copy of this response until after your file has been closed. With that form letter they also ask the company, and us by separate letter, if we are interested in trying to mediate the case. Mediation is a process by which a neutral third party tries to bring about a settlement of claims by a plaintiff against a defendant. I find that the EEOC mediation conferences often do bring about a settlement. As a result, I generally sign the form on your behalf agreeing to the mediation. If the company chooses not to mediate the case, the mediation process ends. There is nothing binding in going to the mediation, but it does provide us an opportunity to first engage in some early discovery, and secondly to try to settle your case.
If the case is not settled at mediation or if both parties do not agree to mediation, the charge is assigned to an investigator. That investigator will send out some questions to the company to which it is to respond. In some instances, the investigator may go to the company and do an On-site@ investigation where they look at documents and records. They will ask the company to give their response to the records by giving specific responses. The EEOC investigation normally takes several months (6 to 9 months), or longer. At the conclusion of the investigation, the EEOC will issue a Notice of Right to Sue letter. I will get a copy, as will you. The agency will more than likely issue a ruling that states that it was unable to substantiate the charge. They issue very few favorable rulings. It does not matter what they rule. We will still have the right to file suit in federal court ninety (90) days after they issue the Right to Sue. Upon receipt of the Right to Sue you should contact my office and inform my staff the date you received your Right to Sue, and to make sure we got our copy, so that your rights can be protected.
II. INITIAL PHASES OF LITIGATION:
(A) COMPLAINT: A lawsuit is started by the filing of a complaint. I will prepare that on your behalf and send it to you for review. You should make sure it is factually correct and notify my office of any changes. When the case is filed a filing fee is paid to the Clerk of the Court. The case is randomly assigned to a judge. The complaint is then served on the defendant. The defendant has twenty (20) days to answer. That does not mean that twenty days after we file the complaint there will be an answer, as it sometimes takes a while to get them served. At the point they do answer, the parties have to get together within forty-five (45) days to have a meeting regarding the planning of the discovery phase of the case.
(B) DISCOVERY: I will be seeking answers to questions that will be helpful to your case. I will also try to obtain documents that will help us prove your case. They will send your personnel file and certain other documents. I may send you some or all of the documents that they send to me for you to review.
(C) DEPOSITION: After we have completed the paper discovery exchange, the company will take your deposition. A deposition is where you will sit down in a room in front of a court reporter. The company’s lawyer will ask you questions about a variety of subjects. Everything you say will be taken down by the court reporter. In some instances the other lawyer even wants to video tape your answers to his questions. You should not worry about this proceeding, as I will go over everything with you ahead of time. We will meet and discuss the specific facts of your case, the questions you will likely be asked, and go over any documents that are relevant. You will be prepared for your deposition. Further, I or my associate, Felicia Long, will be present with you during that deposition. Depositions usually last from a few hours to all day. You will need to make arrangements to be available for the entire day.
Felicia or I will be taking depositions on your behalf. We will be questioning witnesses for the company about documents they have produced and about the facts of your case. The depositions we take will be calculated to try to obtain information that will be helpful to your case. You will be able to be present during those depositions if you so choose, although you will not be required to be there.
III. SUMMARY JUDGMENT MOTION:
At the conclusion of discovery phase of the case (usually six to nine months after the case is filed), the Defendant will try to have the case thrown out by the judge. This is done by filing what is called a Motion for Summary Judgment. The Defendant will try to state the facts that were developed during the discovery phase in a manner most favorable to the company and quote case law to the judge to try to convince that judge that your case should not be allowed to go forward to a jury. Felicia or I will be responding to that summary judgment motion to try to defeat it. We represent the facts in the light most favorable to you and cite applicable case law. Once the briefs are submitted the judge decides whether he/she think the case should be submitted to a jury.
Judges often throw out these cases at summary judgment. As many as one-half of them never make it to a jury. The reasons are varied. It may be that there is not a question of fact on a material point that would allow it to go to a jury. There may be some element missing in the proof that would not allow us to be able to prove your case in accord with the law. It may simply be that the judge sees things differently than do we. Should the judge throw your case out that would be the end of it, unless we took an appeal. Appeals have to be analyzed on a case by case basis. Should the judge deny their Motion for Summary Judgment the case will next be set for a pretrial conference.
You would not attend a pretrial conference. Only the lawyers and judge attend. At that point certain limitations will be set on witnesses and exhibits. At the pretrial conference a trial date would be set.
Once your case is set for trial, a date certain will be set. Before that trial we will spend a great deal of time together preparing you for your testimony, as well as preparing for examination of other witnesses. The different aspects of your case will be reviewed and preparations will be made to put our best foot forward at trial. Any questions you have about trial are best reserved until this point in time.
The above outlines the entire process through trial. That does not mean that your case will go to trial or even as far as summary judgment. By far, most cases are settled. I am always open to exploring settlement possibilities with the other side. As I mentioned above, this may occur at the EEOC stage; it may occur at any point after that up to the point, and even during trial. Most have settlement discussions sometime after the case is filed during the discovery process. I cannot predict for you whether or not that will be true in your case, but it generally is true. I cannot predict for you what your case is worth at this point in time. There are two sides to your case or we would not be in court. We must patiently wait on reviewing the facts objectively as they develop. I will then make a recommendation to you regarding a Bottom line@ settlement. I always try to get more than the bottom line, but this amount would be understood by us to be the least you would take at this point in time based upon the facts as we know them. All of that is subject to change as facts develop.
I hope the above has been helpful in explaining the process that is just starting for you. We will do our best to guide you through that process in as painless and as beneficial a manner as we can. It is your responsibility to keep us informed of any change in your address or phone numbers. You can do that by phone, fax or letter. Also, if you need to talk with us you need to schedule an appointment. The only way to insure that you can speak with someone in this office is to have a date and time certain scheduled. On a final note, we do not call you about your case unless there is something to report or ask. Do not be concerned if an extended period of time may go by without hearing from us. It does not mean that we are not working on the case. It just means that it is during one of those points in the case where very little is going on that we need to talk with you about. We are happy to be representing you, and look forward to a successful conclusion.
If you feel your rights have been violated, schedule a free consultation with us.
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