Winthrop Hubbard Part 2 TranscriptTranscript
Announcer: Fired from your job? Afraid you might be fired? Are you facing other problems at work? Listen to what the lawyers have to say about it. Here is your host, Attorney Tom Spiggle.
Tom: All right. Welcome to the “I Got Fired Show” for people who have been fired or afraid that they might be. I am Tom Spiggle, founder of The Spiggle Law Firm. And today, we are thrilled to have with us our in-house law fellow, Winthrop Hubbard, who graduated from Georgetown and is now working with our firm while he awaits the results from the bar. And you will recall from the last podcast that Winthrop joined us on, Winthrop worked with the EEOC, was an intern there during law school. And so he has a unique perspective in that he knows what it’s like for the person, you know, what’s like on the other side. So I know what it’s like when you take people in and how it works, but Winthrop has some perspective of what it’s like to sit on the other side of the table. So I’m going to be talking to you about that today, Winthrop. So welcome, again.
Winthrop: Thank you.
Tom: So last time we talked about generally, you know, the EEOC, the EEOC’s jurisdiction, when someone should file with the EEOC, the various laws that apply, and more about, you know, kind of the 10,000-foot view. So for those folks who are just tuning into this one, the last show that we did really the podcast that we did… And I should say this is the first time that we are doing this on video. So welcome, Winthrop, to our first video round of this. And the last one was just a mere podcast. And this one will also be a podcast, but if you are just tuning into this one, the last one we really set out some of the broad view of how the EEOC operates. So it’s worth listening to. All right. So, Winthrop, let’s pick up where we left off last time. Now we are… Somebody has decided that they need to file with the EEOC. That it is an area of discrimination that is covered by Federal law. And they want to file a charge. So how do they go about doing that?
Winthrop: Well, there’s a couple ways they can do it. Obviously, one of the ways they can do it is work with an attorney to do it. They can do handle it by themselves, but obviously, they can also work with an attorney to do it. So you could look around, check LELA or, you know, come to us here in our area, and we will assist you in the drafting of the whole process there. But basically, what it comes down to is whether or not you file it or hire an attorney or not, what you’re going to be doing is filing something called a Form Five charge. And this is just a… The way they have it at the EEOC, it’s a single piece of paper. You’re going to have your basic information at the top, you know, name, address, phone number, email. The same goes for your employer, name, address, phone number, email. And then, you know, you have other areas that fill in with type of discrimination that you feel you faced, as well as, you know, a box that takes up about half the page, which is just, “Tell us your story.”
The way it works at the EEOC is if you go in for an interview or you have a phone interview with someone, they will offer to draft the charge for you. So they will offer to fill in all that information as you tell them and then also draft the written portion as well. So there’ll be a very short summary of your story. It will be just probably a paragraph or two there, as well as the applicable laws that they feel that you have asked them to… that they feel apply to the type of discrimination you have applied, you have talked about.
And they will, of course, ask you to make sure that… or they should, of course, ask you to make sure that they’ve covered all the bases that you want to cover there. So the two ways you’re gonna do it is so you can file it through an interview, or through an attorney. You can even file it yourself I believe online. I don’t have too much experience with that process because, of course, the role I played was with helping people draft their own charges. So if they came in online, I didn’t see them, but you can do it online, as well.
Tom: Yeah. And that’s fairly new, I think, that service. And so just to back up for those who didn’t listen to the last program, you can go to the EEOC website, which is www.eeoc.gov. And we’ll put that in the show notes. And, Winthrop, you mentioned, if you are looking for a lawyer, if you are in the D.C. metro area, a great service is the Metropolitan Washington Employment Lawyers Association. I’ll take a deep breath before you say that. It’s mwela.org.
That has a great attorney locator function on it, but as you mentioned, it’s not… You know, obviously, there’s some advantages to have an attorney to help you draft the charge, but it is not required. In fact, I think the vast majority of people who file charges with the EEOC do so without a lawyer. And there are many good reasons, even if you plan to hire a lawyer later to go ahead and file the charge, the number one being making sure you get it within that either 180 days or 300 days statute of limitations that we talked about last time because as you know, it is always possible to go back or usually in most instances, to go back and amend a complaint, a charge.
Winthrop: A charge.
Tom: But miss that 180 days or 300 days to file the charge, then you’re out of luck. So you want to make sure you get in under the wire. So let me ask you this. If somebody’s filing a charge on their own, are there any tips or things that would be helpful in terms of drafting what I call the narrative portion which is right that box where you just kinda tell them what happens?
Winthrop: Well, what you want to make sure you do is you include all of the… The first thing you want to make sure you do is you include all the facts that demonstrate which type of discrimination you feel like you faced and I should say all of the facts. Like I said, when the EEOC employees draft this charge, it’s going to be just a couple of paragraphs. So basically, what I mean by all the facts is, “I was discriminated against on this basis. Here is the strongest example of that.” And then at the end, what the EEOC employees will do is the last like sentence or two will be, “I believe I was discriminated against and retaliated against in violation of…” then the name of the law, you know, Title Seven of the Civil Rights Act of 1964.
So just include the law that you believe you were discriminated against under and the most prominent instances that represent that discrimination. What this charge is, is just the starting dot on their investigation. So this is what they’re going to be sending to the employer. And that is what your employer is going to be initially responding to. So just make sure you have enough in there that your employer can easily respond to, they know what you’re talking about basically. You don’t want… because if they don’t, then you get back… They send a response. And then it’s not responsive to what you’ve told people. And you get back into an unnecessary back and forth that can make longer an already long process, but that is the EEOC investigation system.
Tom: Yeah. And I think that’s a good point in that narrative section, you don’t have to include everything but the kitchen sink. You are not foreclosed from raising other facts and other instances. It sounds like this is probably your experience. I know I’ve talked to somebody who did some of the D.C. Office of Human Rights, which as we talked about in our last podcast, is also an agency. It’s a local agency. I mean, with the district that also cross-files with the EEOC. It operates in a very similar manner, but what he was telling me, and I don’t know if this is your experience, but that when people included everything but the kitchen sink, they almost felt like the person lost credibility because they’re just throwing everything out there and not trying to differentiate it. So I don’t know. Is that your… What was your experience when you were reviewing those charges? What was the effective and what was not?
Winthrop: My experience was that the people writing and reviewing the charges at the EEOC appreciate brevity. And they are very busy. I always have a backlog. And so if you can be succinct, if you can be… Like don’t leave out something. You know, don’t cut yourself off. Don’t, you know, unnecessarily say, “Well, that’s not my strongest, you know, basis for discrimination. So I’m not going to include that.” No, include all the basis that you think you need, but absolutely brevity is valued there. And it can start you off the right foot. Let’s just put it that way. It’s not necessarily going to be a mark against you, if you include valuable information that makes your charge a little bit longer than an average one, but if you can make it short and sweet and effective, then I think that’s the best way to write that charge up or to have them write it up for you because oftentimes, they will draft the first instance.
Tom: Yeah. No, I think… And that is why you don’t need an attorney, that often is where it is helpful because somebody who is experienced in discrimination is understandably upset by it and sometimes loses some perspective on how to narrow the story down. And having an attorney or someone else help you draft it to kinda narrow it down can be helpful. Let me ask you this. Is it required that you mention the law? Like if I send in a paragraph that said, “I think I was discriminated against on the basis of race,” do I have to put, “In violation of Title Four… Title Seven of the Civil Rights Act 1964?”
Winthrop: No, it isn’t. What is required is that there’s… Like I mentioned really briefly earlier, there are small boxes right above the heading section on this form, which indicate which areas of discrimination you feel that you’ve suffered. And there’s… You know, and it will list them all, the ones, you know, all of it, the EEOC covers. And you can… What is required is that you X those boxes for the ones that you feel you’ve experienced. So you don’t have to state, you know, like I said, the long form of the law in your charge, but do make sure that you check those boxes so that they know what charges you’re bringing against your employer or your former employer. So make sure that you do that so that the EEOC is investigating the right things.
Tom: Right. And I know I have heard of this and, of course, I never experienced, but one of our clients, I don’t know if you saw this, that one thing to keep in mind is there’s also a box for retaliation.
Tom: And that there have been cases where folks have… You know, they check the box for the underlying discrimination, race, sex, national, or for whatever it may be. And they actually have been retaliated against too, but they don’t check that box. And that is one area where, you know, if you don’t provide sufficient facts and/or you check that box that you could later be foreclosed from raising that issue. So that’s another one I think to be aware of.
Winthrop: Absolutely. Yeah. It’s something, obviously, if the retaliation happens after you filed a charge, which is one of the basis for retaliation, you can amend the charge when that happens, but you, of course, want to make sure you do that, amending within the same 180-day, 300-day period that you have available.
Tom: So talk a little bit more about that. So how would it… So let’s say I file… I’m still at work. You know, I go and I file a charge and say, “I’m being discriminated against on the basis of race.” And then all of a sudden, my boss starts to disallow overtime or whatever, somehow take action against me. How does one recognize when that is illegal? I mean, if you feel like it is, how do you go about amending a charge?
Winthrop: Sure. Well, retaliation, while I was there, we were told it was the most commonly-checked box that people submitted to the EEOC, often in conjunction with other things. Obviously, so it kind makes sense. You know, “I experienced sex harassment. And I was retaliated against for reporting it. I experienced race harassment. And I was retaliated against for reporting it.” So to be clear though, it’s also one of the most easily misunderstood ones. So it’s not just retaliation for anything.
You know, it’s not just retaliation for, you know, saying that your boss didn’t do his job properly. It’s specifically retaliation in connection with raising an issue in the office connected to some sort of discrimination or harassment connected to a protected class. So to break that down, maybe it’s best to just use an example. Someone in the office experiences race discrimination or harassment. You see it. And you report that. If they retaliate against you for that action, that’s the type of retaliation that the EEOC is looking for.
Similarly, you file a charge against your… Like we’re talking about, you file a charge against your employer on one or another basis for discrimination. And your employer sees the charge and then starts treating you worse, you know, takes actions against you, starts disciplining you or even terminates you. That’s, again, the type of thing that we’re looking at. So it’s connected to what they call an EEO activity, equal employment opportunity activity. So something where you have made a complaint or raised a question around a discrimination issue. And to be clear, even if you’re wrong, even if there was no discrimination, even if there’s no merits to your initial raising of the question of discrimination or harassment connected to one of these protected classes, any retaliation taken against you regardless of the merits of your original statements is illegal. And that’s the type of retaliation that they look at.
So I think going back to the second half of your question, finally, to amend the charge, you’re gonna have to contact the EEOC and contact the investigator that gets assigned the case. And they will help you through it. And you can, again, work with a lawyer or work through them to just, you know, to talk to them and say, “Hey, I have filed this charge. And in response to them receiving it, here’s what they’ve done against me.” And the EEOC will send an amended document to your employer.
Tom: How will I know who my investigator is?
Winthrop: Right. So you get assigned one when your charge is processed. And so when your charge is processed, they assign an investigator to it. And that investigator is the one who is going to be sending the charge to the employer and also who’s going to be the one corresponding with the employer getting the response back from them and then, you know, reaching out to you again for your response. Tom, I’m actually not quite sure how you’d know before that happens. Do you know?
Tom: You’d probably call, right? You’d probably call.
Winthrop: And as we said on the last podcast, if you are gonna call, mark out some time in your calendar. It’s gonna be… They’re open during the day. They don’t have the greatest hours in the world. It’s, you know, even probably worse than Post Office hours. And they have lots of calls. It could be different based on your office where you live, but if you live in a larger metropolitan area, it could be several hours before they get all full. So you can definitely call to figure it out. Other than that, you should eventually receive some correspondence from them and you can know that way, but if you haven’t received any of that correspondence yet, you’re probably gonna have to call.
Tom: Yeah. And I would say also, you know, if it’s two things. If I was advising someone, a potential client, or a client, if they were unsure or even if I was unsure whether the conduct constituted, you know, illegal retaliation versus just a broader category of retaliation or bad actions, I’d go ahead and file, right? Go ahead and amend the charge. The worst thing that happens is you don’t succeed on that charge, that it won’t otherwise hurt you, if it turns out that you’re wrong about the basis that you filed. And also, one thing to be aware of to your point, Winthrop, you know, the folks there are, you know, understaffed, overworked, and it can be a long time before you would hear something from your investigator either by the phone or by email.
So you may be in a situation… I’d had to see somebody miss a deadline. And so I would advise that if you believe it is illegal retaliation, again, you don’t want to allow that 180 days or 300 days to pass. Hopefully, it won’t take your investigator that long to get in touch with you, but you never know. There’s no harm in going ahead and trying to submit another charge. At least, you know, you get that box checked. And you won’t run outside the statute of limitations. They can always consolidate the charges later. So what happens? Like so what was your experience? What did you do? And what was your experience? And what would you say people, you know, need to know when they are coming in and filing their charge, if that’s how they do it?
Winthrop: So yeah. A lot of the stuff that I did was me with individuals who came into the EEOC just who didn’t know anything other than this was the place that they went to, to complain about discrimination. They didn’t know much about the process, about anything like that. And they would just sit down with me or one of my colleagues. And yes, that does mean that sometimes, if you go there, you will sit down with an intern and they will help you write your charge. It’s not necessarily a bad thing. It’s just like we talked about earlier. They are overstaffed. They won’t be the one doing your investigation, but they will be the one to be your initial contact, but to back up a second, so we would talk. We would sit down. We’d get a room. You have appointments that you make. That’s not really a walk-in system. And you meet with them. You talk through what has happened to them. And you introduce them to the process of the EEOC, which is, “Hey, how we go about this is we file this charge.” And we also have them, at that time, if they were willing to sign a mediation form saying that they were open to mediation. And we would send that along with the charge. It’s a…
Tom: Why would they do it that way? You know, why that approach?
Winthrop: Why then? Because it’s something they have to sign to get… We had to get their permission through a signature to do it. And it’s a voluntary process. So both sides have to agree to it, but if they can get mediated and finished without a long investigation as soon as the point you’d file a charge as possible, right? So it’s best for the EEOC and it’s best for the parties in general. So the EEOC wants the case done with and settled. And it’s a good solution for a lot of parties as well. So yeah, we’d get them with the charge and assigned mediation all at the same time.
So you tell the story and how it’s… The interviewer would take notes. The interviewer would translate those notes, like I said, into a narrative on your charge. They’d fill out the boxes, fill out the necessary essentials at the top. And then they would show it to the person who came in, the interviewee and make sure that they had everything right. If we need any changes, they would go back and do that quickly. And then they’d have them sign it. We’d make copies. Give one to them. And then send it off.
Tom: Yeah. And that’s helpful. So in terms of how people act in that interview, how they comport themselves, are there any tips? Like if you’re advising a client before they go in, what sort of things around the edges, you know, do they need to know about that can either help or hurt their chances of having a successful experience?
Winthrop: I just, once again, would say that if you can… The best way to get on the good sides of these interview, these people at the EEOC is to, you know, have your facts straight, have you story straight, and be, you know, succinct, which is tough. It’s very tough to do. I understand, given that this is oftentimes a very emotionally-charged situation. And the employees at the EEOC do understand that. They’re willing to sit and listen to you for a second. They’re not gonna judge you. If you get emotional at all, it’s totally understandable, but just stick to relevant facts as much as possible.
And, you know, don’t be afraid when they present you with the charge that they’ve written up for you to say that they missed something or forgot something or something is not right, but at the same time, make sure you’re as respectful as possible during that process in doing so, but like I said, just if you can be as succinct and to the point, they’ll love you. It’s tough, like I said, but they have a lot on their plates for the day. They want to make sure that this charge is effective. And so they want to make sure that they get just the facts that are most relevant to your situation, but like I said, they are understanding people. People come into them every day and talk to them about these situations. And while they can be a little…it’s possible to get a little jaded, they’re also very experienced, as well.
Tom: What did you hear from the other side, from the investigators? Like what kind of intel can you give us about that to thread those needles? What do they investigate on?
Winthrop: Well, the first thing I would say is there is a lot of really strong and people who are there for all the right reasons, right? It’s a neutral organization, but it is definitely a one that whose employees are very, I don’t know… I guess I would say they… It’s a neutral organization, but its employees would probably rather have an employee win a case than an employer. That said, there’s a big variance in the investigator that you get. And that’s just a roll of the dice. Just like any other federal agency, the level of employee’s diligence varies as much as you would imagine in a giant agency like that.
That said, just don’t be afraid to reach out to them, if you need to, but, you know, when you get their email and you begin that correspondence, don’t be afraid to send them updates on a situation as to however you feel is fit, but at the same time, if they don’t respond to your email right away, that’s probably because… that’s normal I would say. It could take a couple days. It could even take a week before they get back to you. Try not to send six emails in that time period, but like I said, these are generally good people. They are trying to do the best they can with the resources that they have. So just send them what you think is relevant. And they can parse through it, but don’t send them, you know, 600 pages of documents because they’re not going to read it. They’re just… They don’t have time to read it.
Tom: No, they don’t have the time. You and I talked about this. I know this wasn’t your experience, but I think it’s important for people to know. We had someone one time that had gone and filed with the EEOC. She’d gone through the process. She’d gotten her… You know, they had found no cause, which is often the case with many cases in the EEOC, even very good ones. They had found no cause and issued her, her 90-day right to sue. And she had done something that people should be aware of, that she had requested a copy of her file. She had submitted a Freedom of Information Act request, a FOIA request, and gotten their file. You know, you can get actually the whole file. You can get what the employer said too.
And I was interested to see that I think this investigator clearly… I don’t know if he did the initial intake, as well, but he had met this person and then sat down and talked to her. And in his emails and in his notes, he was very candid about his own personal impression of her. And it was not a good one. He thought that she was difficult. He thought that she… Anyway, and he put this in his emails, in his writeup. So I think that raises for me for somebody who is going in and doing this in person… Again, as you mentioned, you don’t have to do it in person. You can fill out your Form Five on your own and fax it in, email it in, put it in the mail. You don’t have to go in and have an investigator or, you know, an intake person help you, although that can be a good thing to do, but until you sign that Form Five, until that Form Five is submitted, you have not filed the charge.
Tom: And we’ve had this happen a number of times where somebody has called the EEOC, perhaps done an intake, and they believe they have filed a charge, but for whatever reason, they did not while they were there. The charge was not completed and they didn’t sign. They ran into some trouble with the statute of limitations. So it’s important to remember just because you go to the EEOC or just because you call the EEOC and talk to somebody, until you literally sign on the dotted line on that charge, the charge has not been filed.
Winthrop: So one of the things, on that note, at least while I was there, one of the services they offered was a questionnaire that people were able to fill out. And it included all the types of questions you would expect to see, you know, “Who’s your employer? Who are you? What happened?” You know, all that stuff. And there was a box on there that says, “I would like to work towards filing a charge,” or, “I would like to file a charge on this,” or something like that, but that questionnaire that you filled out wasn’t a charge itself. The result of that box being checked was somebody would reach out to you. And that would be the beginning of… Reach out to you from the EEOC. And you could begin working with them to file a charge, but similarly to what you were saying, filling out that questionnaire does not satisfy the necessary requirements to filing a charge.
Tom: Yeah. No, that’s a good point. And so I think, you know, my advice is get that charge filed, you know, however you have to do it. Write it in crayon. I don’t care, you know. You want to get that. Almost anything else can be done, except missing that deadline to file. So make sure that you actually get your Form Five actually signed and filed in whatever manner that you can do it, with an attorney, without an attorney, long form, you know, succinct. However, you can do it, it’s important to get across the finish line. And another thing, and I don’t know that you played a role in this and this end of it. I know that on the, you know, after the Form Five is submitted that the EEOC, they have sort of three tracks that they put it in. Yeah. Do you want to talk a little bit about that?
Winthrop: Sure. Yeah. So they have a rating system. You’re not gonna know your rating. And your rating is not the end all, be all, but there absolutely is a rating system to the EEOC filing. They accept every charge that’s submitted to them. They have to, but as part of their process of making sure that they’re efficient with their times as much as they think it’s possible, and as well as part of their process of reaching some of their agency goals, they have a three-tiered rating system they can go. Every charge that comes in, and this was actually… When your intake happens, you’ll get a rating. And you won’t know it. And whoever does your intake is going to be the one who gives your rate to the charge.
So it’s a one, two, or three. Pretty simple. A one will be reviewed is rare. It’s very rare. And oftentimes, it is more connected to what type of case you’re bringing. For instance, if it’s working towards one of the goals of the agency, if this is like a stated agency goal, “Here’s a type of case that we want to push policy on.” That could get a one. It’s very rare. A two is the most common. It’s like probably 75% are twos. And that just means you’re gonna go through the normal long form process. It could be with the normal investigation. It’s not gonna go necessarily in front of an attorney’s eyes at the EEOC because the EEOC does have its own attorneys. And it’s just gonna go through the investigative process.
And then a three means that they believe there is a reason your case is without merit. They did not hear in your story to them anything that suggested to them it was discrimination at all based on the protected classes or they believed it was outside the deadline. So what happens when you get a three, and like I said, it’s more common to get a two and especially if you, you know, follow some of the advice we’re giving here today, but if you get a three is you’re gonna get a notice of right to sue pretty darn quick. They’ll send the charge to the employer.
It will probably be a pretty quick turnaround on the, “Hey, they’re gonna get it out of their system as fast as possible.” And what that means is most of the time, it can take a year or more to go through a charge, hopefully less, but usually it’s around a year or more to go through the entire EEOC system. If you’re a three, it’s gonna be a few weeks, which, if they’re wrong, isn’t necessarily a bad thing, but yeah. So that’s the three-tiered rating system that they use.
Tom: Yeah. And so to your point, so the EEOC publishes has a year or three-year plan. I want to say… Anyway, they have a stated published objectives that they are trying… a policy objectives, that they are trying to accomplish. And so you’re right. So they are looking for particular types of cases because the EEOC, as we have said many times, has limited resources. They’re only very… I think it’s less than 1% of the cases that the EEOC is gonna… You know, like you said, they have their own lawyers, that they are gonna take and litigate on your behalf. If you end up being one of those people, and we’ve had a few, it’s like you’re not quite winning the lottery, but it’s close because you’ve got the Federal government litigating the case and they’re really credible.
It’s usually because you have fit… You have a very strong case and you have fit one of these categories. Like I know one of them now is pregnancy discrimination is a policy objective of theirs. And so if you were coming in with a pregnancy discrimination case, it doesn’t mean you’re gonna be a one, but it makes it more likely than if you were in one of the non-prioritized categories. And you can correct me if I’m wrong, but I believe at that stage, they go into investigation first, right? They skip mediation. Is that right? If they are interested in it, they take it and they look at it. And actually, start have to work it up.
Winthrop: I didn’t have too much experience with this, obviously, because once it went to the lawyers’ desks, they took over control. So I can’t say exactly what their process is there, but I should say that they’re very good. And they have a very high win percentage.
Tom: Yeah. Well, the EEOC, not that they don’t lose, but if the EEOC’s on your side, then, you know, the employers usually are gonna settle. In fact, you can still have your own attorney. You don’t have to be… There are people that do that. Just your attorney is not gonna have a tremendous amount to do, which is one of the worst problems, while the EEOC works up the case, but my understanding is if you’re one of those lucky people that end up as a one, that you’re not put into the mediation category initially. You go to a lawyer because the EEOC, if you’re a one, wants that case, for whatever reason. And not that there won’t be a chance to settle. They still… You go through a process.
It’s called conciliation, if the EEOC is doing it. And that’s where the EEOC advocates on your behalf at the mediation itself. So if you don’t hear something right away, you know, and you don’t get put into mediation, then that could be a good sign for you because you’re in that 1%. And then that category two that you talked about, it’s important for people to understand when mediation is offered, that is standard procedure. And that’s usually before there’s been much of any investigation done because the whole point is the EEOC has looked at it and said, “Well, maybe yes. Maybe no. Let’s give these folks a chance to try to figure this out.”
And then they offer mediation. So just, you know, people should know by virtue of the fact that they are offered mediation and go to it, that doesn’t mean the EEOC thinks anything about your case, other than you have at least gotten within the broad parameters of the kinds of cases that the EEOC, you know, that they will handle. You know, so that’s important to consider. And then exactly to your point for the number three category, you know, if you go in and you say, “You know, well, I got a speeding ticket and I need a lawyer,” I’m being a little bit [inaudible 00:28:29] but if you say something, I mean it’s like, “Sorry you got a speeding ticket. You should definitely get a lawyer, but we don’t do that here. You know, we’re going to put you in category three. And you’re going to get your right to sue in a couple of weeks.”
And another thing to remember, and no disrespect meant to you, but as you mentioned, when somebody is doing the intake, it can be somebody who’s very inexperienced. That doesn’t mean that they aren’t good. It usually means they’re a law student, but we have had cases, one in particular that was very strong. And when the person went in, they went in for an in-person intake. When they went in for it, the person who was doing the intake, I don’t know why she said that or in fact why she thought this, but she said that she did not think their case was very strong. And they were actually both attorneys. And they went ahead with it and filed. And it was a good thing too because it was actually a very strong case that ended very well for them, but that’s important to know too is that, you know, with any public agency or maybe any organization, as you said, Winthrop, there are a wide variety of people and, you know, competency levels and interest levels.
And so this intake person was just dead wrong. So, you know, sometimes you’ve just gotta stick to your guns and you’re going to get feedback from the person who’s doing the intake that could just be wrong, but it could be very helpful. You don’t have a way of knowing. I think if it’s a matter of, “Do you file the charge or not? Go ahead and file the charge.” You know, like you said, Winthrop, you know, if they’re trying to help you a way to make it more succinct, that’s probably good advice, but just, you know, for folks to be aware of, you can have a not very good intake person. You can have a not very good investigator. It happens. Well, I don’t have any other… Any other thing that you think we have not covered that would be good for folks to know about, you know, filing a charge or what happens after they file a charge?
Winthrop: One thing that they should know is that oftentimes, they’ll get asked for more information. So one of the things that does happen is after you file a charge, it will go to the employer. And oftentimes, their response is very… Like so the employer’s response is going to be… If they’re taking it seriously, it’s going to be written by a lawyer. It’s gonna have exhibits. It’s gonna be 5 to 10 to 20 pages of substance to it. And they’re going to be dissecting your entire career at this employer. So and then the investigator is going to look at that, you know, and read over it and look at it. And depending on like the quality of the person, whatever, but either way, they’re going to be sending you follow-ups. So they’re going to be saying, “Here’s what your employer has told us. Can you in some way rebut this?”
And likewise, it is something that is done by investigators on the other end. If they feel that there is an area where the employer has not adequately responded to the charge that the employee has presented, and they’re going to be sending questions, specific questions, almost like what we call interrogatories in legal practice, to the employer saying, “Answer these questions. And let us know. Like break it down for us on how this works. And what is your response to this specific statement? And what is your policy on this issue?” So there is some investigation that goes on. There could be huge gaps of time in between each step that you see presented to you where you need to take action. And that’s because like if they’re not working a new case or they’re waiting for a response from the employer. So respond to those fully and just as in-depth as you can, when you get them. That’s not the time to be as succinct. You want to make sure you cover all your bases.
Tom: Now, as somebody who’s filed a charge, do I get to see what the employer has submitted?
Winthrop: Like you’ve mentioned, you can ask to see it. I’m not quite sure what the policy is. It was always a little bit murky when we were there. We were always able to tell them what the employer had said. We were told not to send them the document, but we could always… Weirdly enough, if they were to call us on the phone and they’d say, “What did the employer say on this issue, we could read off what the employer has said to them,” but it was not the case that we could give them the document.
Tom: Yeah. I think that’s pretty common practice now. It’s a little infuriating that you don’t get to see what the employer has submitted. Yeah, the EEOC can… Often what they will do is give you a summary either over the phone and often, you know, a written letter. When they are asking for follow-up, you know, they’ll say, “Your employer said this, that, and the other,” but you don’t, as the person who files the charge don’t get to see what the employer has submitted. However, once your file is closed, if you FOIA it, then you get to see it. And that’s one good reason to FOIA it after you… especially if you’re going to court, is you get to see the employer’s submission and what they said.
That is generally inadmissible in court, as is your submission at the EEOC. So know that, but it can be helpful. You know, usually the employer lays their cards on the ground. And even if it’s not admissible in court, it’s helpful for you to know, you know, kinda what their playbook is. Another one thing I wanted to ask you about, so did you ever run across a situation where somebody filed a charge and asked for a right to sue before the investigation was complete?
Tom: Tell me how that works.
Winthrop: So it wasn’t my call, obviously, whether to give them the right to or not, but it is something you request. There is a time limit. I think it’s 90 days. I’m not sure on that. And you can correct me if I’m wrong, that the EEOC likes to keep it before they issue that right to sue, but yes. And this was very common when the person was represented and they just wanted to get out of the EEOC process. They didn’t think it was gonna be valuable to them. And they wanted to go straight to the courthouse, but yes, that is something you can do. And like I said, I’m not remembering the exact timelines on it right now, but you can request a notice of right to sue. Just get your charge out of the EEOC. And they’re usually fine with it. It’s one of the last thing that they’ve got to have a responsibility for.
Tom: Yeah. I think it’s 180 days.
Winthrop: One hundred eighty days. That’s what it is, yes. Yes.
Tom: You give them 180 days to respond. And then you can request your right to sue. And you’re right. The tactical reason for that is you don’t want to let the case… I mean, if you’re like, “You know, I’m going to Federal court no matter what because I’m pretty sure I’m gonna be in that level two category. And I’m eventually gonna get a right to sue anyway. I’d rather go as soon as I can, rather than wait.” You know, like you said, I mean, it’s not uncommon. We’ve seen cases take years before the EEOC resolves it. And, of course, you know, during that time, people move. They die. Their witnesses, having the paperwork. I mean, so.
Winthrop: And memories go.
Tom: Memories go. So your case only gets weaker the longer that you let it languish. Now, there may be good tactical reasons for letting it go because the EEOC process, getting remediation being one of them, you know, if it looks like you’re gonna be one of those cases that the EEOC takes, again, one of the very few, then it’s probably worth hanging on for that. And you might get some indications early on, but there are situations where you can, before the investigation is completed, and unless you’re in one of those level three categories, you’re gonna get kicked out early anyway, it’s not gonna happen within 180 days, but at the end of the 180 days, you can ask for a right to sue.
Courts are a little bit funny about if you ask for a right to sue beforehand, I know that there have been instances where people have asked for the right to sue before the 180 days. And the EEOC has provided that. Not any cases that we have handled, but I’ve seen some opinions where courts have said, “It’s a jurisdictional matter of the court.” Like the Federal court has said, “I cannot hear this because it has not gone through the entire investigative process at the EEOC.” I assume at that point you can go back to the EEOC because it’s their screwup. And it’s, you know, it’s basically touching the base. And you get your right to sue, but the safer bet is to at least wait the 180 days.
And then, right, you’ve gotta, you know, write your letter, and call them up and ask for your right to sue. Oddly, it can take them a while from what I’ve seen. Just they’re so busy, they can’t even clean cases off their desk by issuing a right to sue, but there’s no magic formula. You just call them up or better send a letter and say, “You know, I’m requesting my right to sue.” And they’ll provide it to you. And the reason to do that, of course, is because you can’t… By law, you cannot go to Federal court until you’ve gotten your right to sue. So that’s the reason that you do it. All right. Well, this has been very helpful. Any other things to tie up before…?
Winthrop: I don’t think so. I think we’ve covered a lot of the good bases. Thank you for bringing me on.
Tom: Yeah. No, I appreciate your help. And I… You know, folks can always, you know, go to our website, which is spigglelaw.wpengine.com. We’ve got a lot of good resources there and videos like this, but we’ve got a case assessment calculator where you can go, and for free, enter your information and get an indication of what your case might be worth financially, if you file one. So I invite people to check that out. And thanks again. And we will sign off.
Winthrop: Okay. Thank you.
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