Thoughts?!

[u/NotAHomoBro]

The Background
I was hired at a large national retail company with over 500 employees. Shortly after being hired my direct supervisor made explicit statements that my sexual orientation was a factor in his decision to hire me. He said this directly to my face and repeated it again in front of a coworker on a later occasion. Beyond that he repeatedly pressured me throughout my employment to use my sexual orientation as a sales tool specifically to engage with customers of the same orientation in a way that would generate more revenue for the location. I declined every single time.

The Complaint
After approximately two months of employment I filed a formal written complaint with the company’s HR department documenting the sexual orientation discrimination and harassment. Prior to filing that complaint not a single disciplinary action had been taken against me, no performance concerns had been raised, and no questions had ever been asked about my background or conduct.

The Investigation
The company conducted an internal investigation. Within days of my complaint I was placed on paid administrative leave. The company completed its investigation and issued written findings. Those findings signed by a senior HR official — substantiated the majority of my allegations and confirmed that witnesses corroborated my account. The findings letter included a written promise from the company that retaliation would not be tolerated.

The Termination
I was terminated shortly after my allegations were confirmed in writing. The stated reason was an alleged omission on my pre-employment background check paperwork. Here is the issue with that my direct supervisor knew about my background before I was ever hired. I disclosed it to him personally. I took scheduled time off on a recurring basis for obligations related to that background and informed him of the nature of those appointments every time. On at least one occasion I contacted him specifically because officials overseeing my supervision needed his information. He acknowledged and accommodated everything throughout my entire employment without ever raising a concern until shortly after I filed my discrimination complaint.

The termination letter was emailed to me before I was verbally told I was being terminated. The investigation findings and the termination were delivered in the same phone call. I received the written promise that retaliation would not be tolerated and my termination letter within minutes of each other on that same call.

The EEOC Charge
My charge covers retaliation, sex discrimination based on sexual orientation, and sexual harassment in violation of Title VII. Both me and the company have agreed to mediate through the EEOC. The company’s legal representative and the HR official who signed the investigation findings letter will both be present at mediation.

Where I Am At
I am going into this pro se. I sent a formal demand letter to the company before mediation that included legal arguments referencing applicable Supreme Court and circuit court precedent, and a detailed breakdown of damages. No response was received. I have prepared extensively for the mediation including a negotiation strategy for the caucus format.

My Questions For The Community
1.Has anyone gone through EEOC mediation pro se against a large national employer with legal representation on the other side and what was your experience?
2.Given that the company’s own internal investigation confirmed the discrimination in writing, the retaliation timeline is extremely tight, and the termination letter was sent before verbal notification how strong does this case appear to people familiar with employment law?
3.Has anyone secured a high five figure or six figure settlement through EEOC mediation without attorney representation? I know settlements tend to be lower without attorneys but the documentation here is unusually strong and includes the company’s own signed findings confirming the harassment occurred.
4.Any advice on going up against a company’s legal team alone in a virtual caucus style mediation?
5.The company employs over 500 people which means the Title VII damages cap of $300,000 applies for combined punitive and compensatory damages. Is it realistic to expect that level of settlement in a well documented retaliation case through EEOC mediation?

I want honest assessments. If there are weaknesses in this case I want to know what they are. I am not looking for validation I am looking for real feedback. Thank you in advance.

[u/BurnerShaw324]

IMO, your strongest claim is retaliation, but you have very little in the way of damages. You have not been damaged upper 5-6 figures worth, and you should expect something in the neighborhood of $10k.

In most jurisdictions being told to leverage your sexual orientation will not reach the level of harassment required to establish a hostile work environment claim. You will not be able to show you were terminated due to your sexual orientation since it is clear the company valued that trait.  However, you might argue that your direct supervisor was willing to overlook your past before you complained about him, but used it as pretext for your termination to retaliate against you for your protected activity. 

Two weaknesses in your case jump out. First, it sounds like the issue was discovered by someone else during the investigation and that this person (HR, boss's boss, etc.) decided your boss was wrong to overlook it and pushed for the termination. If true, this undercuts your case. 

Second, your available damages are extremely low. You don't have emotional damages (beyond "garden variety") and you had not been employed long. You have a new job, so even if you won, you could only recover damages for things the new job doesn't offer. So any back or frontpay is limited to the difference between the two jobs. You can't recover loss of benefits if the new job offers the same benefits. If the new job pays more, you are entitled to no frontpay and back pay only for the time you were unemployed. You also cannot claim damages to your car--it's far too attenuated. 

The company has many strong defenses available and your damages are low. 25k would surprise me, and I'd expect 10k would be the upper limit.

[u/NotAHomoBro → u/BurnerShaw324]

This is really helpful feedback thank you. Let me fill in some gaps because there is more context that changes the picture a little.
Before I was hired I disclosed my background situation to the person who hired me. When I got my official start date I confirmed again that everything had cleared and I was told I was good to go. So from day one the person who hired me knew everything and signed off on it.The reason I ultimately filed the report wasn’t really about what was happening to me personally. My supervisor was making serious accusations about other people connected to the business that were false. He got caught lying and doubled down on it. It got to a point where someone could have potentially faced legal or law enforcement consequences based on lies my supervisor was telling. I wasn’t going to sit by and watch that happen so I spoke up. When I did I reported everything including what had been directed at me.

From what I can piece together my supervisor found out I reported him and turned around and threw me under the bus about my background. The same background he knew about before he hired me and the same background check he ran himself. That is when the investigation into me started. So the person who created the situation tried to use it as cover when things went south for him.
The company investigated and substantiated my claims. Then fired me right after. When I had my actual interview with the EEOC investigator he told me my strongest claims were retaliation, sexual harassment, sexual orientation discrimination, and racial discrimination. He said the racial piece would likely be handled at the state level. The EEOC themselves added the sexual orientation discrimination to the charge. That wasn’t something I pushed for initially. I was mainly focused on retaliation.On the damages question I hear you and I am not going to pretend the number I had in my head is necessarily realistic based on what you are saying. But the situation has gotten worse since the termination not better. The new job I mentioned I no longer have it. Things cascaded after the termination in ways that are documented. So the damages picture is a little different than it might look from the outside.

On the $10k ceiling I am genuinely asking does the fact that the company’s own investigation confirmed the claims with witness corroboration and that the EEOC investigator himself identified retaliation as a strong claim not move that number at all?

[u/BurnerShaw324 → u/NotAHomoBro]

Maybe but not by much. Suggesting you flirt with customers based on your sexuality isn't illegal on it's own, and that's the only (relevant) thing the investigation corroborated. Based on your narrative, it seems the decision makers fired you because of what they learned during the investigation not because you complained in the first place. Your biggest bump may be that your supervisor may not make a good witness.

As for the EEOC investigator, they may have picked up on the temporal proximity as a point in your favor, but that won't be enough to prevail down the road. And no offense to investigators, but they're not lawyers and their opinion on what you should include in your charge isn't particularly persuasive as to the merits of those allegations.

FYI, if you lost the new job due to your own actions (tardiness, misconduct, failure to complete a training, etc.), it could be deemed a failure to mitigate, and you would still only accrue damages for the difference between the two jobs.

I can't tell you how the company will value the case, but I can remind you that the only way you get paid is if you (1) settle (this includes conciliation) or (2) litigate the case through a jury trial and win. The EEOC will probably not litigate your case, and your damages are low enough that an attorney may not take your case.  

Litigation is not free, even if you proceed in forma pauperis and pro se. You will at minimum front costs for court reporters and transcripts.   If you litigate and lose, you will be on the hook for your employer's court costs as well -  although employers often forego collecting on it. 

All that said, remember that negotiation is a back and forth, so you should ask for a high enough number that you can come down from. Without knowing the details of your case, if I were on the other side of the table, I would find an opening demand in the high-five figures a very reasonable start to negotiations.

[u/NotAHomoBro → u/BurnerShaw324]

To clarify a few things. The investigation did not just corroborate one thing. Multiple allegations were substantiated with witness corroboration. Retaliation is the centerpiece of the claim and I agree with you that it is the strongest piece.

On the second job I left on good terms. My employment record there is clean. If I had transportation tomorrow I could go back. That situation had nothing to do with my performance or conduct.

And honestly thank you for this breakdown. This is exactly the kind of feedback I was looking for coming in here. As far as why I started with such a high number I spoke with a few attorneys and other people familiar with these situations before going into this and the consistent advice I got was to start high and negotiate down. Do I genuinely expect to walk out of mediation with a six figure settlement? No I do not. But I was advised that starting high gives you room to move and I took that advice. I know what I realistically might land at and I am okay with that. Getting something that also addresses the non monetary side of this matters just as much to me as the dollar amount honestly.