Racial Discrimination Written Argument to Review Board
Below is the full text of my written argument to CUIAB, California Unemployment Insurance Appeals Board. Supporting documents will be added later.Address Removed
August 27, 2003
CUIABPO Box 944275
Sacramento, CA 94244-2750
Re: AB Case No: Removed
Below is my written argument. Because of time limitation arguments are not as complete or polished as I would have liked them to be but the crux of the arguments is present. Moreover, couldn't go through the evidence thoroughly especially the taped one. Have relied on memory and small discrepancies in details could be present.
Have divided up the arguments into the following categories:
1. Regular Employee vs. Subcontractor2. Wage Discrimination
3. Lack of Written Contract
4. Meeting
5. My Self-addressed Email
6. My Resignation
Attempt is to show a pattern of race and national origin discrimination against me as compared to treatment of my (White) Caucasian American male colleague, Thomas Emerson.
Regular Employee vs. Subcontractor
I joined the company around last week of June 2001 as a subcontractor. I continued as a subcontractor for over 2 months. I was made into a regular employee for one month - for the month of September 2001. After that, beginning October 1, I was made into a subcontractor again and I remained in that status till the end of my employment with the company. During the subcontractor status I didn't have standard benefits like medical that the regular employees seemed to have. In fact, I was the only "subcontractor" working like a regular employee or more.My claim:
The company intentionally discriminated against me regarding this matter - twice, as compared to employment terms of my colleague in the Data Modeling Group - Thomas Emerson, a White Caucasian male, who, most likely was a regular employee [Exhibit No: 13 page 1] when I was made a subcontractor against my will. First time the intentional discrimination by the company happened when they offered me the job as a subcontractor and second time, when the company had a special meeting with the purported reason to discuss some problems with my behavior, but as I will show later, by using analysis that a person of average intelligence can understand, it seemed to have been conducted with the main purpose of intimidating me into giving back my newly-acquired regular employee status by using deliberately false and serious accusations against me.Reasoning:
I responded to the company's job ad [Exhibit No: 14 page 1] that was for a regular employee. My employment background [Exhibit No: 14 pages 7-8] shows that all my previous jobs had been in regular employee capacity. On a minor note, my email [Exhibit No: 14 page 3] to Sumer Johal, the company's Chief Technology officer (CTO), before the job offer, does not show any request for subcontract job. On two supporting notes - a) my salary of $1000/week [Exhibit No: 17 page 2] that was exceptionally low for a skilled and experienced professional like me (more on wage discrimination follows) shows that the company had the upper hand in wage negotiations and had no scruples in exploiting me and making me a subcontractor and not providing me any benefits saved it more money and b) the desperate manner in which the company held the September-end meeting with me with the result of snatching away my newly-acquired regular employee status and making me a subcontractor again - shows that the company had strong interest in my becoming and remaining a subcontractor and the giving me a regular employee status was perhaps an aberration - a mistake by Sumer Johal that had to be corrected by him and the company's CEO Jeffrey Klein, as soon as possible.The September-end meeting was held and the company had one major seemingly trouble with my employment. Its letter [Exhibit No: 18 page 1] asking me to attend the meeting specifically refers to my absence three times a week, from 9 AM to 10:20 AM [Exhibit No: 18 page 2 my email], to attend the classes at UC Berkeley, affecting its business since ad hoc group meetings could not be held. My witness, JUST A WITNESS, and I have held that Thomas Emerson came late to work and frequently didn't show up for work, which means it was him and not me that caused the problem of not being able to hold ad hoc meetings. I will discuss this more later but while the company used this to force me into a subcontractor status again, the interesting part is that the company didn't force me into dropping those offending course that was causing this "problem." I continued with the course [Exhibit No: 16 page 5] which means that after the meeting I was away from work three times a week - from 9 AM to 10:20 AM to attend the classes, same as before that meeting, thus continuing "uncertainty" about my presence at the company but there is no record of company being bothered about it after that meeting. Only tangible thing that happened because of that meeting was that my contract was brought back to that of a subcontractor. If the company was bothered about "uncertainty" about my presence it would have forced me to drop that course, and would have left my contract unchanged since it had nothing to do with that "uncertainty."
Moreover, it is a commonly known fact that many unscrupulous employees try to cheat IRS and other government agencies by falsely classifying employees into subcontractor status even though for all the practical purposes they are like regular employee. On the other hand, an employee like I, has no motive to ask for a subcontractor status thus foregoing important benefits like medical and career path and status.
Wage Discrimination
I started working full-time for the company at $1000 per week without any standard benefits like medical. During the month of September 2001, it was changed to $62,500 per year plus tuition reimbursement of $1250 per six months plus other benefits regular staff were entitled to. Starting October 1, 2001 I was made a subcontractor with wages of $1400 per week without any of the standard benefits. This continued till the end of my employment with the company.My claim:
A reasonable person in my situation would have felt discriminated regarding wages compared to that of my colleague Thomas Emerson, a White Caucasian male, even without knowing his wages.Reasoning:
The job ad [Exhibit No: 14 page 1] mentioned that it was "a senior level position" (line 3) and the required qualifications were very strong foundations in mathematics and statistics (line 1), preferred graduate degree, 3-5 years of experience in a sophisticated and specialized statistical programming language S-PLUS, 1-2 years in software development and 1-3 years in database programming. (Second to bottom paragraph) I had all it all and then some more [Exhibit No: 14 pages 7-8].Given these requirements, anybody who has lived in the high-cost East Bay area, knows that $1000 per week, or $52,000 per year without any benefits was low for an experienced professional in highly specialized technical field like the one I was working on. In fact, it was low even for a fresh graduate in a technical field. The company did not provide Thomas Emerson's salary, even though from its knowledge of my prior complaint to the state/federal agency, it was aware that comparison with his salary would be made. I guess, it does not want to be cooperative. However, the knowledge of how much Thomas Emerson made is not important since my leaving the company is based on my perceived discrimination, and based on my low salary and based on absence of any evidence that Thomas Emerson was paid similarly low, I perceived to be wage discriminated.
Moreover, perception of wage fairness depends on equal work equal pay concept. My witness testified and I agree that Thomas Emerson was hardly working and his job quality was of extremely poor quality, Company's actions support this contention. While my absence for short durations were noticed, and my going on personal errand to get my car registrations done was not only noticed but was considered serious enough to make it a part of a very special meeting [Exhibit No: 18 page 1], Thomas Emerson's absences were not noticed, as Jeffery Klein testified. Moreover, when I asked Jeffrey Klein specifically whether he fired Thomas Emerson and others on Monday morning following my "surprise" resignation on Friday night, his answer became vague, thus leading one to conclude that most likely that event took place since that event is easy to verify. Given this evidence, since Jeffrey Klein testified that if I didn't resign I would have been allowed to continue on my job, it is reasonable to conclude that my work was more important to the company than that of Thomas Emerson. Also, the company accepted in its letter asking me for the meeting in late September that it was pleased with the quality of my work. Given all these, I will claim that even if Thomas Emerson, were to be paid equal or somewhat lower than I was, I would have been justifiably felt wage discriminated.
A normal assumption is that all employees are getting close to some sort of fair wages, within some range. While wide discrepancies happen in very high salaried jobs, at the salary levels of what I was getting, the standard deviations are quite low. If one is getting wages much lower than that band, a wage discrimination assumption is justified even without knowing others' wages.
Lack of Written Contract
A few weeks after starting to work for the company, I sent an email [Exhibit No: 17 page 1] to Jeffrey Klein to give me in writing terms of my employment including hourly wages. No written terms of employment was ever provided to me.Claim:
My assumption is that Thomas Emerson, my Caucasian male colleague, had a written contract, which is standard in industry for professional jobs like ours. By not provided me with a written contract within a reasonable period of when I started working for the company, and then not providing me with a written contract when I specifically asked the company for one, and then not providing me with one when I was temporarily made a regular employee starting September 1, 2001, and then not providing me with one when I was made a subcontractor again beginning October 1, 2001 - all in my view are intentional acts of discrimination against me in employment terms.Reasoning:
Since hourly rate and nature f duties are arguably the most significant part of most employment contract for subcontractors, my asking for them essentially was equivalent to asking for a contract, even though Judge Tomlin might think otherwise. Moreover, sending an email asking for written terms of employment was perhaps the strongest request I could have made. It meant business but the request was denied.Another interesting fact about this email is that instead of its recipient being Sumer Johal, the CTO, who was my immediate supervisor and who dealt directly with the hiring process, it was Jeffrey Klein. It indicates that I had problems with Sumer Johal and the terms of my employment and needed clarification and Jeffrey Klein's intervention. That too was denied.
Meeting
A special meeting was held on September 25 2001 on order of the company. Jeffery Klein, Sumer Johal and I were present. Several serious charges were made including comments about my skills, overcharging the company, going away for personal errands, and not being present in the office all the time. Soon after I was made into a subcontractor starting October 1.Claim:
The email [Exhibit No: 18 page 1] asking me to attend the meeting is a very revealing document and tells a lot about the company's mistreatment of me. It is extremely unlikely that the company would have made the charges similar to ones it made against me, to any White Caucasians. All charges made against me at the meting were deliberate and false. In my view the goal of the company was to intimidate me into giving up my regular employee status and force me into the same old discriminatory status of subcontractor. Moreover, while reprimanding me falsely for going out on errand without informing and causing disruption to business by being away for classes, it committed discrimination against me because it failed to do so for Thomas Emerson who was the main reason for business disruptions.Reasoning:
A cursory reading of the email asking me to attend the meeting shows it to be very insulting. It is full of degrading accusations, that I will show were false, plus some small cheating in numbers - $1250 to be agreed upon reimbursement amount became $1200 and company-stated my hours away from work to attend classes included the lunch break hours. On second thought maybe not, since I was working during lunch breaks and the company used to assign me work during those hours perhaps thinking lunch breaks were my working hours while my colleague Thomas Emerson went on his 3-4 hour-long lunch breaks.Let us look at the charges more closely:
1. The company expressed the view [Exhibit No: 18 page 1 point 1] that the fact that I was taking classes indicated that somehow I needed that training to do my work ("even as when we hired you, I was not aware that you would need to take any classes for the work that we needed you to do..."). Later in the email it contradicted itself by stating that my work was meeting its expectation ("...your effort and work towards the modeling team has been matching my expectations..."). Moreover, my resume [Exhibit No: 14 pages 7-8] and my witness' testimony indicate that I was very well qualified for my job. My witness further testified that my White Caucasian male colleague, Thomas Emerson's work was very poor quality and his Ph.D. was in pure mathematics and was not much applicable to the work done at the company. Thomas Emerson was not attending any classes.
2. The company stated that it was "not looking to hire someone who we needed to pay to train." [Exhibit No: 18 point 1, line 8] Again, the company contradicted itself by indicating that the money it had agreed to pay to me was just a return of money it had deducted from my salary for that purpose. [Exhibit No: 18 point 1]
At this moment I will point out that Nancy Friedberg, the company's representative read the relevant segment of company's email (point 1) slowly seemingly to impress on the judge that somehow the company's charges were true. (The judge looked impressed though as he was on several occasions.) I will argue that this was a diversion tactic by the company to draw attention from the next serious charge since any reasonable person could have seen that the point number 1 in the company's email asking me for the meeting was simply incorrect.
3. The company accused that it had agreed to pay $1200 but I somehow cheated on that and asked it to pay slightly below $1500 for my tuition. I have pointed out in my letter to the company in November 2002 that I took two courses - each costing $600 and therefore the amount for tuition I had asked for was exactly the company claimed it had agreed for. (Actually it had agreed for about $1250 but it is not important here.) I have submitted the information for one course and it directly shows $600 as tuition. [Exhibit No: 16 page 5, line 3 rightmost]
Question arises now is whether the company could have made mistake about the tuition amount, and if so, is having a special meeting in order to reprimand a person for submitting invoice for reimbursement is a normal procedure?
Without doing into details I would claim that it is almost impossible to make such mistakes and in the rare case where mistake has been made, there are various actions companies would follow - for example talking informally about it or telling gently that it will pay the agreed upon amount only. It is almost unheard of any company holding a meeting to reprimand one for submitting an invoice that is slightly over what it was expected.
Jeffrey Klein, who didn't seem very observant or seemed to suffer memory lapses when it came to important matter like Thomas Emerson's working hours or firing of Thomas Emerson the Monday morning after I left, that others would have remembered very well, suddenly appeared to remember, with a firm voice, and with almost certainty that I had taken 3 courses. (He sounded so sincere that for a moment even I was almost taken in.) There is no reason to believe that Jeffrey Klein and the current management of the company have not exchanged notes - my letter to the company, my website all mention 2 courses - since both have common interest in this case. That means he was most likely aware of the fact that I have mentioned taking 2 courses only and that is fact. Moreover, Jeffrey Klein was the CEO, had probably many meetings during his term and suddenly his memory is very clear about something from that one meeting. Truly remarkable! Could it be, that among many motives, this apparently planted memory is designed to somehow portray that he was honestly mistaken about my tuition thus mitigating the seriousness of the company's charges and draw attention away from the real motive for that meeting - to make me a subcontractor again by using deliberate lies?
4. The company mentioned that in spite of its "firm email" [Exhibit No: 18, point, line 1] about going to errands without informing others I had gone to DMV. I have made it clear in my letter to the company that I did inform Thomas Emerson. As my witness, JUST A WITNESS testified that I was working at least 40 hours a week, does not it look out of character for me to go for a personal errand without informing others. On the other hand, my witness testified that Thomas Emerson frequently didn't show up for work. It won't be difficult to guess now about towards whom that "firm email" of the company was geared towards and as the company's witness, Jeffrey Klein, testified, one who never got reprimanded for his hours.
5. The topic of my taking classes causing "uncertainty" (paragraph after point 3) about my presence at the company has been covered in detail in my previous letter dated June 30, 2002 and does not need repeating. It is quite clear that this stated reason could not be the cause of concern for the company. Especially so, if one considers the [Exhibit No: 16 page 8, first paragraph] letter published in salon.com in which a reader who interned at the previous workplace of Jeffrey Klein - Mother Jones magazine - where Jeffrey Klein was the editor in chief, which mentions that "...I was always somewhat perplexed by the absence of many of the editors and other staffers, who seemed to use the lull in the bi-monthly schedule to sleep in or take off."
Now we are left with various stated reasons - causes of apparent concern for the company with some serious charges - some probably defamatory - and most likely was not done to any White Caucasian at the company and not certainly Thomas Emerson - and all appear to be false. Only thing I can conclude that this was just to intimidate me into giving up my regular employee status.
My Self-addressed Email
Just prior to the meeting, I sent an email [Exhibit No: 16 page 7 or 4] to my personal email address that I could access outside the company.Claim:
Since the text of this email was composed in a short period under stress and was response to the company's email, it is a very good indicator of what I really felt about the charges and the general working environment at the company - same facts about some employees not working hard while I was working hard and was wage-exploited.Reasoning:
This meeting took place only a few days after the September 11 incident. It is no secret this led to speculation about it leading the USA economy into deeper recession and economic uncertainty. Also rumors about hate crimes against certain segments of the American society committed by "patriots" were floating around. In this environment I get an email from the company with allegations that I knew to be untrue. My White Caucasian male colleague apparently didn't get such an email even though it was he who should have gotten an email like this. It was reasonable to conclude that perhaps the company was trying to lay me off under some false pretext. Low opinion about the company's management was formed just after I joined the company when I saw some of the employees of a certain race and ethnicity slacking off and when I received my pay check that was a fraction of fair wages. As I testified that when later I started getting serious chest pains I could not afford to go to the doctor because I was still paying off credit card bills, which means at the time of this meeting I had financial worries and even though I didn't have high opinion about the company, I didn't want to lose the job. The fact that I sent this email to an outside address, an act that most will not consider of doing under normal everyday business dealing shows that I considered this incident to be extraordinary. I thought that there was a possibility that the company will fire me during meeting using its unscrupulous business practice of making false statements and accusations - and I won't be allowed to access my computer again for the fear that I would try to damage some company-related files in retaliation. This type of not allowing the fired or laid-off employees is a precautionary action taken by many companies. Therefore, this email was written under pressure and where my real feelings about the work were revealed.If you examine the email, you will find that it contains exactly the same information what I have been alleging about the company. This means all allegations about the company are not some sort of after-thought after I left the company but existed long time ago before I quit the company but because of economic pressure had to suffer the discrimination at the company.
My Resignation
On March 1, 2002 evening, after everyone had gone home for the weekend, I packed my stuff and emailed my resignation [Exhibit No: 12?] to the company.Claim:
The parting was not amicable and given my financial situation it was "involuntary."Reasoning:
The fact that I quit without giving any warning to the management, even though there was no urgency, shows that the parting was not amicable. It was designed to surprise the company and affect its operations. Jeffrey Klein admitted that it came as a surprise and from lack of his definite "no" to my question whether he fired Thomas Emerson and others the Monday morning following my resignation, an easily verifiable event, it can be deduced that he did indeed fire Thomas Emerson and others thus closing down the Data Modeling Group. My resignation seemed to have the desired (from my perspective) effect on the company.In any such "surprise" parting there is a danger of company taking retaliatory action. An employee is vulnerable to charges of damage to the company property or stealing away company's secrets or whatever, brought on by employers who want to get back at the employee who showed them the finger. A few months ago, the management of the company had made many serious, all false charges against me in a formal meeting, just to strip me of my regular employee status. This management is capable to doing almost anything and therefore I had to be "nice" to minimize the chances of such happening. Moreover, there was the issue of the money the company owed me - even though I thought there was low probability of getting that, by writing a resignation letter where I revealed what I really thought of them - I would have reduced that chance to zero.
I had a few subtle parting shots though. I mentioned the "bleeding-edge methodologies." It was in its job ad [Exhibit No: 14 page 1, line 5] I had applied to. My resignation letter, my website and my email to four "advisors" makes it clear that what I thought of the company, its claims and truthfulness of its management. My talking about academic job was to hint at the low wages the company paid to me. People expect private sector to pay better than academia, and here I was paid $1000 starting for 60 hours of work!
What about the timing? The question should not be 'Why you left the company?' but rather it should be 'Why didn't you leave this racist company, given such horrid experiences you were subjected to, much earlier?' and the answer is 'I needed the money.' I counted my days. Paid off my credit card bills, and it was time to leave and not suffer this racist and demeaning environment.
The time I left - the economy was in bad shape and job prospects were poor, I had just paid off my credit cards means savings were non-existent, had severe chest pains, had no job or even had applied for job or school. If you were in my situation, you would have left this company too.
Thanks.
Sincerely,
[name]
Copy: Xamplify Inc