Project Fourteen

Issue: I just got fired from my job at a company that I've been with for 13 years. I had been considered a good employee. The problems began when I was promoted and moved to a smaller satellite office. One of my male co-employees began harassing me and I filed a sexual harassment complaint. I also noticed that there were inconsistencies in the application of policies and procedures between the main facility and the satellite office. My new supervisor did not agree with me. The company's excuse for firing me was that I was insubordinate and was not performing at an acceptable level. My claim for unemployment was denied. I suspect that I was fired because of the sexual harassment complaint and the tension between my supervisors and me. What should I do?

In this case, Northeast HR for Hire was asked to represent an individual at her Department of Labor appeal hearing for the denial of unemployment benefits based on misconduct. As with most termination cases in which an employee has lodged a complaint, there was also the potential for further legal action on the part of the client. Northeast HR for Hire's role was twofold: first, to represent the client at the appeal hearing to restore unemployment benefits; and second, to help the client assess the legal merits of the case before making a determination as to how to proceed.

This is the case of an outstanding employee who had thirteen years of experience with a Fortune 500 manufacturing company. The employee received written performance appraisals, bonus payments and promotions throughout her exemplary career.

From 1988 to 1999 the employee worked in a particular facility and had a stellar record of accomplishment both as a worker and as a participant in the employment community. She received customary annual compensation raises for her performance. She also served as a president of the charitable division of the company and assisted the company in supporting various charitable institutions.

In mid 1999, the client received a promotion and began working in a small manufacturing facility established as a satellite office of the main organization. Right from the beginning the client noticed a difference in the way this smaller operation was run. However, being the only female in the office, she remained quiet for the next four months. In late 1999, she complained to her supervisor about the behavior of a peer and its potential negative impact on her work environment. A month later, she made an official complaint when the behavior continued.

In April 2001, the client was promoted to an exempt position and hired a female subordinate. At that same time she was told of a change in reporting responsibilities, which required her to report to a co-worker who was a friend and her peer. She had gone to him to lodge the original complaint against the harassing employee. Because her new supervisor had been a close friend, the new reporting arrangement strained their relationship and both she and the supervisor displayed poor behavior towards each other.

Between April and September, the client noticed a number of inconsistent applications of policies and procedures including problems with attendance and safety shoe policies. The policies covering these issues were in effect and consistently applied for a long time at the larger main facility but not consistently enforced at the smaller facility.

In early September the client's new supervisor approached her and told her she had to wear safety shoes while on the factory floor. Since this was a long standing policy and the supervisor had not enforced this or other policies she was confused as to whether he was serious about this policy. On September 20, 2001 a sign was posted outside the client's office prohibiting entrance onto the factory floor without safety shoes. That afternoon, the client was required to attend a meeting with her former and present supervisors and was told she could not return to work without safety shoes. That evening she went home and retrieved the safety shoes she wore at the main facility and returned to work with the shoes on.

Three days later, she was demoted and was told her behavior was insubordinate, that she lacked judgment and she was not performing at an acceptable level. She was also told that any further poor performance would result in termination. She was required under threat of termination to sign an agreement to these terms. The client signed the document. During this meeting the client again brought up additional instances whereby her fellow employee continued harassing her, creating a hostile work environment. The manager and the Human Resource representative told her that the issue was "not open for discussion".

Seventeen workdays later the client was terminated. When she asked for the reason she was told her immediate supervisor (who was not present at the termination meeting) didn't like the way she answered him the day before. On the prior day an exchange took place between the client and the supervisor regarding the availability of work orders. When he didn't receive the answer he wanted (although the answer given was a correct one), he stormed into his office and slammed the door.

• Did the employee know his or her actions were wrong?
• Did the employee know the consequences of his or her continued behavior?
• Was the employee given adequate time to change the objectionable behavior?
• Were there extenuating circumstances affecting the termination?
• Was the "triggering incident" grievous enough to warrant moving to the next step in the process (i.e., termination)?

• An inconsistent application of behavioral standards from one employee to another;
• An inconsistent enforcement of the safety shoe policy;
• Failure to notify anyone in writing that the safety shoe policy had changed and was now being enforced;
• The company's use of an inconsistently applied policy and behavioral standards as justification for the termination;
• Indicating that the employee was terminated due to insubordinate behavior for failing to comply with the safety shoe policy, when, once it was clear the policy would be enforced she immediately complied;
• Failure on the company's part to follow a published progressive discipline policy, especially in a behavioral issue involving an employee with thirteen years of service;
• Failure by the company to adhere to its own disciplinary procedures regarding the co-employee who was disciplined and demoted because of the sexual harassment complaint against him;
• Failure of the company to recognize the potential for this weak "termination with just cause" to become another sexual harassment complaint against the company for retaliation against a complaining employee;
• Failure by the company to provide evidence that the final exchange between the client and her supervisor was a demonstration of the previously unacceptable behavior.

Our consultant accompanied the client to the Unemployment Appeals hearing and assisted in the presentation of her case. No company representatives appeared to present their side of the case. The client only testified as to the last incident between her and the supervisor. When questioned by Northeast HR for Hire if she were aware during or after the exchange whether the supervisor was angry at her or at the fact that there were no orders, the client said she clearly didn't know.

In his opinion, the administrative law judge found that "the evidence does not establish that the claimant's October 15th conduct involving her supervisor amounted to disqualifying misconduct."

The initial determination by the Department of Labor was overturned and unemployment benefits restored.

Resolution:

This individual hired Northeast HR for Hire to resolve her unemployment denial as well as to assess possible legal action. Our consultant was able to assist her in presenting her case at the DOL appeal hearing and restore her unemployment benefits. In addition, our consultant reviewed the case and presented the client with several options regarding further legal action.