alleged pornography on computer desktop and changing reason

[CitizenX1]

What is the name of your state (only U.S. law)? California

I was recently terminated for Sexual Harassment and downloading pornography. That was the initial reason and of course I was denied Unemployment. The alleged pornographic picture was a picture I took in Mt. Carmel, UT of a commercial sign for a restaurant in a Best Western Hotel. You can see the picture here. I guarantee it is not pornographic. http://www.flickr.com/photos/donnjmck/5105581852/lightbox/

I appealed the denial of unemployment benefits and after I proved that it wasn't pornographic to the examiner, the company fell back on the fact that I misused company equipment making the picture my desktop picture. I rebutted that most people in the company have their own desktop pictures and pictures on screen savers and that I was being singled out. The supervisor is hated (I know that that is no defense in and of itself) but she has been waging a campaign against me which started soon after she was hired. My appeal was denied on the grounds that I had violated company policy by having a desktop picture. Using that standard, I was the least offensive employee in the department, if not the company as I only had the desktop picture and no screen saver pictures.

I had on my computer a document being written by me regarding her unfair and discriminatory treatment of me and I think they became aware of this document. The picture had been my desktop picture for 4 months. She had been by my desk as well as her assistant and never complained about it. I suspect she sent her assistant to my desk, to clear my default Windows screen saver to look at the picture. Of course he probably couldn't have seen it because I was logged out of the account after I had left from work for the day. I suspect they examined my computer and looked at my desktop to give them the excuse to terminate me.

Anyway the assistant complained so they fired me for Sexual Harassment and downloading pornography for the picture in question. Like I said, the examiner upheld the termination on the grounds that I violated company policy by adding a personal picture for the desktop image.

I did file a complaint with the EEOC and have a meeting on the 17th of this month. I am currently looking for a job without any income.

Does anyone have any thoughts on this or know of any legal cases affirming unequal treatment for terminations? Any advice or comments.

 

[commentator]

Nope, there's really not any. If you were denied unemployment, it is because your employer proved more strongly than you argued against it that you violated a company policy that you were aware of, that you chose to do it, and that you understood that you might be fired.

All this business about the employer mistreating you and harrassing you isn't going to be valid. I do not see where there is any EEOC related complaint here. You have to prove that the discimination occurred because you are a member of a protected class, and solely because of that reason. That you weren't treated fairly or that your employer didn't like you is not a valid EEOC complaint.

I worked for a long time for an entity that made everyone sign a statement each year that they understood that they weren't to use the computer system to do anything that was not job related. Of course, everyone did, to some extent. But if they wanted an excuse to fire you, the first thing they did was go through your computer and see if you'd been checking your personal emails or bank statements. Much less if you'd been looking at porn. And you were gone, and because you clearly understood it was against the rules, although they were not consistently enforced, you were out. Legally and with no unemployment benefits.

California is an "at will" state. This means that an employer can pretty much fire you at any time for any reason. You can't sue them or keep them from doing so except in very rare cases where EEOC is a factor.

Strive to get something else very quickly. Do not spend a lot of time discussing your former employment situation or how you happened to be treated so poorly and terminated. Stress the good experience you obtained in this position and move on. Good luck to you. I know it seems brutal, but you've run up against the actuality. Most people believe they have more rights than they do when it comes to the workplace. But they really don't.

 

[quincy]

CitizenX1, if the desktop photo is not pornographic (and I think I will take your word for it instead of checking out the link ), did your employer tell others that you downloaded pornography onto your work computer (specifically using the word pornography)?

I agree with commentator that the termination itself appears to be legal, but the reasons for the termination, if false, could potentially be seen as defamatory.

 

[CitizenX1]

yes, there was mention to at least one employee that I downloaded porn

CitizenX1, if the desktop photo is not pornographic (and I think I will take your word for it instead of checking out the link ), did your employer tell others that you downloaded pornography onto your work computer (specifically using the word pornography)?

I agree with commentator that the termination itself appears to be legal, but the reasons for the termination, if false, could potentially be seen as defamatory.

The assistant did tell another employee that I had been terminated for downloading porn. This was overheard by another employee. He also said I was always on drugs.

 

[xylene]

H0-made pies... (no it isn't porn or obscene...)

If you chose that vulgar image as your workplace desktop image in a place were "has been waging a campaign against me"...

Well, umm bluntly, you are a very foolish person.



Kittens or plain grey next time.

 

[swalsh411]

I think there has to be more than this. Having a single custom desktop image (and it's not even vulgar let alone pornographic) does not rise to the level of misconduct even if it violates policy.

 

[justalayman]

I think there has to be more than this. Having a single custom desktop image (and it's not even vulgar let alone pornographic) does not rise to the level of misconduct even if it violates policy.

it is misconduct because it violates company policy.


and yes, it is vulgar

Mirriam-Webster:

a : lacking in cultivation, perception, or taste : coarse
b : morally crude, undeveloped, or unregenerate : gross

 

[quincy]

I am not sure if there is a legal action here worth the time and expense of pursuing, CitizenX1, but I think you may wish to have the desktop photo, and the reasons your employer gave for your termination, reviewed by an attorney in your area, preferably one well-versed in defamation law.

To falsely claim that someone was terminated for downloading pornography onto a work computer, and then to share this falsehood with others in the workplace, could be enough to support a defamation suit, the caveat being that it would not be an inexpensive suit to pursue and there is never a guarantee of winning any lawsuit.

For a defamation action in California, you would need proof that a defamatory statement was communicated about you to at least one person other than yourself, and it was communicated without the due care that would be used by an average person of ordinary sensibilities, and that you suffered reputational injury as a result. Injury can be demonstrated through the loss of a job or other economic loss directly attributable to the statement, personal humiliation, mental anguish and suffering, and/or damage to the esteem or social standing in which one is held.

For slanderous statements, you would need a witness who could testify that what was communicated about you was, in fact, communicated.

Again, defamation actions are not inexpensive actions and they are not always successful actions and they can cause additional reputational injury just by the public nature of a court hearing. A defamation claim (or being involved in any legal action against a former employer) could also make it more difficult for you to find a new employer willing to hire you. That is why defamation actions are generally only pursued when the reputational injury is severe.

With all of that said, I think it might be worthwhile for you to seek an attorney's review. If your former employer is free with his words now, there is no guarantee he won't be free with his words later, should a prospective employer call him to ask about you.

 

[Willlyjo]

What is the name of your state (only U.S. law)? California

I was recently terminated for Sexual Harassment and downloading pornography. That was the initial reason and of course I was denied Unemployment. The alleged pornographic picture was a picture I took in Mt. Carmel, UT of a commercial sign for a restaurant in a Best Western Hotel. You can see the picture here. I guarantee it is not pornographic. http://www.flickr.com/photos/donnjmck/5105581852/lightbox/

I appealed the denial of unemployment benefits and after I proved that it wasn't pornographic to the examiner, the company fell back on the fact that I misused company equipment making the picture my desktop picture. I rebutted that most people in the company have their own desktop pictures and pictures on screen savers and that I was being singled out. The supervisor is hated (I know that that is no defense in and of itself) but she has been waging a campaign against me which started soon after she was hired. My appeal was denied on the grounds that I had violated company policy by having a desktop picture. Using that standard, I was the least offensive employee in the department, if not the company as I only had the desktop picture and no screen saver pictures.

I had on my computer a document being written by me regarding her unfair and discriminatory treatment of me and I think they became aware of this document. The picture had been my desktop picture for 4 months. She had been by my desk as well as her assistant and never complained about it. I suspect she sent her assistant to my desk, to clear my default Windows screen saver to look at the picture. Of course he probably couldn't have seen it because I was logged out of the account after I had left from work for the day. I suspect they examined my computer and looked at my desktop to give them the excuse to terminate me.

Anyway the assistant complained so they fired me for Sexual Harassment and downloading pornography for the picture in question. Like I said, the examiner upheld the termination on the grounds that I violated company policy by adding a personal picture for the desktop image.

I did file a complaint with the EEOC and have a meeting on the 17th of this month. I am currently looking for a job without any income.

Does anyone have any thoughts on this or know of any legal cases affirming unequal treatment for terminations? Any advice or comments.

It's a pretty sad day when a judicial body such as that of an appellant entity would deny your appeal for UI benefits based on their / his total bias and spontaneous discourse for your situation. It seems that there is so much corruption regarding decisions these days. I know of one incredible decision where a particular judge didn't even spell the Defendant's name properly along with nothing but guessing and conjecture to arrive at a horrible decision.

I greatly sympathize with you, however, if you can get a job and work for at least a couple months, when you finish such job, you can apply and recieve UI benefits based on your payment history with this current, former employer! There are lots of Agencies that put you to work for a particular period of time and then once a temporary job is finished, they let you go, thus enabling you to successfully get the types of UI benefits your were wrongfully denied. It goes without saying that if such Agency gets you a very good and rewarding job and they hire you, then of course--take it!

 

[Willlyjo]

I am not sure if there is a legal action here worth the time and expense of pursuing, CitizenX1, but I think you may wish to have the desktop photo, and the reasons your employer gave for your termination, reviewed by an attorney in your area, preferably one well-versed in defamation law.

To falsely claim that someone was terminated for downloading pornography onto a work computer, and then to share this falsehood with others in the workplace, could be enough to support a defamation suit, the caveat being that it would not be an inexpensive suit to pursue and there is never a guarantee of winning any lawsuit.

For a defamation action in California, you would need proof that a defamatory statement was communicated about you to at least one person other than yourself, and it was communicated without the due care that would be used by an average person of ordinary sensibilities, and that you suffered reputational injury as a result. Injury can be demonstrated through the loss of a job or other economic loss directly attributable to the statement, personal humiliation, mental anguish and suffering, and/or damage to the esteem or social standing in which one is held.

For slanderous statements, you would need a witness who could testify that what was communicated about you was, in fact, communicated.

Again, defamation actions are not inexpensive actions and they are not always successful actions and they can cause additional reputational injury just by the public nature of a court hearing. A defamation claim (or being involved in any legal action against a former employer) could also make it more difficult for you to find a new employer willing to hire you. That is why defamation actions are generally only pursued when the reputational injury is severe.

With all of that said, I think it might be worthwhile for you to seek an attorney's review. If your former employer is free with his words now, there is no guarantee he won't be free with his words later, should a prospective employer call him to ask about you.

A...Quincy...I don't think the OP would be too interested in pursuing such a time consuming and expensive case. HIs life is disrupted enough as it is. Most in his position certainly couldn't afford to entertain such an idea. It would be more reasonble to advise the OP on ways to successfully get employment (like right now) so he can mitigate his losses.

 

[quincy]

You are assuming CitizenX1 can get another job, Willly, temporary or otherwise.

It has already been passed on to others by his former employer that CitizenX1 downloaded pornography on his work computer (and uses drugs). If another employer hears that this was the reason for his termination, the employer may be reluctant to hire him.

That is often one of the effects of defamatory statements - the loss of a job or the inability to get a job. It is often evidence of reputational injury. When defamatory statements can be linked to economic losses, a defamation suit is a reasonable option to consider.

That said, getting another job should certainly be CitizenX1's goal. I don't think anyone here has suggested otherwise. But I still advise an attorney's review of the facts surrounding the termination, as well.

 

[commentator]

I am going to take umbrage at Willyjo's assumption that the OP was "wrongfully denied" his unemployment insurance by the bad evil agency. You make a lot of assumptions based on this one side of the story we have here.

Since it is always filtered through at least two or three different ears in the unemployment system, the bias of one particular judge (or administrative officer) will not generally sway a whole unemployment case. Usually the denial had some legs to stand on or it won't get through two or three people who are familiar with what would be "good proofs" and strong evidence that what the employer said was the reason they were terminated was the reason they were terminated, and that it met the definition of misconduct according to unemployment law.

Contrary to what many in the general public think, the employer is not given any favoritism in this situation. We've seen plenty of deceptive employers as well as deceptive claimants, we understand that the employer has a strong motivation to lie, just as the claimant has a big desire to be approved for benefits, and the decision was not made just because you the claimant is the victim here.

And believe me, you can be familiar with the law and how the law will be applied in this particular case without having the appellant's name exactly right, too. You're much more likely to mess up the name of the sixty-fifth person you see this week than you are to make a legal judgment error concerning something you deal with constantly.

I would wager that in this unemployment case, the employer had a bit more proof and a bit more documentation and reason for termination than just the screensaver in question. If you re-read the OP's initial post very carefully, it was "sexual harrasment AND downloading porn" that the employer initially lists as the reason for termination, according to the OP's post.

And even he says, ".....of course, I was denied." That didn't happen just because the employer said some magic phrase. They looked at the evidence, or at least collected some evidence that the employer gave them of the reason why this person was terminated and why it was misconduct. An initial decision was made denying benefits based on the comparison of the two stories, what the OP said and what the employer said and proofs thereof.

And when it came to the appeals hearing, the OP did not present a compelling enough testimony to get another person to see it any differently.

As we have gone over many times before, the information provided in an unemployment appeal hearing, which is supposed to be confidential and is only released to the claimant or the employer, is not something you can use to take the employer to court and sue them for perjury or anything like that, even if they lie blatantly. Likewise, the employer cannot prosecute the claimant for lying in their hearing. Heaven knows that happens occasionally too. An appeals officer must choose the MOST BELIEVABLE of the two parties.

I don't really buy into the "when I showed them that this was not pornography, then they changed their story to how I was downloading personal things onto the company's computers." That was an issue all along. They would explore whether the employee had signed off on that policy, whether or not he had knowledge this might lead to termination.

This employer convinced at least two representatives of the unemployment system that they had a valid misconduct reason to terminate the employee. In my opinion, we are not, from years of experience, getting both sides of this story. And besides, the decision has been made. if the OP did not then elect to have it heard by the Board of Review, he's done with appeals.

As Willy says, he can get another job and work there long enough to overcome the denial with re-earnings, then be laid off through no fault of his own and then start drawing this claim out. Good old temporary services. But that has nothing to do with this.

Personally, I think the fellow should simply ask his former co-worker who says they were told (or overheard) that he lost his job due to pornography and that he was a druggie not to mention it to anyone. I suspect the employer won't be rushing to tell a lot of people that was the reason he was terminated, not at all sure it will affect his future abilities to get a job, unless he wants to talk about it a lot. No one will find it out from unemployment records, they are not public information.

There's one heck of a lot of smoke wafting around in this situation for there not to be some sort of definable misconduct somewhere that was seen by the unemployment system. "Not only was I accused of downloading porn, the assistant said I was always on drugs....I had written a letter which was on my computer about how this supervisor had been harrassing me....." But good luck on getting these people to testify for you in a slander case, even under oath. Provided of course that you can show that you had any real damage other than not winning your unemployment hearing. I think you should move on.

 

[quincy]

I agree, commentator, that there was probably sufficient evidence of misconduct to warrant the termination and the denial of unemployment benefits. And pretty much everyone here at some point has taken "umbrage" at what Willlyjo posts.

I also agree with you that finding a currently-employed former coworker willing to testify against his current employer in a slander action would be difficult. The coworker is not going to want to risk his own employment.

BUT, based solely on what CitizenX1 has posted here and trusting that what he has posted is the truth, the whole truth, and nothing but the truth (which may be stretching trust a bit far ), he has been defamed if what has been communicated about him downloading pornography and using drugs is false. AND, the legal recourse when one has been defamed is to file a defamation claim against the defamer, this when the reputational injury is severe enough to warrant such a claim.

IF CitizenX1 cannot get another job because his former employer's defamatory comments in the past, or continued defamatory comments in the future, thwarts his efforts at being hired, THEN the reputational injury can be viewed as severe enough to warrant a claim and a defamation suit becomes a reasonable option for CitizenX1 to consider. A prospective employer could be a "witness" to the slander even if a former coworker is reluctant to testify.

A defamation suit, in other words, is not the first option to consider. It is just another option to consider. And because it may become a realistic option in the future, a review of the facts by an attorney now can be wise.

 

[You Are Guilty]

Not that it is particularly applicable to this specific problem, but its likely statements made by a business in "defending" a UI claim would be entitled to qualified privilege. (Granted, not the world's best defense, but in the name of accuracy...)

 

[quincy]

I agree, YAG, and think that any statements made by an employer to an unemployment agency would be covered by a qualified privilege (not that this privilege couldn't be lost with a showing of actual malice). But statements made about a dismissed employee by an employer to other employees, if defamatory, would not be covered by any privilege. Not in California.

It would be the defamatory statements made to CitizenX1's former coworkers, and any defamatory statements passed on to others (including but not limited to any prospective employers of CitizenX1), by either the former employer or the former coworkers who heard the defamatory statements, that would be the basis for a defamation claim.

This is assuming reputational injury is severe enough to warrant a claim (which it probably wouldn't be if CitizenX1 is able to move from this last job to another without problem).

And, if CitizenX1 is able to move easily into a new position with a new employer, then xylene's advice should be heeded by CitizenX1. "Kittens or plain grey" for the desktop.