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unemployment denied/wrongful termination?

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cshipman

Guest
First installment of a long, complicated, and extremely frustrating story:

I am a former federal employee, having been terminated in July 2000, ostensibly, for unacceptable performance and misconduct (insubordination) during my probationary period.

The agency's allegations of unacceptable performance and misconduct have no basis in fact. There was no valid, objective reason for my performance to have been rated anything other than fully satisfactory. The allegation of misconduct is false, the incident cited as insubordination (failure to follow a proper order) did not occur as my supervisor claims, and I did not refuse to follow any order.

Following my termination, I applied for, and received, unemployment benefits from the Texas Workforce Commission.

My former employer subsequently disputed my eligibility for unemployment benefits, citing alleged misconduct/insubordination.

My claim was heard in a lengthy telephone hearing by a TWC Officer, who ruled that I was indeed eligible for unemployment benefits. (The basis of this ruling being that the alleged incident of misconduct was said to have occurred (33 days) AFTER the agency had recommended my non-retention for unacceptable performance.)

My employer appealed this ruling to the TWC Tribunal. The TWC Tribunal, presumably upon review of the tape recordings of the original hearing, overturned the original ruling on a split decision.

I requested a rehearing, but my request was denied citing a lack of new evidence.

The TWC Tribunal ruling requires that I repay my unemployment benefits, an amount in excess of $3000.

I am absolutely certain that, if the claims and allegations against me were examined thoroughly, my eligibility would be restored and I would not be required to repay the benefits I have received.

The unemployment benefits issue is only the tip of the iceberg. I am totally convinced that I was terminated for reasons unknown and undisclosed to me, and unrelated to any objective assessment of my performance or conduct.

What can I do? I have pursued related claims to no avail and am exhausted by this whole ordeal! I would just give it up if the agency's claims regarding my performance and conduct were even remotely justifiable, but they are not!

I am so angry and frustrated!

Please advise.
 
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buddy2bear

Guest
My thoughts -- you seemed to have exhausted all your administrative remedies. You will have to hire an employment attorney and take it to court. However, usually if one is terminated during a "probationary" period, that individual will have to have undeniable proof that they did nothing wrong and that the employer's actions were deliberately bias and/or violated the law. Unfortunately, many attorneys will not take a case against the Government unless it involves a very good chance of winning and is for a large amount of money.
 
C

cshipman

Guest
I certainly wouldn't say that the administrative remedies have been exhausted. Rather, I think the horse never left the starting gate.

I have exhausted myself attempting to get the various agencies who claim to protect and uphold the rights of employees (MSPB, OSC, EEOC, TWC, DOL, etc.) to look into this. The responses I have received from these agencies reminds me of the story of the three monkeys (see no evil, hear no evil, speak no evil) with a twist: "no valid claim, no evidence, no jurisdiction".

How can a former employee "fight it" when he has done nothing wrong? How can prove that an employer's charges of misconduct and unacceptable performance were fabricated, that supervisory personnel conspired to concoct the fabrication and evaded financial responsibility by lying under oath? How can he "prove" his innocence under such circumstances?

Adding insult to injury, I need to "prove" AGAIN that my termination was not for misconduct just to avoid having to repay unemployment benefits that I rightfully deserve.

It is a sad state of affairs in this country that the criminal suspect is presumed innocent until proven guilty beyond a reasonable doubt before a jury of his peers, while the employer may summarily terminate, (not to mention slander, libel, threaten, harass, blackball, deceive, misuse, abuse...) their employee(s) without just cause or proof of misconduct or incompetence.

Employers have little or no fear of being held accountable for their treatment of employees. The likelihood of accountability is almost non-existent. Unless the employer is REALLY STUPID (like brain dead) and screws up REALLY BAD (like leaving a corpse in plain sight), they know their (former) employee(s) will become silent, as I will, having exhausted themselves trying to be heard by those who profess, but only pretend to be listening.

It would be wonderful if every worker with a righteous cause were able to afford an attorney to speak for them. Of course that will never happen as long as employers have a vested interest in, and are able to obtain cheap, expendable labor.

BTW, $3000 IS a large amount of money, if you're BROKE!!!
 
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wtd

Member
I would imagine that you would have to prove that you were simply fired with no cause (lay-off) as opposed to being fired with just cause -

There was no valid, objective reason for my performance to have been rated anything other than fully satisfactory.
You'd have to prove this - rhetoric won't do.

The allegation of misconduct is false, the incident cited as insubordination (failure to follow a proper order) did not occur as my supervisor claims, and I did not refuse to follow any order.
Same answer as the other one.

For the first one I'd think you'd have to get the employer to state EXACTLY why your performance was unsatisfactory, i.e.: often late, missed days, incomplete tasks, then refute the employer's reasons one by one.

Pretty much the same for the second one - do you know EXACTLY what order that you were to carry out, but (per your employer), failed to (and were fired for)?
If you haven't already, during your first two hearings, get your former employer to commit to specific acts, not the nebulous "unsatisfactory performance" (could mean anything), then find the required information to refute these claims.
For example -
Complaint: Employee failed to framish the widget when instructed to do so.
Response: Well if you did indeed framish the widget as instructed, find someone who saw you do it or pose the question 'what would have happened had the widget not been framished and did that happen' (if no, then framishment must have occurred and if employer can produce no one else who did it, then you must have).

So -
1) Get specfic charges from your former employer.
2) Get information and/or witnesses to refute the specific charges.
3) Try the Labor Board again (it'll look like new evidence, but it'll just be packaged differently).

If you've done the above and it's failed, sorry about beating a dead horse - hopefully some new things to think about in here -
Good luck,
wtd
 
C

cshipman

Guest
I apologize for the tone of frustration that came through in my last post. I wanted to respond to a few things you said:

"...For the first one I'd think you'd have to get the employer to state EXACTLY why your performance was unsatisfactory..." NONE of the reasons given hold water, some are extremely subjective and vague, some are just absurd, but I've been unable to gain the attention of anyone with authority/jurisdiction.

"...Pretty much the same for the second one - do you know EXACTLY what order that you were to carry out, but (per your employer), failed to (and were fired for)?..."
She (they) were very reluctant to disclose the exact nature of the (alleged) insubordination. The exact (alleged) offense was identified only because my supervisor was ordered to do so (by the TWC hearing officer). My supervisor claimed that she handed me a stack of completed forms, told me to enter the information from a specific form into the computer, that I refused to do so, whereupon she informed me that I had been trained to do the task, took the form , and left. She could/would not say what she did with the form, or who she gave it to.

What REALLY happened was this: she handed me a stack of completed forms and asked me what I did/was going to do with a specific form. I told her what I (or any of my peers) routinely do with it, which was to give/route it to a certain co-worker. She took it from me, saying "You've been trained to do this!", and left as I was stating that I had not been trained to process the form. No order, no refusal, no insubordination. Supposing that my supervisor had ordered me to perform this task and that I knew or had been trained how to do it, neither I, nor any of my co-workers (with the exception of the one I indicated) could have done it without the required computer access authorization code (key). The person I indicated was the only one (other than my supervisor) who had the authorization (key) required to process the form. That is why this particular form/task was routinely given/routed to this person in the first place. The testimony of several co-workers supported/corroborated my testimony to this effect. My supervisor and her superior testified (falsely) that this was a routine task in which my co-workers and I had been trained and were all capable of doing, and that no special authorization (key) was required.

"...If you haven't already, during your first two hearings, get your former employer to commit to specific acts, not the nebulous "unsatisfactory performance" (could mean anything), then find the required information to refute these claims."...

The two (Texas Workforce Commission) hearings dealt exclusively with the question of my eligibility for unemployment benefits due to the (allegation of) work-related misconduct. The hearing officer would not allow discussion of the performance issue, though my employer tried to bring it up.

The employer did provide me copies of documents used to support the unacceptable performance rating and termination. There were not many performance deficiencies alleged, and several of them are just absurd. For example, a document titled "Reasons for not retaining employee" states that "He doesn't answer the phone unless it rings on his desk. All the other phones in the area can be ringing and he does not attempt to answer any of them. The situation has not improved." Neither statement is true. I answered nearby phones when I was able to and, despite being hard-of-hearing, I neither needed or requested any telephone accommodation (other than holding background noise to a dull roar).

Another example (quoted from document titled "Reasons for not retaining employee") ..."I have received several complaints from other employees concerning this employee's attitude... He appears to feel that he is superior to (clients and co-workers).

Several of the reasons given by my supervisor for her unacceptable performance rating and recommendation not to retain are no more or less than the accumulated, unverified gripes/complaints of my co-workers.

What I need to know is:

(1) What is the standard of proof required? My supervisor was the only person in the workplace who claimed or considered my performance unacceptable. My co-workers were almost as shocked as I was. Even her superior stated that he would have been hesitant to approve her recommendation to terminate had it not been for the (alleged) insubordination. It should be fairly easy to disprove the allegation of insubordination (again), but I have no "new" evidence with which to request a rehearing. How do I prove that NOTHING HAPPENED?
(2) Who has authority/jurisdiction to hear my claim(s)?
(3) How do I get them to hear me, instead of denying my request for a hearing?

Please advise.

Craig
 
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cshipman

Guest
ineligible for employment because of previous employers termination

Craig writes from Texas:

I recently applied for job vacancies posted by an agency of the State of Texas.

After two interviews, I received a letter informing me that the agency's policy was that they do not hire anyone who has been terminated (from a previous job) within the last year and, for that reason, I could not be considered for employment.

I was advised that I could re-apply after one year of gainful employment.

I disclosed my previous terminations on my job applications, and discussed the circumstances of my terminations at both interviews when asked.

I appreciate your comments regarding this letter and policy, and welcome advice on how to avoid rejection by prospective employers for this reason in the future.

Regards,

Craig Shipman
 
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louisville1971

Guest
I thought Texas was a "fire at will" state? From my understanding after being wrongfully terminated, that in the state of texas, an employer can fire you for any reason.
 
C

cshipman

Guest
Yes, Texas is an "at will" state. An employer may terminate/fire an employee for any reason (even a false reason) or for no reason at all.

I was surprised to discover that the State agency I applied to had a policy that denies hiring or employment consideration because of an applicant's termination/firing by a previous employer (within the last year).

Does the restriction apply to all agencies of the State of Texas?

If not, which agencies would consider my application, under the circumstances?

Does the restriction also apply to Federal job applicants?

Your comments are appreciated.
 

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