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Wrongful termination/false allegations of sexual harassment/discrimination

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SusanStaley

Junior Member
An innocent, non-sexual remark intended for a member of the same sex was mistakenly misinterpreted by a very intoxicated member of the opposite sex as sexual harassment.

The result was the termination of an innocent individual due to the corporation’s verbal reason of “risk mitigation” in an “at will” employment state (California).

The false accusations of sexual harassment have pre-empted the protected rights of the accused who suffers from a disability as defined by the Americans with Disabilities Act of 1990 and the Civil rights Act of 1964.1.

Facts behind case:
-Went to Arizona for training
-My boss and I went to a ball game.
-Returned at 10:45 pm to find another group from the company drinking. (Boss spent 10 minutes talking to them then left. I remained 5 minutes longer.)
-When leaving I made an innocent joke to one of the other male managers about all of us getting up really early in the morning (due to the late hour). The male coworker and I joked back and forth and I stated, “if you need to reach me I am in 1235, (a joke, as opposed to “1234”).
-A female manager, who was very intoxicated at the time, (and physically putting her arms around another male co-worker) thus creating a scene by issuing verbal expletitives to the entire group then inserted herself into the conversation. She asked “really?” (about the key, and I thought about the ridiculous room number of “1235”.)
-I said yes, and held up my room key saying “do you want to see?” (I was referring to the number that was apparently of interest to everyone.) I held up the key, holding my thumb over all but the last 2 digits, I was in 6135.
-She said no (and not in an offended manner whatsoever). I thought nothing of it and said good night to everyone around.
-Returned to my room at 11:08 and called my wife, and spent 13 minutes on the phone with her casually recalling the events of the day. I even told my wife about the intoxicated female manager, and that the manager will be embarrassed in the morning by creating such a scene given the profanity that must have made some (including myself) uncomfortable.
-The next day, the female manager co-worker sent me an invitation to “Linked-in” a business social network on the internet. Furthermore, she did not once indicate that there was any problem with my behavior whatsoever.
-9 days later on 8/1, Human Resources calls conducting an investigation. I expressed my innosence offered to take a polygraph.
-On 8/4 at 5 pm EST I conveyed that I had documented ADD, the HR rep expressed concern in dealing with customers. I assured them that my ADD was not an excuse for the admission of any wrongdoing, but merely the fact that I tend to jump from conversation to conversation particularly when I am tired.
I also stated that I do not meet with customers late at night (as in this situation) and that my ADD is under control with medication.
-On 8/5, the paperwork was processed for termination.
-On Wednesday 8/6 I was terminated. Aside from telling me it’s for “Risk Mitigation” they will give me no details of the investigation.
-Filed complaint with California FEHA



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


cbg

I'm a Northern Girl
You were not terminated because you have a disability. You were terminated because you made a really stupid remark that offended someone.

That is not even close to an illegal termination.
 

SusanStaley

Junior Member
No that is not the case

The termination paperwork and final check were cut within hours of the result of the disclosure of ADD. The investigation itself concluded that there were no corroborating witnesses to the incident and the HR person even.

There is grounds here for discriminiation - disparate intent with pretext, disparate impact, and lack of accommodation.

Are you a lawyer?
 

SusanStaley

Junior Member
FEHA and EEOC filings do not substitute for civil litigation

Yes, we filed with FEHA and EEOC, however, my understanding is this site also offered advice for those in need of legal assistance contemplating litigation.

We are seeking legal opinion here not in lieu of our EEOC and FEHA filings.
 

cbg

I'm a Northern Girl
Balderdash.

You didn't disclose the ADD until after the investigation was already started, by your own timeline.

First, they are not required to accomodate a condition they are not aware of. You don't get to do something stupid and then, when you are in danger of termination, disclose a disability and automatically get a clean slate.

Secondly, accomodation does not have to involve permitting behavior that would not be permitted in a non-disabled person. If they would fire a non-disabled person for the behavior, you can be fired for it.
 

VeronicaLodge

Senior Member
having a disability does not give you an open door to violating other policies, not doing your job, or to behave badly and not get fired for it. in an at will state you can be fired for any reason so long as it is not an illegal reason even if you are a member of a protected class.
 

SusanStaley

Junior Member
ADD was disclosed to H.R. at beginning of employment

My documented condition (from licensed psychiatrist) was given to H.R. rep who had been on the job for all of 5 days. It was given to him with the myriad of new hire paperwork. I was not under obligation due to fear of discrimination, to give this to my sales management.
The reason for termination was not verbally nor written to me due to sexual harassment. It was due to "risk mitigation". The H.R. rep, although not able to provide me with written documentation of the internal investigation, told me on 8/1 on the phone that there was not corroborrating evidence about the alleged sexual harassment, and to have a good weekend.
On the late afternoon of 8/4, after days and days of soul-searching to see how what I could have said could have been misconstrued, I contacted H.R. to discuss my ADD issue, and how that while not admitting to any wrongdoing, could have contributed to the confusion of the conversation as everyone (including myself) was bantering back and forth.
On 8/5 a.m. the termination paperwork was drawn up and payroll check cut. Furthermore, upon dismissal, they were supposed to give me all wages owed. They did not.
On 8/6/08 the termination took place.

FEHA has verbally stated that this is a valid claima due to disability discrimination and we should pursue litigation.
 
Last edited:

SusanStaley

Junior Member
ADD was disclosed to H.R. at beginning of employment

My documented condition (from licensed psychiatrist) was given to H.R. rep who had been on the job for all of 5 days. It was given to him with the myriad of new hire paperwork. I was not under obligation due to fear of discrimination, to give this to my sales management.
The reason for termination was not verbally nor written to me due to sexual harassment. It was due to "risk mitigation". The H.R. rep, although not able to provide me with written documentation of the internal investigation, told me on 8/1 on the phone that there was not corroborrating evidence about the alleged sexual harassment, and to have a good weekend.
On the late afternoon of 8/4, after days and days of soul-searching to see how what I could have said could have been misconstrued, I contacted H.R. to discuss my ADD issue, and how that while not admitting to any wrongdoing, could have contributed to the confusion of the conversation as everyone (including myself) was bantering back and forth.
On 8/5 a.m. the termination paperwork was drawn up and payroll check cut. Furthermore, upon dismissal, they were supposed to give me all wages owed. They did not.
On 8/6/08 the termination took place.

FEHA has verbally stated that this is a valid claima due to disability discrimination and we should pursue litigation.
 

HomeGuru

Senior Member
My documented condition (from licensed psychiatrist) was given to H.R. rep who had been on the job for all of 5 days. It was given to him with the myriad of new hire paperwork. I was not under obligation due to fear of discrimination, to give this to my sales management.
The reason for termination was not verbally nor written to me due to sexual harassment. It was due to "risk mitigation". The H.R. rep, although not able to provide me with written documentation of the internal investigation, told me on 8/1 on the phone that there was not corroborrating evidence about the alleged sexual harassment, and to have a good weekend.
On the late afternoon of 8/4, after days and days of soul-searching to see how what I could have said could have been misconstrued, I contacted H.R. to discuss my ADD issue, and how that while not admitting to any wrongdoing, could have contributed to the confusion of the conversation as everyone (including myself) was bantering back and forth.
On 8/5 a.m. the termination paperwork was drawn up and payroll check cut. Furthermore, upon dismissal, they were supposed to give me all wages owed. They did not.
On 8/6/08 the termination took place.

FEHA has verbally stated that this is a valid claima due to disability discrimination and we should pursue litigation.


**A: then sue under ADA.
 

SusanStaley

Junior Member
Input from different attorney on 8/15/08 at 11:28

Here is the input I just received from another attorney given same exact account of events.

Attorney: "If your employer has treated your ADD as a disability and used it as a reason for termination, IT CAN BE CONSIDERED DISCRIMINATION under the ADA. You need to file a complaint with the state commission on human/civil rights and provide your documentation that the employer treated your ADD as a disability in terminating you. Then you should hire an attorney and prepare to sue."

Thanks for your help!
 

HomeGuru

Senior Member
Here is the input I just received from another attorney given same exact account of events.

Attorney: "If your employer has treated your ADD as a disability and used it as a reason for termination, IT CAN BE CONSIDERED DISCRIMINATION under the ADA. You need to file a complaint with the state commission on human/civil rights and provide your documentation that the employer treated your ADD as a disability in terminating you. Then you should hire an attorney and prepare to sue."

Thanks for your help!
**A: did you not ready MY post?
 

SusanStaley

Junior Member
We were posting at the SAME time

The slogan of this site should read, "So/So Advice, Adversarial Tone, But Hey It's Free and You Get What You Pay For" .

Thank goodness, I have the financial resources to get more professional, qualified legal assistance than you here have provided.

I feel truly sorry for those who cannot afford to do so.

After perusing your typical responses, I cannot fathom why anyone would want to locate a lawyer given the sarcastic, demeaning advice offered on this site. (Others sites are more professional in tone). I understand this to be the financial objective of the site.

I should have listened when I was told "stay away from internet attorneys!

Goodbye
 

ecmst12

Senior Member
If the only 'evidence' you have that your termination was due to your ADD is the fact that your condition was discussed shortly before you were terminated, you are not going to get very far. It is very easy for the company to show that you were fired due to the accusations against you, and that is all they need to do. The accusations do not need to be correct, reasonable, or proven in order for you to legally be fired because of them.
 

SusanStaley

Junior Member
Thank you, you have been the most helpful

There actually is more "pretext" evidence with respect to the ADD which we are compiling. Also, we also just spoke to the deputy commissioner of the California DFEH who feels that there was lack of reasonable accommodation in making someone who suffers from ADD work up until 11:00 p.m. even while under ADD medication.

Thanks again!
 

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