Wrongful Termination / Defamation of Character and Sexual Discrimination

What is the name of your state? Colorado
I was terminated 2 days ago without any waring or due process. I am an Executive level manager. I was given the reason of "inability to perform my job" and "inappropriate behavior". Here is a recount of the events that lead up to this charge.

Several members of our Corporate team were in town for a grand opening Gala of our new store and we all went out for dinner. My Corporate director gave me the next day off because we had been working 6 day weeks 12-16 hours a day to open our new store.
Later that evening several of us wound up in one of the local drinking establishments. I was sitting with the Director of Finance at the bar and we were laughing and having a bit of fun. We noticed the President of the company had arrived so rather than continue drinking in front of the President we said our goodbyes and left to go to a different bar.

The next morning instead of taking the day off as had been approved I went to work to finish up some paperwork. The paint fumes and construction dust (my office was in the construction zone) were making me ill, so I called my director and left a message that I had gone to work but was now leaving to get a nap before the Gala. I left at 12:45pm and returned at 4:40pm and worked until 11:00pm that evening.

2 days later I was called into the HR department to have a conference call with the Corporate director of Hr and my Corporate Director. I was told that I was immediately terminated. I asked if I could discuss the circumstances and I was told it would make no difference their decision was final. I asked why I was being terminated and my Corporate Director stated "inappropraite behavior" while the Corportae Director of HR stated "inability to perform job responsiblities" because I went home for a few hours in the middle of the day. . I asked the Coporate HR director if she knew that I was given the day off and she said the "she had no knowlegde of that fact." My Corporate Director then interjected and confirmed that she had approved this but said it made no difference, I was "inappropriate". I asked her what she meant by this and she could not define what actions had occurred that could be deemed as inappropriate.

After the conference call, I asked the third party HR rep that was in the room if she knew what they meant by "inappropriate behavior" and she said that they stated that I left the bar that evening with the Director of Finance to bring him home to bed! These slanderous remarks were made without basis. Complete hearsay and what I feel is defamation of character. (Not to mention completely untrue. He is married and I am engaged.)

I spoke to the Director of Finace to see if he had sufferred the same unjust fate and he said that he had no knowledge of anything and no one had mentioned anything to him about his behavior being considered inappropriate.

I wrote an e-mail to the President and and clarified for him that I was terminated for "inability to perform my job responsibilities" on a day that I had been given off and I questioned why I as a female, was immediately terminated for "inappropriate behavior" while the senior director, a male, sufferred no repercussions. I expressed that I would ask these questions of an attorney.

One day later the senior male director of Finance was given the choice to resigna andthey called me and offerred me a severance package.

I was given no previous warning that my performace was anthing but stellar. I have NO incidences in my records for being cited for any subpar performance or "inappropriate" behavior.
I feel that I was wrongfully terminated due to intentional neglience (My Corporate Director did not disclose that I was given and day off before the decision was made to terminate me for going home sick onthat day.)
I feel that they have slandered me and defamed my character as well as creating a sexual discrimination issue in the way they handled my case versus how they later handled the voluntary resignation of the Corporate Director of finance.

Do I have a case?

No.

In order to have a case for wrongful termination, you need to show that the reason they fired you was an ILLEGAL reason. You may or may not have been unfairly terminated, but nothing in what they did crossed the line into illegality, or even close. Everything unfair is not illegal.

They are allowed to terminate you for inappropriate behavior, even if you do not agree that it was inappropriate and even if everything they believed happened, didn't. If they want to say that going on to another bar was inappropriate, they may, and they may fire you for it, even without any of the rest of it. If they believe the rest of it happened, they may legally fire you for it, even if they are 100% mistaken.

To prove a case of defamation, the burden of proof will be on you to show that they lied. Not, were mistaken. Not, misunderstood what happened. Not, disagreed with your interpretation of the word inappropriate. But knowingly and deliberately stated as fact something that they knew perfectly well was not true. And published that false statement to an audience. And as a direct result of that false statement and it's publication, you suffered damages.

As for sexual harassment, don't even try to go down that road. You are so far from having a case for sexual harassment it isn't even funny.

Nothing whatsoever in the law requires them to give you any kind of warning or provide progressive discipline.

I'm sorry this happened to you and I'm not making light of it or making fun of you. But nothing you describe gives you any kind of legal recourse that I can see.

Not sure you understood.

Thank you for your reply, however, I never mentioned sexual harassment. That is NOT a road I had even considered. I said I felt it was a sexual discrimination issue as I was immediatley terminated and the male collegue had suffered no repercussions initially. It was only after a letter to the President, clearly indicating that there were some issues relating to that fact, did he ask the other person to resign. Why was I terminated immediately and the other male co-worker asked to resign days later after my letter had arrived? Are not termination and resignation two completely different ways of handling the same issue? Please explain why I was treated so differently than my male collegue so that I can understand why this is not a sexual discrimination issue.

Additionally, is it legal for the Corporate Director of Hr to tell the hotel Hr rep that the "inappropriate action" involved me sleeping with my married collegue but did not inform me of this "information" when I asked why I was being terminated. Is that not slander? Character defamation? I can prove these statements were made as the Hr rep (the hotel senior director of HR) tooks notes of the conference call.

I can also prove that my Corporate Director withheld the information that she gave me the day off. The Corporate HR director new NOTHING about this when she fired me. When I asked her how she could claim she was firing me for taking a few hours off during the day when it was a day the I was given off, she said "What? I know nothing about this" It was only at that point did my Corporate Director confirm that I did indeed have that day off.

How is this legal????!!!!! I have worked as a senior director in this industry for 12 years and have absolutely NO black marks on my career and it is legal for someone to say "Ok now your fired? We may have our facts wrong and be 100% mistaken but your career is still over." This sounds not only unfair but quite insane.

colorado1 said:

Thank you for your reply, however, I never mentioned sexual harassment. That is NOT a road I had even considered. I said I felt it was a sexual discrimination issue as I was immediatley terminated and the male collegue had suffered no repercussions initially. It was only after a letter to the President, clearly indicating that there were some issues relating to that fact, did he ask the other person to resign. Why was I terminated immediately and the other male co-worker asked to resign days later after my letter had arrived? Are not termination and resignation two completely different ways of handling the same issue? Please explain why I was treated so differently than my male collegue so that I can understand why this is not a sexual discrimination issue.

Additionally, is it legal for the Corporate Director of Hr to tell the hotel Hr rep that the "inappropriate action" involved me sleeping with my married collegue but did not inform me of this "information" when I asked why I was being terminated. Is that not slander? Character defamation? I can prove these statements were made as the Hr rep (the hotel senior director of HR) tooks notes of the conference call.

I can also prove that my Corporate Director withheld the information that she gave me the day off. The Corporate HR director new NOTHING about this when she fired me. When I asked her how she could claim she was firing me for taking a few hours off during the day when it was a day the I was given off, she said "What? I know nothing about this" It was only at that point did my Corporate Director confirm that I did indeed have that day off.

How is this legal????!!!!! I have worked as a senior director in this industry for 12 years and have absolutely NO black marks on my career and it is legal for someone to say "Ok now your fired? We may have our facts wrong and be 100% mistaken but your career is still over." This sounds not only unfair but quite insane.

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They could have fired you for any number of reasons including whining about your situation. That's the fact you just don't get and probably never will. NOTHING in your post is even remotely suggestive of a wrongful termination or sexual harrassment.

SO, the ONLY suggestion I would give besides look for another job, is to look the two terms up on the internet so you don't continue looking like a fool.

There can be any number of reasons why you were treated differently than a male employee and most of them are legal. If they feel that you were more culpable; if it was because he has more seniority; if he is in a higher level position; if you have a different history of disciplinary issues; or just about any reason that does not relate to your gender, they can legally treat you differently even for the same offense. Suppose you explain to me what evidence you have that you were treated differently BECAUSE OF your gender.

Yes, it is legal for them to tell the HR rep the reasons you were terminated and no, it is neither slander nor defamation unless you are prepared to prove (and the burden of proof is entirely on you) that they KNEW that the reasons they gave were false AND that as a result of their telling this to the HR rep, you suffered damages.

I didn't say it was fair; I said it was legal. It surprises most people to learn that barring a contract that says otherwise, they have no legal right to continue in their jobs if the employer no longer wishes them to, but that is in fact the case. You can quit whenever you like; you can be fired whenever the employer likes unless there is a specific law barring them from firing you for that reason. In this case, there isn't.

cbg said:

No.

In order to have a case for wrongful termination, you need to show that the reason they fired you was an ILLEGAL reason. You may or may not have been unfairly terminated, but nothing in what they did crossed the line into illegality, or even close. Everything unfair is not illegal.

They are allowed to terminate you for inappropriate behavior, even if you do not agree that it was inappropriate and even if everything they believed happened, didn't. If they want to say that going on to another bar was inappropriate, they may, and they may fire you for it, even without any of the rest of it. If they believe the rest of it happened, they may legally fire you for it, even if they are 100% mistaken.

To prove a case of defamation, the burden of proof will be on you to show that they lied. Not, were mistaken. Not, misunderstood what happened. Not, disagreed with your interpretation of the word inappropriate. But knowingly and deliberately stated as fact something that they knew perfectly well was not true. And published that false statement to an audience. And as a direct result of that false statement and it's publication, you suffered damages.

As for sexual harassment, don't even try to go down that road. You are so far from having a case for sexual harassment it isn't even funny.

Nothing whatsoever in the law requires them to give you any kind of warning or provide progressive discipline.

I'm sorry this happened to you and I'm not making light of it or making fun of you. But nothing you describe gives you any kind of legal recourse that I can see.

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You offer some good advice ASSUMING certain things are true. However, before you reach the deterination you did regarding wrongful termination we need to get more information.

First of all you have to determine if Colorado is an "employment at will" state. If not, then there may be some statutory protections that apply.

Second, you also have to find out whether the employee had a contract that might provide protections for the employee. Also, you'll want to look at the company handbook (if any) and what procedure is outlinee there. I'm not sure that was ever addressed.

Finally, if Colorado is an at-will state and the employee doesn't have a contract (or it doesn't cover this type of situation), they still can't terminate the employee if she is exercising a statutory or constitutional right. In this case that doesn't appear to be the case here. So if you get to this stage with the appropriate answers, I would agree with the proffered advice.

Rhubarb297 said:

You offer some good advice ASSUMING certain things are true. However, before you reach the deterination you did we need to get more information.

First of all you have to determine if Colorado is an "employment at will" state. If not, then there may be some statutory protections that apply.

Second, you also have to find out whether the employee had a contract that might provide protections for the employee. Also, you'll want to look at the company handbook (if any) and what procedure is outline there. I'm not sure that was ever addressed.

Finally, if Colorado is an at-will state and the employee doesn't have a contract (or it doesn't cover this type of situation), they still can't terminate the employee if she is exercising a statutory or constitutional right. In this case that doesn't appear to be the case here.

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Not one part of your argument is based on sound legal reasoning.
First off, learn what 'wrongful termination' means. Then maybe you'll understand why your post has nothing to do with the poster's initial facts.

BelizeBreeze said:

Not one part of your argument is based on sound legal reasoning.
First off, learn what 'wrongful termination' means. Then maybe you'll understand why your post has nothing to do with the poster's initial facts.

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Do I have to make you look bad twice in one day? I spent a couple years handling employment cases for an agency of the state, including wrongful discharge cases. This is really basic stuff but I'll type slowly for you if that will help.

Indiana is an employment at will state. That basically means they can fire you for wearing the wrong colored tie. However, we don't know if Colorado is an "employment at will" state. And you don't think that is relevant to a wrongful termination case? Heck, even some schmo off the street knows that. Of course it's relevant if Colorado is, or is not, an "employment at will" state.

Even if it's an employment at will state, the next step for an attorney is to review the employee's contract, if he has one. (How could you possibly think that's not important?) At this stage you will also want to review the company handbook to see if they have a disciplnary and/or termination procedure in the book. (Now how could you possibly think that's not important?)

If neither the contract or the employee manual covers the situation, the next step is to determine whether the employee was fired for exercising a constitutional or statutory right. Even in states that are employment at will and where employees aren't protected by a contract or a company procedure, a company can't fire an employee for exercising a constitutional right. For example, whistleblowing is generally protected by federal and state law. Companies can't fire them for that.

Okay, is that clear enough? I mean this is basic, basic stuff. Even attorneys who don't practice in the employment field, know the procedure (outlined above) to take in a wrongful discharge case.

Rhubarb, all states at "employment at will states", except one, it's either Montana or Wyoming. And I understand that even that exception state has limited protection.

Yes, I know if Colorado is an employment at will state. It is. The only state that is not, is Montana, and even Montana uses the at-will doctrine during the initial probationary period or, if there is no such probationary period, the first six months of employment.

I will grant you we don't know for certain if there is an employment contract. However, in my experience on this and other boards, the majority of posters who have employment contracts mention it. Obviously, if there is a contract that specifies that she can't be termed in this manner, that makes a difference. But I very much doubt that she would have failed to include that information. Are you really telling me you think there's a chance she'd have omitted to state that she's employed under a contract that says she can only be termed if x, when this is y? Gimme a break.

The same goes for any BINDING (and not all, or even most, company handbooks are binding) handbook.

cbg, I knew you knew that, it just didn't appear that rhubard did.

pattytx said:

Rhubarb, all states at "employment at will states", except one, it's either Montana or Wyoming. And I understand that even that exception state has limited protection.

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My experience is totally in Indiana so I can only speak to Indiana. But I would guess that a few more states than that have restrictions in place requiring cause to fire employees. If a state requires any level of cause, that would mean they are not an employment at will state.

Interesting issue. I might try researching it if I have time this afternoon.

cbg said:

Yes, I know if Colorado is an employment at will state. It is. The only state that is not, is Montana, and even Montana uses the at-will doctrine during the initial probationary period or, if there is no such probationary period, the first six months of employment.

I will grant you we don't know for certain if there is an employment contract. However, in my experience on this and other boards, the majority of posters who have employment contracts mention it. Obviously, if there is a contract that specifies that she can't be termed in this manner, that makes a difference. But I very much doubt that she would have failed to include that information. Are you really telling me you think there's a chance she'd have omitted to state that she's employed under a contract that says she can only be termed if x, when this is y? Gimme a break.

The same goes for any BINDING (and not all, or even most, company handbooks are binding) handbook.

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Virtually all companies of any size have handbooks. (You're right, sometimes those handbooks are binding, sometimes not.) And, yes, believe it or not, I would say most plaintiffs who come to an CLIENT interview regarding a possible wrongful termination case, fail to mention it. More will mention they have a contract, but few have read it or studied it to see if it applies.

Because the person is an executive manager, I certainly wouldn't automatically assume that she didn't have a contract. A lot of execs have contracts. Nonetheless, it would be foolish to ever assume critical facts like that. Her only chance of winning most likely relate to the possible existence of a contract or a handbook that outlines company procedure.

Patty, you and I were posting at the same time.

Rhubarb: So if she has a contract, she can post back and say so. You've certainly made the point clear enough. Otherwise, my advice stands.

pattytx said:

Rhubarb, all states at "employment at will states", except one, it's either Montana or Wyoming. And I understand that even that exception state has limited protection.

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You bring up an excellent question so I did some brief research. It became very quickly apparent that whether a state is an "at will employment" state is not as easy to discern as one would think.

I did run across a 2001 article in Monthly Labor Review, in which it discusses one major exception to the at will doctrine. According to that article 11 states read into the employment relationship an implied covenant of "good faith and fair dealing."

According to the author this "good-faith covenant has been interpreted in different ways, from meaning that terminations must be for cause or that the terminations cannnot be made in bad faith or with malice intended."

I guess one could still claim that exception doesn't prevent those states from being "at will" states, but there does seem to be an awfully strong causal component in that requirement that isn't in what you would find in employment at will states. Any state that has that requirement I sure wouldn't call an "employment at will" state.

Those states by the way are Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah and Wyoming.

This is the article. http://stats.bls.gov/opub/mlr/2001/01/art1full.pdf