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insubordination - reasonable request

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Connie Graves

Guest
What is the name of your state? Arizona

A friend who was experiencing sexual, religious and age discrimination in an agency and trying to resolve the problem within the company was terminated. The letter given to her at the time of termination noted the company's "at will" rights. Subsequently, when she filed for unemployment, the company stated that she was fired for misconduct based on her declining to confirm whether or not she had legal representation. The decision of the Unemployent office is that her refusal to advise if she was represented by counsel constitutes insubordination because the company's request was reasonable. Their determination is that she was thus fired for cause.

At the time of termination, she had discussed the situation with EEOC who subsequently cited the employer for both discrimination and retaliation and sent a right to sue letter. This is currrently pending.

We feel that (1) the company can't have it both ways - either the firing is "at will" as originally stated in the dismissal or "for cause".

(2) the demand of the company to advise if she was represented by counsel had nothing to do with her job performance or duties and that her refusal is not insubordination

(3) the true reason for her termination is based in her allegations of discrimination and retaliation supported by subsequent EEOC findings.

What can we do now? We obviously need to appeal - can we introduce new evidence not previously provided? What other avenues can we pursue? Can you direct us to any applicable case law?

Thanks for your help!
 


Beth3

Senior Member
1. The company can have it both ways. Her EMPLOYMENT was "at will." Her termination was for cause. (Although as an at will employee, no cause was necessary, which was the employer's point.)

2. Refusing a reasonable request from the employer is insubordination. What her job description says is irrelevant.

3. You may be right. I suspect the employer firing her for this reason will look very bad with the EEOC. Unless there's more to the story, at a minimum the employer's decision to terminate appears to be an over-reaction. Consequently, it's not illogical to presume that this was a pretext.

Yes, your friend should appeal the UC decision. Whether the State will reverse the initial decision is unknown but she has nothing to lose by requesting a hearing.
 
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Connie Graves

Guest
Thanks Beth! I guess I didn't state that when she was terminated, she was given a letter that stated the company was exercising it's "at will" rights" - nothing about misconduct or insubordination. The misconduct excuse was only used when she applied for unemployment.

I still question whether her refusal to provide information on whether or not she had counsel was in no way a reasonable request as it did not relate to her employment in any way. any comments.
 

Beth3

Senior Member
The employer had apparently been advised by your friend that she believed she was being subjected to multiple forms of prohibited harassment and you don't believe the employer wondering whether or not she had obtained legal counsel was pertinent to her employment? Of course it was.

It wasn't an unreasonable request. Under these circumstances, whether it was reasonable to terminate her because she refused is the question.
 
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Connie Graves

Guest
You're probably right about the question of legal counsel being applicable to her employment. I'm probably not being clear enough. From my reading of applicable law, a reasonable request usually refers to an action, task, job-related activity, not a request for information which could jeopardize her position. At the time of the termination, my friend was trying to keep the discrimination in house and very much wanted to keep her job. Her employer believed and continued to state that he knew she was going to file a complaint. My friend repeatedly stated verbally and in writing that she didn't want to have to go outside the company for relief - that she just wanted to do her job in a non-hostile environment. She had been advised by her senior supervisor not to discuss allegations of discrimination or retaliation with anyone besides him, or she would be terminated. The company representative who made the demand for the information was from the corporate office and her supervisor was not in town at the time. She was in a situation in which if she answered the question and discussed the discrimination issue with the corporate officer, she would be subject to termination per her supervisor's directive and if she refused, she became subject to termination for insubordination. My friend was caught in a double-bind situation and didn't know how to answer. She advised the corporate officer of her supervisor's directive nd explined the dilemma. They continued to press for the information without any reassurance of protection from termination. The transcript of the entire taped conversation was submitted as evidence.

I don't know if this makes any difference but I appreciate your feedback. This is a very ugly example of discrimination/retaliation
confirmed by EEOC. The issue regarding misconduct never came up until the EEOC investigation. If you have any sites that might clarify "reasonable request", I would greatly appreciate having them. Thanks again for your comments.
 

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