Wrongful Termination?

[jfernandez76]

Please Help!

What is the name of your state? Virginia

I'll try to make this short,...

In October 2004 I reported sexual harrassment to my "superior" after I made sure to speak with my co-worker and telling her stop harrassing me. At first, they all seemed to back me and look appauled at the detailed account of what was happenening to me. But after speaking to the other party, their support quickly disappeared. The facts were that we are both female employees, and after asking me out on dates several times and sending me explicit text meassages from her phone to mine (which I showed to my manager and HR), they all decided that I was blowing the whole matter out of proportion. Their exact word's were,..."While off-color, things like that are often said/done in the workplace, and I shouldn't take it so literal."
I was livid to say the least. If she were a he, he would have been fired. two months prior, a male employee was terminated for sending a female co-worker an email asking her if she got her bikini waxed. They thought I was making a big deal over "How fast can you move your tongue?"
I had proof of the harrassment, but the company chose to ignore my complaint and did nothing. They wouldn't even move her to a different location! They said if I was uncomfortable, I could move to a different store. But I was a commission-based employee, and did not want to lose my high-volume sales.
I decided to go over my manager's head, and HR's head and emailed the corporate head on the issue, and told him "my situation was being poo-pooed by HR" and that I wanted to be treated fairly or I would have to look outside the company for support". This did not sit well with everyone below because I did not let the matter go. I was surprised to get the same answer for corporate. No one would do anything because no one wanted to have to deal with a same-sex sexual harrassment issue. I called an attorney who said I didn't have a case unless she continued to harrass me. I had no choise but to let it go from there.
Six weeks later, they call me into the office and tell me they are terminating me because my husband signed a contract with my company and I assisted him, violating company rules. In fact, my husband sign a contract, but I referred it to another sales agent because I knew I could not assist him under company guidelines. The contract had the other sales agents imprinted name and her signature on it, but they said they had already reached a decision to terminated me. If you are confused by this,...join the club!
Several employee's have told me I was fired because of the sexual harrassment complaint I filed. I left a bad taste in their mouth because I voiced my outrage to being ignored, and threatned legal action.
Since I have evidence of clear-cut wrongful termination and documentation of the sexual harrassment complaint emails I sent and received, plus the text messages from the female who harrassed me, is their anything I can do?


P.S.
I know Virginia is an "AT WILL" termination state.

The female employee continued to harrass me after that time, but I was told to stop being paranoid.

The company has a "zero tolerance" policy for sexual harrassment.

 

[cbg]

I don't think it's quite as clear-cut as you would like it to be, at least on the basis of the facts in your post. So let's try to get to the bottom of a couple of them. BTW, I'm not going to be online much longer today, so if I don't respond right away just hang in there. I'll be back on tomorrow morning if I don't catch you tonight.

I need you to clarify some details for me. What a great many people consider illegal harassment, isn't. So can you give me an idea what kind of things the co-worker was saying? You don't need to go into graphic detail, but even the one phrase you quote, taken out of context, is not necessarily horrendously offensive.

The other point on which I need some clarification is/are the following:

1.) I called an attorney who said I didn't have a case unless she continued to harrass me.

2.) The female employee continued to harrass me after that time

These two statement, cut and pasted from your post, appear to contradict each other. I realize that appearances can be deceiving. Can you explain how they fit together?

 

[rmet4nzkx]

Have you filed a complaint with the eeoc?
I am confused you have two different threads, where you give different reasons for them wanting to terminate you, and deciding it ahead of time. Are you still working? How did being off on medical leave come into play? Did you use FMLA and or Worker's comp? Are you saying that all of this is retailation, which they cannod do if you filed a complaint. Same sex sexual harassment is still a hostile work environment.

 

[jfernandez76]

First, I really appreciate you looking at my thread.

What was the biggest problem for HR, wa the fact that up until 2 weeks before the incident, we got along great. At first I didn't even get that she was hitting on me. And when I realized it, I even stepped back from the situation and thought "Okay, sometimes male co-worker's hit on me, so I'm going to deal with this in the same manner."

It started very light. Taking me to lunch, calling me every day,...things you don't give a second thought to. Then over a 2 mo. period, it changed. She started to have problems at home, and would ask if I could come out and meet her and talk to her in her car. Starting telling me how nice I was, and if I ever thought about being with a female. I told her no on both accounts. But she didn't back-off. She would ask me on dates. The more I said no, the harder she 'd try. She would hide my wedding picture that was on my desk. When I ask her for it, she would tell me she didn't like to see me with some else. (???) I would tell her to stop, but she wouldn't. Finally, she text msg me "I want you tonight if that's possible." "I have a mirrored heardboard" and "How fast can you move your tongue?" She was sitting behind me at work while I was with a customer when she txt that, then tried to grab my breast after the customer left b/c we were the only ones in the storefront. That was it!

I called my old manager who had moved to a different store, and told her what was happening. She said I needed to have documented proof that I told my co-worker to stop harrassing me. I text msg her to stop text msg me, calling me, and trying to pursue me. She txt me back "Okay, it's done."

Yet after two days of not saying a word, she asks to speak to me as I'm going to my car. She tells me she hates that I am so cold to her and wants me to meet her that evening. She tells me I will never be happy with anyone but her. And tried to force a kiss. She scared the heck out of me. I call HR the following day.

After it was all over, and the lawyer said I didn't have a case unless the harrassment continued, I felt horrible. I came to work and my wedding picture was thrown off my desk. I immediately went to my manager who said I needed to stop being paranoid. I had 3 pictures on my desk and that's then only one on the floor? She would call my cell in middle of the night (wouldn't help to change the # b/c we work for a cell co.). The first 2 times I answered, and she would pause and then say, "I'll still have you." This went on for two weeks. I didn't answer those calls. But since she called from a resticted land-line, I could not accuse. She would wink and blow kisses at me when no one was looking. It was ridulous! But has I kept ignoring her, she stopped. One week later I get fired.

I'm not saying she knew either. It's just if I knew that by making a complaint and not taking "no" for an answer would have cost me my job, I wouldn't have went to HR at all, and just up with the harrassment. Basically if I didn't have it on video tape, it's like it didn't happen.

I got another job recently with a competitor. Several customer's who recognize me from the other co. have come up to me and the female I accused of harrassment had nothing but bad things to say about me. I was the top sales rep at that store. She said I was fired for theft and fraud. I live and work in the same town, and have been in the supermarket and been told this. It's happened over a dozen times.

Is there anything here?

 

[jfernandez76]

rmet4nzkx- I only have one thread. The medical leave thread is not mine. I did not file a complaint with the EEOC b/c I was told by the lawyer that my co. did it's best address the issue, and nothing would come of it. Is that true? I definately feel my termination was retailation, because the grounds for termination were unfounded.

 

[Katy W.]

Is there anything here?

I do not have the experience that CBG and rmet have, and I'm sorry for butting in here, but I would say yes, it appears that here is something here.

You were sexually harrassed. That is plain.

The company, including the CEO, knew about it and did nothing to stop it, am I reading this right?

6 weeks after you filed a complaint with the CEO's office, (may not be exact title) you were dismissed, and you claim the reason they gave for your termination is a pretext.

If all these statements are true AND you can prove them, to the extent where a trier of fact would decide that it is more likely than not that your account is true, it appears that you may have a prima facie case of retaliation.

Let me guess, you were asking the lawyer to take this on contingency, am I right? That usually dampens an attorney's enthusiasm for a case. At this point you don't need to be overly concerned with his remarks. There is one thing I am sure of; you need to file a charge with the EEOC.

Two points that you may want to work on documenting/gathering information:
- find as many witnesses or documents as you can to the harrassment, and -get documentation that shows the employer's alleged reason for your dismissal is untrue. You need to address whether this was co. policy, and if it was enforced with other employees. Get proof of statements made by the company that you can show are false. Get the witnesses that said they heard you were fired for filing the complaint, have them write their stories and sign them. Just think about any way that you can prove that things happened the way you are saying they did. The EEOC can do a better job if you already have as much information for them as possible instead of assuming that they will find out all the necessary facts for themselves.

If the EEOC shows cause for discrimination, it will probably be easier for you to find a lawyer.

Now "the girls" will hopefully tell you if I am off base on anything I told you.
Again, sorry for butting in here, but, damn!

Good luck j.

 

[jfernandez76]

katy- thank you. You are correct on the contingency of the lawyer. Everyone I had tried to contact wanted at least $1500 upfront due at consultation. He was the only one who would even talk to me over the phone.

 

[cbg]

jfernandez, I'm still not 100% certain that what happened meets the standard for sexual harassment. I am NOT saying that it doesn't - just that there is a certain gray area to this and I think you're firmly planted in it. Again, I'm basing this only on what you have posted; if I had been there and seen/heard it I might feel quite differently. Right now, I'm referring to what happened after you talked to HR and the attorney. The attorney is correct in what he said, btw. If the harassment stops after you report it, the company has fulfilled their obligation. So there are two legal issues. The first is whether or not what happened after your report is severe and pervasive enough to be considered a continuation of the harassment. The second is whether or not the reason they gave you for your firing is actually a pretext and you were ACTUALLY fired for filing a complaint.

However, the fact remains that to a certain degree sexual harassment is rooted in perception. It's not quite as clear-cut as, if you think you were being harassed, you were; that would leave things wide open for someone to claim harassment any time anything happened that they didn't like. But your perception is as, or more, important than her intent. So even if her after-report behavior does not technically constitute harassment (and again I'm NOT saying that it doesn't - just that it's not entirely clear that it does) you have the protected right to make a complaint. For the record, while I don't think it's a slam dunk, I think it's more likely that she was continuing to harass you that that she wasn't. I am not remotely questioning that harassment took place prior to your complaint to HR.

While sexual orientation is not protected at the Federal level or under the law of your state (some states offer such protection - mine does - but Virginia does not), the US Supreme Court has ruled that same-sex harassment can exist and that an individual is entitled to claim sexual harassment even if it is same sex, IF the behavior in question is sexually oriented. The relevant case is Oncale v. Sundowner, 1998.

There is no possible way anyone here can make a judgement as to whether or not your termination was actually a pretext. However, in light of the above, I think you have sufficient reason to at the very least contact the EEOC and/or your state discrimination board about the harassment. You CANNOT file a lawsuit on the sexual harassment issue until you have a right-to-sue letter from one regulatory agency or the other. That may also have been part of the attorney's reluctance.

I am NOT saying that you either do or don't have a case for wrongful termination. You might, but it is VERY unclear. That is a separate issue from whether or not the company did all it could have done to protect you from harassment. With regards to a potential wrongful term suit, I think you are going to have to speak to a local attorney, and you should be certain that it is an attorney with employment law experience.

Good luck to you. Let us know what happens.

 

[jfernandez76]

cbg-

thanks. will go to the EEOC to file a claim in person once I have gathered all the statements I can get. Will let you all know how it turns out.