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GenaT

Personnel Board of Appeals

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I was recently terminated from my place of employment  a few days short of completing my 8 month probationary period. Because it was a probationary dismissal my former employee was not required to provide me with an explanation/reason for the dismissal, however since my attendance, job performance, attitude, etc. met or exceeded expectations I firmly believe it was in retaliation for my reporting an incidence of harassment that occurred approximately a month earlier. 

The incident involved harassment toward myself by two of my immediate supervisors. Following my report I was interviewed by my agencies internal affairs office and immediately reassigned to a different shift. (Perhaps I should mention that at  the start of my employment I was asked to list my shift preferences and the shift I was moved was my last and least desired choice.)  During this interview I provided the names of several coworkers with whom I'd known to have had experiences to my own with the supervisors in question however the only people present at the time of my harassment were the two supervisors  and myself.

I was instructed by the internal affairs office not to discuss this situation with anyone and I did not, nor am I privy to any of the details regarding the investigation that ensued, if one if fact did take place. I do know however that neither of the supervisors in question received any disciplinary action as a result of my report.

Following my sudden and unexpected dismissal I contacted  the coworkers I mentioned as  potential collaborating witnesses and learned that they were never contacted about the matter. 

 

I feel that my report of harassment and the ensuring investigation were improperly handled and that my dismissal was in retaliation however I am seeking advice regarding how to prove this or which steps I should take from here that may help improve my chances of winning an appeal to the personnel board. Thank you. 

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The employer doesn’t have to do any particular sort of investigation nor does it have to discipline the persons who did the harrassment. If the harassment was of a type that is prohibited by law (harassment based on a protected characteristic, like sex, race, age, religion, etc) then the employer’s responsibility is to make the harassment stop. If the harassment stops, the employer has met its legal obligation. If the harassment was due to something other than a protected characteristic, it might not have been illegal at all. So the details matter. What kind of harassment was this?

 

Your post implies that you work for a government agency, but it would help to verify that and, if it is, is it a federal, state, or local agency?

 

Unfortunately, since you were in a probationary period and thus hadn’t been there long, the firing could have been for all kinds of reasons rather than as retaliation for your harassment complaints. If you sued, you bear the burden of proving that it was due to retaliation, and you'll need something more than just that you don’t have any idea what you were fired for to succeed. That would mean at the very least having to do a lot of discovery if you were to sue and the complaint got past the initial motion to dismiss. 

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I was employed by the DOC. I'll attempt to summarize the occurrence as briefly as possible but will be glad to furnish additional details if needed.

Approximately 1 1/2 months prior to my dismissal I reported a coworker for committing major policy violation which led to his immediate termination. His actions were undeniably wrong & I was bound by policy to report them, nevertheless I was chastised for doing so. Two of my supervisors, one of whom happened to be my evaluator, made numerous derogatory remarks to and about me throughout the course of an entire shift. These remarks included calling me a "dirty b!tch," etc. It should be noted that harassment of any type is strictly prohibited by my employer and their actions were a direct violation of the code of conduct. Upon reporting their actions I was immediately reassigned to another shift pending investigation. Once on my new **** things went well and all signs seemed to point to successful completon of my probation, in fact I am fairly certain none of my current supervisors were aware of my impending dismissal as the decision was ultimately made at the administrative level.

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Hi GenaT,

 

Welcome to the forum.  Sorry to hear about your situation.  If you believe that you have been wrongly terminated, then you may want to speak with an attorney regarding your situation.  A local employment attorney can be found in the FindLaw directory.  The following FindLaw resources may also be helpful:

Good luck!

 

The FindLaw.com Team

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What was this policy violation? On what basis did this supervisor "harass" you? Was this just the one day or the entire tenure at the employer? If you continued to work for a month and a half after the report, why do you believe you were fired due to the report, especially if your employer brushed it off?

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The coworker snuck a cell phone onto his post, this may sound trivial but as far as policy is concerned it is a major violation. Prior to his dismissal he managed to convince several of our coworkers, including the supervisors in question, that his actions had be in error (i.e. that he'd brought the phone in by mistake) This was not the case yet they believed him and termed me the bad guy. We'd been at another institution at the time, same agency & rules but since we were off property they weren't privy to the facts...I'm not sure it would have mattered. The harassment lasted for several shiftsmall & involved derogatory language toward and about me. Whether it had lasted one hour or one year however our employer does not tolerate any incident of harassment of any kind. Or so they claim. The reason I believe I was terminated due to this event is that there is no other possibility. My performance and behavior was flawless in all other aspects of my employment.

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Even if that is the reason they "harassed" you, it isn't a reason which is protected by law. If they wanted to terminate you for tattling on a coworker, they can. If they want to give you a hard time , it is not illegal and there is not legal recourse. If hey choose to believe your coworker over you or treat the incident as an accident, that is their prerogative.

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You may be right in terms of the law but it isn't my intention to prove they violated the law, rather I want to prove they violated the employee manuAL (both the Commonwealth & my institution forbid harassment of any kind, as well as retaliation resulting from the report of such) as well as the policies regarding how investigations of harassment are to be conducted. In other wordso I don't want to 'sue' them, I want to get my job back.

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Employee manuals are very, very rarely contracts. Even if they did violate their own policies, they created those policies so they are free to determine when to apply them and when to make an exception. If you were still in your probationary period, your chances of being separated are fairly high if you make waves. You do not yet have any sort of entitlement to your position. You can not make them give you your job back. The purpose of the probation is to determine if you are a good fit and the employer found that not to be the case.

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Hello. I am in the process of appealing my termination and am seeking advice regarding my upcoming pre-hearing conference as well as the hearing itself. I am representing myself out of financial necessity and have several questions/concerns pertaining to gathering/organizing my evidence as well as the most effective way to present my case. If anyone would be willing to assist please let me know. Thank you!

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Here's the history of your situation so other readers can get the background:

 

https://boards.answers.findlaw.com/index.php/topic/233838-proving-retaliationwas-it-wrongful-termination/#entry573150

 

Can't guarantee any help but go ahead and ask your questions and see how it goes.

 

You've stated that you want your job back. That implies that you believe you were wrongfully terminated and believe you have grounds for a reversal of the termination.

 

Based on the comments in the last post, I don't see it, but you are welcome to express your grounds for reinstatement and describe your "evidence" that you expect to use to support those grounds.

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It would help to know to whom you are appealing. Is this arbitration, executive board, union, administrative agency, etc.? No one here can play lawyer for free and walk you through all the steps. That is what you pay an attorney for. If you have a specific question, we can try to answer it, but "what do I need to do to gather evidence and strategize an appeal", is much too broad for a message board.

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GenaT,

 

Thank you for posting again. I have merged the topic for easier reference points.

 

Further, Can you describe the harassment a bit more?  You have said that they used expletives to refer to you, were these expletives directed at your gender? Do you feel any of these comments to be based in a racial bias?

 

Have you prepared some sort of per-hearing statement?

 

-The FindLaw.com Team

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GenaT,

Thank you for posting again. I have merged the topic for easier reference points.

Further, Can you describe the harassment a bit more? You have said that they used expletives to refer to you, were these expletives directed at your gender? Do you feel any of these comments to be based in a racial bias?

Have you prepared some sort of per-hearing statement?

-The FindLaw.com Team

I'm going to attempt to describe the main incident so that it makes sense. I was working in an office type setting in a room that is adjacent to my supervisors office separated by a door that is typically kept open. The entire area is quite small so much of what is said in one room is easily heard in the other. As I mentioned before, I reported a coworker for a major policy violation that occurred while the two of us were working at another prison. The morning in question was our first shift back and our supervisors held a meeting with him in a conference room down the hall to address the incident. Immediately upon returning from the meeting they because making various remarks in exaggerated voices such as, "she is a dirty b*tch," and "I would kick that b*tches as$ if she told on me." This went on for some time, then they exited their office and began pacing back and forth in the hallway in front of my computer. I realize it may be difficult to picture the layout but the front 1/2 half of my area is basically a cage, so even though they were in the hallway it was actually in my direct view, hopefully that makes sense. They paced back and forth while looking at me and yelling, "dirty!" Later they entered my actual office area where I was working at my computer; they stood one on each side of me and began opening and closing my desk drawers. They were not looking for anything rather I'm sure it was intended as a means of intimidation. These events took place for several hours.

To answer your question, clearly I do consider the expletive "b*tch to be gender specific but not racially motivated. That being said, when I was interviewed by the internal affairs office a few days later I was asked (while being recorded) whether I felt I was discriminated against because I was female and I replied that I did not, rather that I felt the harassment was due to reporting my coworker. In hindsight, I suspect my answer may come back to haunt me. As for the pretrial statement; it is my understanding that no evidence will be discussed rather we will go over the process and set a date for the actual hearing. I have not prepared a statement but I do intend to do so.

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GenaT,

 

OK, so first take a look at the articles I list below to brush up on the area of law you are dealing with. Second, as another follow-up question, are you aware of the EEOC process and have you spoken to anyone there?

 

Gender Discrimination

Sex/Gender Discrimination: Overview

Gender Discrimination: U.S. Supreme Court Cases

 

Look over the articles and compare the concepts to your situation and see if you believe they fit. Understand that these cases are very hard to sustain so you need to be very discerning and self-critical of your situation.

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So no statements were directed at you, you just overheard two employees venting and assume it is about you? Probably not actionable. Are you saying these two supervisors stood next to you and opened and closed desk drawers repeatedly for hours? When you asked what they were looking for, what did they say? Retaliation based on tattling on a coworker is not actionable. Legally, they can be upset you tattled. It is petty, and maybe unfair, but legal.

 

If the only comments you heard which even referred to gender were not directed at you, and brief on one day, you aren't going to have a case. Did you ever report the conduct to HR or the next highest supervisor? If not, why not?

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Here's the history of your situation so other readers can get the background:

 

https://boards.answers.findlaw.com/index.php/topic/233838-proving-retaliationwas-it-wrongful-termination/#entry573150

 

Can't guarantee any help but go ahead and ask your questions and see how it goes.

 

You've stated that you want your job back. That implies that you believe you were wrongfully terminated and believe you have grounds for a reversal of the termination.

 

Based on the comments in the last post, I don't see it, but you are welcome to express your grounds for reinstatement and describe your "evidence" that you expect to use to support those grounds.

Thank you for your reply. Yes I do believe I was wrongfully terminated however in order to win the appeal I must prove that the dismissal was an act of retaliation. I'm not sure if I mentioned it previously but I was told there was no reason for my dismissal and that I had not done anything wrong. There is currently a severe shortage of staff in my former field, so much so that the governor issued an emergency raise which takes effect this week, in efforts to recruit more employees. I had a substantially more experience than 75% of my coworkers and did not receive any prior warnings or disciplinary action, furthermore my performance and attitude were far beyond expectations. So while it may be unlikely to prove I was fired out of retaliation I feel I can at least demonstrate there were no other valid reasons. Not sure if that will be enough though.

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Again, it still isn't illegal retaliation. BIG difference. I can retaliate against you because you wore a shirt I don't like, but it isn't illegal. Break a rule, and retaliation can be termination. You can plead your case, and whomever is adjudicating the hearing might see your side. It just isn't anything illegal.

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So no statements were directed at you, you just overheard two employees venting and assume it is about you? Probably not actionable. Are you saying these two supervisors stood next to you and opened and closed desk drawers repeatedly for hours? When you asked what they were looking for, what did they say? Retaliation based on tattling on a coworker is not actionable. Legally, they can be upset you tattled. It is petty, and maybe unfair, but legal.

 

If the only comments you heard which even referred to gender were not directed at you, and brief on one day, you aren't going to have a case. Did you ever report the conduct to HR or the next highest supervisor? If not, why not?

I reported their actions to the internal affairs office. I do not feel that I was fired for "tattling," I believe I was fired for reporting the harassment for the tattling. Incidentally my primary reason for reporting the harassment was that one of the supervisors was my evaluator and I feared his feelings toward me would negatively affect my performance assessment.  As for the timeline of the day in question, the opening/closing of drawers lasted approximately 15 minutes; I didn't ask what they were looking for since the drawers in question were (and always have been) empty, plus I was crying and felt that if I opened my mouth things would surely escalate. Although this did for the most part take place during one day, I felt a great deal of animosity towards me throughout the following days up until I made my complaint of the harassment. Regardless, following my harassment report I was immediately reassigned to a different shift so I assume internal affairs as well as the administration felt my complaint was based on more than misinterpreted comments. 

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Again, it still isn't illegal retaliation. BIG difference. I can retaliate against you because you wore a shirt I don't like, but it isn't illegal. Break a rule, and retaliation can be termination. You can plead your case, and whomever is adjudicating the hearing might see your side. It just isn't anything illegal.

I understand. However, in the event that retaliation (legal or illegal) were grounds to overturn the termination, do I have a case in your opinion? Please keep in mind I am not taking them to court, this is simply to appeal the decision to fire me.

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GenaT,

 

OK, so first take a look at the articles I list below to brush up on the area of law you are dealing with. Second, as another follow-up question, are you aware of the EEOC process and have you spoken to anyone there?

 

Gender Discrimination

Sex/Gender Discrimination: Overview

Gender Discrimination: U.S. Supreme Court Cases

 

Look over the articles and compare the concepts to your situation and see if you believe they fit. Understand that these cases are very hard to sustain so you need to be very discerning and self-critical of your situation.

I truly do not believe I was harassed based on my gender or any other factor covered by the EEOC. I can tell you that the DOC has a zero tolerance policy regarding harassment of any kind. Also, the investigation into the harassment was not pursuant to Kentucky  C.P.P., for instance I was never informed of the findings, etc. Not sure if any of that makes a difference where a court of law might be concerned, but perhaps it would in regard to my appeal??

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I wish I knew what combination of keys I just hit to make my painstakingly drafted reply disappear.  Yeesh.  Something to do with backspace key in combination with another (if anyone wants to chime in).
 

While an agency may announce that it has a "zero tolerance policy" for X, as a practical matter I think you're being terribly naïve to think that this is anything other than an empty statement.  That is, unless the actions involved are criminal in nature, and even then it depends on what it is.

 

I don't know how long you worked at this place, but it may be you've already with the appeal burned bridges in the hopes of achieving even a neutral reference from this place (and never mind a notion of getting the job back; if someone cared about policies as it relates to tattling and supposed harassment, they'd have addressed it before you were let go).  It may be that you know certain individuals at this place willing to give you a positive reference, but there may be policies that they choose not to disobey that indicate they need so-and-so's approval before they give a reference to an outside prospective employer.

 

As it is, the HR/Personnel folks would be free to vaguely convey that they consider you not tough enough to work in Corrections, a whiner and not adaptable, etc.


 

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LOL I sincerely don't think that was the case (as far as not being tough enough) since it was a minimum security female institution where our main objective was d**** hunting and nary a use of force team was assembled in the eight months I was there. I'm positive that my ability (or lack thereof) wasn't called into question, in fact I had substantially more corrections experience than the majority of my coworkers. I worked at a max security male prison previously, and it was while at the penitentiary that the phone incident took place (staff from the ladies prison were being utilized to assist in the staff shortage there.) I wasn't surprised (OK maybe a little) at my coworkers and supervisors negative opinions toward my decision to 'tattle' about the phone since they had very little knowledge of the seriousness of his actions. The same is likely true for everyone here so let me put it in perspective. My coworker and I were posted in wallstands (gun towers.) We were essentially the last line of defense standing between the bad guys and the public. Our sole job was to watch the wall armed with rifles posed and ready for the worse case scenario, however instead my coworker was texting on a phone that he smuggled onto his post. So yeah it may seem trivial, but would you be willing to risk the safety and security of the town you lived in? I apologize if I seem argumentative or defensive but having integrity ultimately cost me my job and to out it simply, that sucks.

Edited by Findlaw_FN
This post has been edited for language –Moderator

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