Inapporiate Comments and Sexual Harassment Claims at Workplace
The recent court decision in McCoy v. Pacific Maritime Associate is a strong reminder that inappropriate comments, however crude they might be, do not alone amount to a viable sexual harassment claim, especially if they are not directed at the employee who is claiming harassment.
In McCoy, the claimant testified that she as harassed and shunned throughout her training period. Her complaints most centered around one of her coworkers. She testified that the alleged harasser would disrespect her by talking down to her and by putting his feet up on her work space. On one occasion, he yelled at her in front of other employees and called her stupid. Even though she complained about that incident, she was told to go home and that it was just part of the harasser’s personality. Claimant also testified that the harasser often made racially derogatory remarks and engaged in sexually offensive behavior. He would comment on the buttocks of other female employees once they left the room, using terms like “nigger ass” and “J-Lo ass.” On at least one occasion, the harasser made crude gestures toward a woman when the woman’s back was turned, imitating having sex with her.
The appellate court concluded that the factual allegations made by the claimant were insufficient to support a sexual harassment or hostile work environment claim. The court found that over the fourth month of the claimant’s employment with the defendant-employer, between five and nine comments were made, which involved dicussions of other women’s bodies outside their presence. None of the comments were directed at the claimant herself.
The court further pointed out that although crude and offensive, those remarks were not so severe and pervasive as to alter the conditions of the claimant’s employment and the conduct did not create a work environment permeated with sexual harassment. Therefore, no sufficient evidence was presented to sustain a sexual harassment / hostile work environment claim.
Discretionary Leave, AWOL and Disability Rights for State Workers
It is important to remember that while any kind of unpaid leave that your supervisor or “hiring authority” at a state agency or any other public employer may be able to provide, if you are a qualified employee with a disability or serious medical condition, who is or may be entitled to reasonable accommodations , you might be entitled to leave as a matter of law, regardless of whether your supervisor or even the chief of your department believes that granting the medical leave you need is discretionary.
To avoid being deemed AWOL (absent without leave), it is important that you provide all the necessary medical documentation to support your need for medical leave, preferably before or as soon as possible after you start your medical leave. This is because some supervisors seem to love to invoke AWOL as soon as they possibly can, even though doing that is completely discretionary. One reason that some managers may be in such a hurry to AWOL separate an employee, is because it could a convenient way to get rid of an employee who they don’t like and don’t want around. However, if you make sure that your disability and need for accommodations, including medical leave and the necessary duration of that leave is well documented by your employer before you go on leave, you will have options to seek compensation for violations of your disability rights, if your employer still decides to invoke AWOL, despite knowing everything about your disability.
Before You Appeal Your Termination or Dismissal from State Service through SPB or Skelly Hearing….
If you believe that you have been wrongfully terminated by a state agency due to disability discrimination / failure to accommodate, or in retaliation for complaining about discrimination or harassment, it’s critical that you consult with a Sacramento employee lawyer about the merits of your potential wrongful termination case before you have you SPB or Skelly hearing. The same applies to AWOL dismissal (Absence without Leave). This is because if you have strong evidence of discrimination and wrongful termination, you might be better off skipping the Skelly/SPB appeal process and instead filing a case in court. See Wilson v City of Fresno (N.D.Cal. 2011) (noting that California laws requires employees to challenge an agency’s administrative decision in order to avoid the decision’s preclusive effect in subsequent actions, and confirming that the binding effect of administrative judicial proceedings applies to FEHA discrimination and retaliation claims (Fair Employment and Housing Act).
This is because the risk of going to the SPB / Skelly hearing is that if your appeal is denied there, and you fail to overturn it through a Writ of Mandate in court (a lengthy and often expensive process), then you will be barred from bringing a wrongful termination lawsuit in court. In other words, by bringing your discrimination claims to be adjudicated through Skelly or SPB hearing, you leave the decision in your case at the mercy of the administrative law judge, and you will have no control over the outcome.
Generally, SPB/Skelly hearing is a great tool to address grievances lesser than employment termination, and while you are still employed (i.e. warnings, suspensions, discriminatory treatment, etc…).
Accusing the Union of Being on the Management’s Side is Not Going to Benefit You
Many aggrieved employees-union members cannot help but suspect that their union supports the management rather than workers. It is frustrating to be paying relatively high union dues every paycheck for years to only be ignored by the union when you need its help most, during any kind of disciplinary or termination proceedings. There is rarely any evidence to prove that the union is not acting in its members’ best interest, even if that’s true. However, worrying about the union’s motives is not going to be very productive to resolving any workplace situation you might be facing. Suspecting or accusing the union of being dishonest is simply not going to help you, so any energy invested on your part in that direction is not going to benefit you.
Instead, you should consider taking other steps with regard to your grievance and any pending hearings on your grievance or arbitration in order to advance your case with the union. Even doing things as simple as calling your union rep over and over to politely ask about the status of your case, and getting in touch with other union administators will be likely much more useful to resolving your suspension, demotion or termination than telling them how awful they are.
Remember, accusing the union of being evil or unfair or unresponsible (as true as it might be) is not going to get your grievance handled any quicker, and it’s certainly not going to get your job back. On the other hand, making them want to help you by explaining to them how strong of a case you have based on the facts rather than your feelings is likely to be much more effective. Under most collective bargaining agreement, a union has almost absolutely discretion regading which grievances to file and which cases to take to arbitration, but as they say “a squeeky wheels often gets the grease” and this does apply to how unions handle the grievances brought to their attention.
Thee Important Tips for Your Unemployment Benefits Appeals Hearing
The most recent unemployment appeal hearing, at which I represented a former employee of NASA, who has been working for that federal agency for nearly 30 years was quite surprising. Four (!) people from the employer’s side showed up to contest my client’s benefits – my client’s former supervisor, the supervisor’s manager, the human resources manager, and general counsel. All of them took at least half a day off from work in order to fight my client’s unemployment benefits claim. They showed up with a box full of tabbed exhibits and documents, as if they were getting ready for trial. Preparing all those documents must have taken quite a few hours. This is just another example of how our government wastes and misallocates time and resources. Normally, a private company would send one or at most two representative to the unemployment appeals hearing,
More importantly, this hearing reminded me of three important points that every unemployment benefits appeallant should keep in mind beore his unemployment appeals hearing:
* Your demeanor is extremely important. If you come across as someone who has entitlement mentality and who acts like the world owed him/her or everyone is out to get you, it’s going to hurt your image in front of the judge, and he is going to be less likely to rule in your favor.
* Exaggerating or understating does not help your case. Telling the judge that you have a perfect record and having the employer pull out one or more warnings or performance improvement plans right after will make the judge doubt everything else you say.
* Using cliches certain words that suggest that you paraphrase the actual facts will irritate the judge. The judges are tired of hearing such words as “hostile”, “abusive”, “bullying” etc. These words mean nothing to them and they force them to follow up every time with the same question: “What do you mean by ___________?” Instead of using those adjective, describe the events specifically and quote whatever statements were made. Another way to annoy the judge and make him like you less is to start your answers to his questions with “basically” or “to be honest with you”.
Retaliation Against Injured Nurses for Asserting Disability Rights Under ADA
One of the common types of retaliation that registered nurses experience is retaliation for filing a workers compensation claim and requesting reasonable accommodations to their disability caused by a work related injury. Imagine a nurse who is working around the clock, and whose duties, among other things, include transporting patients and other physical labor. Sooner or later, she is likely to develop back injury or serious back pain requiring her to take time off from work and/or change her job duties by temporarily transferring to another department.
That nurse’s manager is likely to be unhappy about that, since he experience his own pressures from his own management, due to being short on stuff or being overwhelmed by the amount of work and patients. That manager might also suspect that the injured nurse is faking her injury and is just trying to avoid working. That belief might be completely unfounded, or it could be based on that manager’s previous experience. He might assume that just because he knew someone in the past who exaggerate his/her injuries, the current situation he is dealing with is the same. Thus, that manager might start the campaign to trying to drive the nurse out of the hospital. Since most registered nurses are members of the union, firing them usually requires some kind of disciplinary history and paper trail, especially where the nurse is a long-term employee with history of good performance and no or little disciplinary action against her. Therefore, the manager might start writing the injured nurse up for small things that she and other nurses are usually not written up or even try to falsely accuse the disabled nurse of misconduct that she never committed.
It is critical that the nurse, who finds herself being targeted in that kind of situation, contact an reputable Sacramento workplace attorney in her area, so that they can discuss how to deal with her situation before the nurse is being suspended or terminated. This will help both the nurse and her attorney find the best legal and practical solution to the problem and make any kind of wrongful termination case stronger before the nurse is even terminated, so if and when the nurse files a claim in court or through the union grievance, she will have a stronger case for compensation for the hospital legal violations and greater chance of being reinstated to work, if she wanted to do so.
