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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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Hi, here is a question I have been approached by HR today called

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Hi, here is a question I have been approached by HR today called into the office and informed that complaint was filed by my supervisor claiming harsh behavior and according to the company's policy he needs to take me to my desk so I can take all my belongings and help to get to my car. He also informed me that i am on paid leave and the company need to investigate. He will call me tomorrow to discuss the matter.

The day before I asked my supervisor whether I can take 2 classes needed for the license continuation. Supervisor response was that he needs to talk to higher boss. Later in the evening and after work hours my supervisor informed me that I should not ask about the class and expect the response right away.

Before asking for the classes I told my supervisor that dates are not set and I am seeking advice and guidance and always can go by alternative route of taking the class on my own. My supervisor repeated negative message "that I should not ask about the class today for the class that starts tomorrow and expect the response right away." This message was repeated to me again and again despite my explanations and my comments that this is not the message that I was trying to convey.

Supervisor called boss at home and boss suggested to me and my supervisor to call the Boss on the conference call. At the end of the call Boss asked us if all agree to the solution offered meaning that I will e-mail my supervisor about the class and e-mail the Boss and decision will be made within two days. supervisor and I agreed. Next morning I came to work and sent it e-mail as agreed. My supervisor did not show up to work and later on I was accompanied from the office by HR.

What should I expect when I will meet with HR tomorrow. He mentioned to me today that this is not termination. How should I defend myself?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Under Labor Code 2922, an employer can terminate an employee at any time, for any reason, or for no reason at all. The only exception is for unlawful discrimination based upon race, color, nationality, ancestry, religion, equal pay between sexes, sex, sexual orientation, pregnancy, age or disability.

Unless you can make a connection between your employer's treatment and some unlawful discriminatory motive, then you really have no defense to a termination or suspension.

However, if you can show that your suspension violates the employer's written disciplinary policies, then you can sue the employer for lost wages/salary. This won't prevent your termination, but it may cause the employer to think twice about suspending or terminating you.

Your facts don't appear to show any particularly bad actions on your part. Thus, the entire matter appears to be simply an excuse to terminate your employment, based upon what may in fact be nothing more than a personality conflict -- i.e., your supervisor doesn't like you, so he's decided to get rid of you -- simple as that.

Unfortunately, there's no law that prevents this outcome. The only way to defend yourself is to try to find a discriminatory motive in the suspension, because once you suggest that motive to HR, it may stop dead in its tracks and then try to figure out whether or not there is a risk that had not previously been considered.

So, for example if you are a woman and your supervisor is a man, then perhaps he has made an inappropriate advance to you, and his actions against you now, are in retaliation for your rebuffing that advance. If HR were to hear that explanation from you, more than likely you would be immediately transferred to a different supervisor and the investigation and your suspension would be stopped -- because HR would know that it had a very serious potential liability if you complain to the Department of Fair Employment and Housing (or, the Equal Employment Opportunity Commission).

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 34828
Experience: Retired (mostly)
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Customer: replied 3 years ago.
Thank you!

My HR told me that my supervisor filed a complaint like "harsh behavior" and I will be on suspension according to the company policy and he is going to contact me today.

1. If am going to be terminated what would be the most favorable wording to receive and what wording should I avoid?

2. Isn't it a harsh behavior? the fact that my supervisor called the boss and talked loudly in the open space office and not under the closed door about her understanding of what is taking place?

3.Complaint about my supervisor behavior encouragment of hostile environment was filed in March of this year by me - per HR this was not placed into the personnel file but coaching meetings took place between HR and myself and also 1st meeting was between me, my supervisor and HR as well as 1:1 checks between HR and my supervisor. May I suspect that the situation that happened recently is in retaliation of previous complaint?

thanks you for the advice.
Expert:  socrateaser replied 3 years ago.
1. If am going to be terminated what would be the most favorable wording to receive and what wording should I avoid?

A: Assuming that HR and the supervisor are not sufficiently ignorant to admit in writing to unlawful discrimination, then the next most favorable wording would be something like "Your job-related performance is unacceptable, and your services are no longer required." The least favorable wording would be that you are being terminated for gross insubordination. Performance problems permit you to obtain unemployment benefits. Insubordination disqualifies you for unemployment benefits -- though you can try to prove that the employer is misrepresenting the true reason for your termination.

2. Isn't it a harsh behavior? the fact that my supervisor called the boss and talked loudly in the open space office and not under the closed door about her understanding of what is taking place?

A: "Harsh behavior" is a legally meaningless term. "Hostile work environment" is the term used to describe harassment connected to unlawful discrimination -- and loud talking is not unlawful discrimination (unless the supervisor is shouting that you are a stupid n-word or Mexican, etc.).

3.Complaint about my supervisor behavior encouragment of hostile environment was filed in March of this year by me - per HR this was not placed into the personnel file but coaching meetings took place between HR and myself and also 1st meeting was between me, my supervisor and HR as well as 1:1 checks between HR and my supervisor. May I suspect that the situation that happened recently is in retaliation of previous complaint?

A: HR never puts anything in an employee's file that could hurt the employer. If HR believed that there was a legitimate sexual harassment complaint, or other unlawful discrimination, it would have immediately transferred you or terminated your supervisor -- because that's the only way to avoid liability.

Hope this helps.
Customer: replied 3 years ago.
It helps a lot Thank you very much for guidance in a legal world.
Customer: replied 3 years ago.
In the employee handbook in the "Employee Disciplinary Policy" under the section Suspension the following is stated:

"A meeting attended by the employee, their supervisor, Human Resources and the Department Head will be held. The infraction, which will be documented in writing beforehand, will be presented, discussed and clarified with the employee, as will the decision to suspend employment. The employee will also be informed of the length of the suspension and whether it will be paid or unpaid. Documentation of suspension will be be placed in the employee's personnel file."

Is in it violation of the company policy the fact that HR called me to the office told me to turn in the fob keys, that I am going on paid suspension, complaint was filed about "harsh behavior" and investigation will take place. I was told to pack all my stuff and was accompanied by HR to my car. What was miss out according to the policy is the following:

1. Supervisor did not attend the meeting (she did not show up to the work that morning).
2. Department Head was not present.
3. Infraction was presented by words "harsh behavior" that is all. I do not have any copy of the suspension.
4. I commented to HR that I am not a criminal and he responded that all will be investigated he is going to meet with me by phone or private if better and talk but not now. Than he is going to meet with my supervisor and talk. Probably at the end he is going to meet with both of us. What if whatever he said is not going to happen?
5. Length of suspension was not mentioned.

HR called me yesterday close to 5 pm to tell me that he was not able to read my "incident report" yet and that he will call me on Friday around 3:15 pm for interview. It seems to me that this will be an exit interview but I do not know and stressed out without knowing all the details of the filed complaint.

May I request the copy of the investigation report and know who was interviewed and how the conclusion about the incident was reached?

If I am going to file a lawsuit against employer assuming there is a good reason to do so the company policy is talking about arbitration proceeding only. what would be the approximate cost of those types of proceedings? Per the policy all parties will incur their own cost.

How this termination will affect my future employment and job search?
May I negotiate/discuss the wording with the employer for termination?
Expert:  socrateaser replied 3 years ago.
Note: You are asking a new question, and not a follow-up. I am answering in good faith -- hopefully you will appreciate the value of my response.

What if whatever he said is not going to happen?

A: The employer isn't following its own policy. HR probably knows this, but it has been instructed to get rid of you first and investigate second. Unless you raise a credible complaint of sexual harassment, you're probably terminated. HR doesn't want to officially notify you until it is reasonably certain that you don't have an unlawful discrimination claim for which you can obtain attorney's fees and costs of suit, regardless of the employer's policy

May I request the copy of the investigation report and know who was interviewed and how the conclusion about the incident was reached?

A: You are legally entitled to review your personnel file while you are an employee (Labor Code 1198.5). The law is unsettled re whether or not you can review the file after termination of employment. And, at this moment, the information you seek probably is not yet in your file. So, you have a bit of a catch-22, in that you won't be able to request review so as to see the information you want, until after you're fired.

However, if you were to sue, you could force discovery of the file so as to prove that the employer did not follow its own disciplinary policy.

How this termination will affect my future employment and job search?

A: Most large employers will not provide any information re termination other than start and end date of employment. There are too many risks of legal action by the employee which can be easily mitigated by simply refusing to release any information. However, at this time, many employers are simply excluding all unemployed job applicants. This creates a difficult situation. The EEOC is investigating the possibility that this type of blanket policy disparately impacts minority job applicants -- so, it may be outlawed at some point. At the moment, however, the policy is somewhat widespread.

What I have observed as a successful means of obtaining employment is to obtain employment with a temporary staffing agency, and using that to prove marketable skills so as to obtain full-time employment.

May I negotiate/discuss the wording with the employer for termination?

A: You can discuss whatever you want. In my experience, the more you discuss, the better HR can mitigate employer risk. I would be somewhat reluctant to provide anything to HR other than to say, "I have done absolutely nothing wrong, and my supervisor's actions seem to be related to unlawful discrimination. Moreover, the current suspension appears to violate employer disciplinary policy. You have the option of maintaining my employment or not. However, unless you are prepared to guarantee my continued employment in writing for some reasonable fixed-future period of time, then I have nothing further to say."

Now, I realize that this stance is extremely adversarial, but, once again, my experience is that HR is not calling to help you, but rather to mitigate its employer risk. Once you disclose your position in detail, HR can figure out how to mitigate the risk, and then, your suspension may turn into a termnation. That's how the game is played.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.
I will appreciate your response. Thanks again.

Just to clarify, my supervisor is a woman 30 yrs old.
During one year of employment she put me down, did not show up to the meetings timely or even forgot about meetings with me.

She communicated to me from day one (again by actions not in words) that she is not willing to work with me, she postponed any answers to my questions, she always busy when I approached her for questions, she did anything possible to postpone my understanding of the new system that we are transferring to now, no passwords were provided until I actually get into the system, no training set until I mentioned to HR, from day one she created an atmosphere very unfriendly and as I referred in my complain in March "hostile environment". Are those actions of her considered a harassment? I feel that they are.

I am a CPA and have a lot more experience than her and was able to work independently and did a great job - 16 tax returns were reviewed and filed, transactions with huge $ on-line, there is no complains about my work at all. I worked with outside auditors and tax prepares and no complains from those parties...

I think that the decision that I was hired under this supervisor was a conflict itself and my supervisor afraid that I might take over her job in the future. Is it Co's fault to create this conflicting situation in the beginning when employee under the supervision has CPA license, master degree and 10 of experience while the supervisor only 5 yrs of experience and Bachelor degree ? Is the Co responsible for its hiring conflicts?

I plan not to say much to HR when he will call and refer to the incident report that I filed which only present the facts and conversation that I had with my supervisor. Resolution offered by Boss I followed and e-mailed request with alternative dates for one class to take for the license renewal. Since than I have not talked or seen my supervisor nor Boss. I would like to ask HR to meet with Boss and help arrange that meeting.

If the meeting is going to happen I will ask for good references.

If the meeting will not happen than it will be another violation of the co's policy.

Should I quit or be fired to receive unemployment?

Expert:  socrateaser replied 3 years ago.
Just to clarify, my supervisor is a woman 30 yrs old.
During one year of employment she put me down, did not show up to the meetings timely or even forgot about meetings with me.

She communicated to me from day one (again by actions not in words) that she is not willing to work with me, she postponed any answers to my questions, she always busy when I approached her for questions, she did anything possible to postpone my understanding of the new system that we are transferring to now, no passwords were provided until I actually get into the system, no training set until I mentioned to HR, from day one she created an atmosphere very unfriendly and as I referred in my complain in March "hostile environment". Are those actions of her considered a harassment? I feel that they are.

A: Case law generally recognizes two types of sexual harassment:

  • an economic "quid pro quo," where an employee's subjection to sexual conduct is linked to the grant or denial of job benefits, such as getting or retaining a job, or receiving a favorable performance review or promotion; or
  • creating a "hostile environment," where the sexual conduct had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. See Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-2405.

However, in Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, the U.S. Supreme Court stated that: "The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility."

In other words, a hostile environment based upon sex can be a fact-based determination, which is not restricted by any bright-line rules or elements. What matters is whether there is evidence of some sort of sexual conduct or hostility to someone of the opposite sex.

I am a CPA and have a lot more experience than her and was able to work independently and did a great job - 16 tax returns were reviewed and filed, transactions with huge $ on-line, there is no complains about my work at all. I worked with outside auditors and tax prepares and no complains from those parties...

I think that the decision that I was hired under this supervisor was a conflict itself and my supervisor afraid that I might take over her job in the future. Is it Co's fault to create this conflicting situation in the beginning when employee under the supervision has CPA license, master degree and 10 of experience while the supervisor only 5 yrs of experience and Bachelor degree ? Is the Co responsible for its hiring conflicts?

A: What you are describing here suggests a different sort of discrimination, which is not unlawful, i.e., disliking a subordinate because he/she is more competent or qualified does not make for an unlawful discrimination suit. The hostility must be based upon a general dislike of the opposite sex or a specific hostility (rebuffed advances, inaproppriate touching, etc.) towards the employee suffering discrimination.

So, here, your facts tend to weaken your case for sexual harassment or sex discrimination in general.

Re conflicts, the employer is not liable for being stupid in its hiring and staffing decisions. If employers could be held liable for this sort of conduct, I'd be coming out of retirement immediately -- because I've never encountered an intelligent employer. They just do what they want, with little consideration of their decisions, and when they're wrong, they blame everyone other than themselves for their errors.

Should I quit or be fired to receive unemployment?

A: The only voluntary quit that qualifies for unemployment benefits is where the employer tells the employee to the effect of: "If you don't resign, then we will have no alterantive but to fire you." The problem with this sort of situation is that it's practically impossible to prove for most former employees. Thus, refusing to quit is generally the better move for unemployment purposes. Though, as a CPA, you may have better luck finding new employment than most, so it may be better to agree to resign in exchange for a glowing recommendation letter. If you can't get that, then my response would be "stick it."

Ultimately, the choice is yours.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 34828
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi there, thank you for all your help. I just talked to HR and he told me that my supervisor filed a complain about my physical harsh behavior. Nothing like that have happened, what should I do?

HR went over the incident report that I have prepared and confirmed the facts with me that I have stated in the report.

He also told me that he will call me shortly.

Thanks again.
Expert:  socrateaser replied 3 years ago.
The term "physically harsh" is legally meaningless. HR departments generally use legally meaningful phrases in describing employment issues, so I'm wondering where this particular HR department is getting its advice or education.

The only area where I have viewed this terminology is where severe verbal abuse of employees (harsh, unfair criticism) in front of other employees and threats to terminate or demote them are not deemed "intolerable" working conditions for the purposes of wrongful termination or unemployment...unless a continuous course of such conduct is involved. Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171.

Maybe that's where this is coming from, and the HR department thinks that by associated the term "harsh" with the term "physically," that this somehow "ups the ante" and makes your conduct subject to immediate termination.

I can't tell you what to do -- it's prohibited. I can only recite the law.

If it were me, I might ask the HR rep to kindly tell me where that terminoloy comes from, because I am unaware of any legal authority that uses such language in the sphere of employment law.

The HR rep would probably get very quiet, because he/she probably has no idea where the phrase comes from, and he/she wouldn't be able to provide an intelligent response.

I'm being pretty adversarial here, and this is your job and your coworkers. You really need to make your own decisions, because they will affect you -- not me, and I don't want you coming back here with your hair on fire, if you know what I mean.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


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Customer: replied 3 years ago.
Thank you.
Customer: replied 3 years ago.
Hi Again!

Here is the end of the story:

HR promised to call on Friday and actually called this Monday and told me that I am no longer working for the company eff 8/16/11.

I asked him what is the result of investigation of the complaint that was filed by my supervisor about the "harsh Beauvoir" and in three days word "physically" was added to it. It was all communicated to me by HR one-on-one or via phone. HR response was that there is actually no investigation and that my employment with them just did not work out.

The notice to employee as to Change in Relationship is saying "Discharge" eff 8/16/11. The other options avail on the form like "involuntary separation" is not marked. This form is not signed by HR even though it has a space for signature.

I have been accused of something that eventually there is no resolution to it and my supervisor lied. I was under stress for the last two weeks, can I sue my employer for the wrongful termination? Thanks.

Expert:  socrateaser replied 3 years ago.
The lawsuit is for breach of contract, and breach of the implied covenant of good faith. The employer violated its disciplinary policy be failing to provide you with the required meeting and documentation, and instead -- it terminated your employment.

The difficulty is "proof of facts." Assuming you can show that the policy existed, and that the written disciplinary documentation is not found in your employee personnel file, then that would prove the breach, and entitle you to damages for lost wages up until the date of trial. See, e.g., Kelecheva v. Multivision Cable T.V. Corp., 18 Cal. App. 4th 521, at 533.

Of course, we know that the employer controls the file, so if you can get an opportunity to review that file before filing suit, so that you can make a copy of the file (and bring a credible disinterested witness to review the file), then that could be used to defeat any subsequent preemptive action to try to insert the documentation into your file.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


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