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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7330
Experience:  Significant experience in all areas of employment law.
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My girlfriend has worked for the same company for almost 12 years as a District Manager without a single incident of counseling her personal file. Recently she had to term an employee who then made allegations that she had reported sexual harassment about her former manager to my girlfriend and she never did anything about it. My girlfriend then immediately reported this to her HR department and when asked about the alleged incident she informed them the former employee did not file a complaint against her manager. It was the manager who filed a complaint against the employee and during that meeting the employee stated her manager was watching videos on his cell phone in the back break room and had the volume up where it could be heard by herself and customers, there was no indication that the videos were inappropriate in nature of any mention of sexual harassment. This employee also made allegations that my girlfriend was playing favoritism with some of her managers. When my girlfriend spoke to her Regional manager she was told not to worry that he believed this was a disgruntled employee making waves on her way out the door.
My girlfriend then had some issues with her area manager that needed to be addressed, who is a personal friend of the Regional Manager. She emailed him with her concerns asking to meet with him, for 2 days he did not respond then sent her an email stating he wanted to meet with her the following week. The night before their meeting he then told her he needed to move the date as he needed to come down and address the allegations with the accused manger, there was no mention of any concerns regarding my girlfriend. My girlfriend thought she was meeting to discuss the concerns regarding her Area Manager but was instead place on a final warning stating they found her comments to be “deceptive”. She was told there was conflicting information based on what she stated and others have stated, when asked for an example she was told she stated she had not placed her manager on counseling for texting reminders to customers but the manager stated he had been placed on counseling. She questioned how she could be deceptive by stating she hadn’t counseled someone it didn’t make sense and asked if she had supposedly counseled him where was the counseling. She felt her integrity was being questioned and when she told him he was basically calling her a liar he nodded his head three times. She was told there was additional conflicting information but he could not discuss that information with her. The wording on her counseling was outside the normal standard for counseling’s, typically they were always told to never write “will be grounds for termination” as it tied them to termination for the next incident, they should always word it as “could be grounds for termination. Her counseling was worded “will be grounds for termination”.
The following day she responded to her counseling and documented in a separate email to HR regarding her concerns with her Regional email. In which she showed over the previous 18 months she had attempted to work with him to resolve ongoing issues with her area manager which he never addressed and that it was well known the area manger had intimate knowledge of the Regional mangers personal life that no one else was aware of, as well as a loss the area manager caused several months prior which had never been addressed by him. Upon her manager receiving a copy of her email he contacted her stating he wanted to have a private meeting with her and the Zone director the following week following their Regional meeting. She expressed concerns about being placed in a room with him and his Boss but was told if she refused to meet it would viewed as insubordination and insinuated it would be grounds for termination.
She reluctantly met with both of them and although the meeting seemed to go well and many of her concerns were addressed there was no clarification to any allegations and no changes were made to the counseling. Once they concluded the meeting she was then notified that she was being transferred to a new Division approximately 50 miles away from her current area and that the District Manger from that area would be taking over her Division. No compensation was offered for this and it significantly increases her expenses.
On a side not I use to work for this company and upon my leaving I was given an exit interview and made some very strong and factually based allegations about my Regional Manager. It was not received well and resulted in him sending my some unfavorable texts. I then had to contact the HR department and asked them to address it or I would be filing harassment. At that time I was not with my girlfriend but since then we have been dating which we did not make public. About a year ago my girlfriend was named District Manager of the year and awarded a trip to Mexico. At that time she then had to inform her Regional Manager (not the person I commented on) about
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am very sorry to hear that you girlfriend has been treated so unfairly and now been transferred to a less desireable location. Can you please clarify what you specific legal question is regarding this situation?

I very much look forward to assisting you regarding this matter.
Customer: replied 2 years ago.

I think we just want to know what here legal options are.


 


She’s been with the company 12 years without incident, being accused of being dishonest without being told what she being dishonest about or given an opportunity to respond. Being threatened to meet with two male supervisors to address her allegation (she was never given an opportunity to address her allegations), being immediately placed on final and told “will be grounds for termination”, being called a liar, then being transferred without compensation etc..


 


Does she have grounds for harassment?


 


Can they make her take this new area after all this and not compensate her?


 


Your thoughts please, what would you recommend a potential client?

Expert:  Patrick, Esq. replied 2 years ago.
Don,

Thank you very much for clarifying your question. I definitely understand where you and your girlfriend are coming from and your concerns are very legitimate.

I need to be very up front with you about the law because there is a rather simple answer to your question. Contrary to what many people believe, there is no law generally requiring that employees be treated fairly or with respect in the workplace. Such conduct is typically only illegal if the motivation for it is an employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. This would constitute actionable discrimination. Unfair treatment or harassment for any other reason is not typically illegal.

Absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate, discipline, or transfer employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law. The law permits employees to be fired or disciplined based upon false allegations of misconduct. California courts will not intervene in such instances and have made this fact clear through decades of case law.

As noted above, "harassment" is only legally actionable if it occurs due to an employee's race, religion, gender, etc., and even then, the burden is on the claimant to prove that was the reason for the mistreatment. This is rarely an easy thing to demonstrate.

In regard to compensation for increased expenses, this too is not an option because employers are not required to reimburse employees for the cost of getting to their work site. Employers are only responsible for reimbursing employees for costs they incur once they arrive at work. Put into practice, this means an employee is not entitled to reimbursement for gas to get to work, but would be entitled to reimbursement if they used their car to make a delivery to the post office during work. This leads to the unfortunate result in your girlfriend's circumstance where she is transferred to a farther worksite unfairly and on top of that must bear the burden of the additional expense to get there.

Please understand that I am in complete agreement that these things are not fair. However, I would be doing you a disservice by providing you with anything other that an accurate legal response to your question, which is of course why you are here.

If your girlfriend believes that this treatment is in any way related to her gender or one of the other "protected characteristics" described above, an individual in her circumstance should document all comments, remarks, emails, or anything else that would tend to indicate that is the case.

If she wishes to file a lawsuit for discrimination (bearing in mind that such suit can only be brought if the reason for the mistreatment is gender, race, religion, etc.) she must first file a formal complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California's Department of Fair Employment and Housing. Either the EEOC or the DFEH will issue an authorization to sue after they investigate the claim. A claimant need to file with both agencies. Finally, if an individual in girlfriend's circumstance decides to sue, they must not miss their deadline. Under federal law in California, a claimant has 300 days from an act of discrimination to file a complaint.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

Again, I am truly sorry that the law is not more favorable in regard to your girlfriend's situation, but I trust that you will appreciate my effort in providing an accurate summary of the relevant law and options.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Customer: replied 2 years ago.

No case can be made that she was previously told not to worry as they felt it was a disgrunted employee but only after she raised a concern about her ares manager (personal friend of her supervisor) was she then placed on counseling? Wouldn't this be retaliation? Would he be doing the same actions he is accusing her of?


 


I guess I'm lost becasue one of her managers recentl talk with attorney to file harassement charges against this same Area Manager (friend of the Regional Manager) and she was told she had a case. It was nothing more than her being picked on and talked about to other managers- No race, sex, etc.

Expert:  Patrick, Esq. replied 2 years ago.
Don,

Thank you very much for your reply.

" It was nothing more than her being picked on and talked about to other managers- No race, sex, etc."

That is absolutely not illegal under any state or federal law. Either you have not been told all the facts or there isn't a case. For an attorney familiar with employment laws in the state of California this is an elementary analysis.

In regard to your question about retaliation, retaliation has a very specific legal definition. Retaliation only occurs when an employer takes adverse employment action against an employee for engaging in certainly legally protected conduct, such as reporting illegal conduct of the employer (embezzlement, for example), or taking FMLA protected leave or filing for workers compensation.

Although your girlfriend's employer may have "retaliated" against her according to the ordinary meaning of the word, this would not be legally actionable retaliation. It is also not illegal for an employer to take hypocritical stances with regard to employee discipline even though this is not fair.

Please let me reiterate that I share your frustration and completely understand where you are coming from. But I would be doing you a disservice and it would be unprofessional of me to tell you anything other than what I have because I know you did not come here to be misled about what the law actually says.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.
Expert:  Patrick, Esq. replied 2 years ago.
Don,

I noticed that you gave my answer a poor rating. Please remember that you are rating my service, and not your satisfaction with the law, which of course I cannot control. I am very happy to clarify my answer if you require any additional information.

I ask you to please reconsider your negative rating of my service, as it affects my standing on this site which is my livelihood.

Thank you and I look forward to continuing to help you.

Kindest regards.
Expert:  Patrick, Esq. replied 2 years ago.
I see that you gave me an additional negative rating in response to my inquiry as to how I could improve my negative rating. I can only assume this means you re not interested in receiving any additional information from me with regard to your situation.

Please feel free to contact Just Answer customer service for a refund. I wish you the best in finding an attorney elsewhere who will tell you what you had hoped to be told here.

Kindest regards XXXXX XXXXX wishes.

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