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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7160
Experience:  Significant experience in all areas of employment law.
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I recently resigned from my position with a contractor for

Customer Question

I recently resigned from my position with a contractor for the USAF. A long story, but I had concerns about retaliation from a fellow worker after I spoke to his boss about his constant use of long-distance at the USAF's expense and long personal (sometimes very) conversations with his daughter and others. When he discovered this, he refused to speak to me for 4-5 weeks and so forth (which was fine with me). When he made, what I feel was a passive-aggressive move (an email...up for interpretation) I became very angry and yelled. I left the office, and two days later stayed at home to ask my direct supervisor and the other employee's boss to protect me in that I felt that I might be in harm's way (either physically or through computer/personal information content). The other employee had imparted numerous stories to me about his having accosted others (including one story about simple battery that he had committed and lied to the police about it), and is, also, the Information Assurance Officer / Client (Computer) Support Technician...therefore, my concern over harm including "touching" and/or altering/deleting my work product and access to my PII, such as social security number, etc.

My direct supervisor did not speak to me for three days, and when he did, he had called me in to speak with human resources. Instead of addressing my concerns, I was asked to review and sign an Employee Consultation Form, at which point I chose to resign. The form is erroneous (actual errors such as saying that I called the other employee's supervisor to yell and him, when, in fact, the supervisor had called me). Through use of out-and-out fabrications (describing conversations that the other employee and I held...never happened, as the other employee refused to speak to me); use of prejudicial language (such as "the other employee was neither loud nor belligerent", "(he) left the room "quietly") -- all irrelevant to counseling ME. The form, also, said that I said, "(he) is out to get me" (which I may have said) AND "describing how these (other) personnel were also conspiring to hurt her" (which I NEVER said - ABSOLUTE -- One way to prove that I did not say this is that my supervisor was speaking of individuals. As a stickler for proper grammar, I would never have used the word "conspire", which would apply to multiple persons!). This suggests to me that my supervisor was attempting to paint me as paranoid. Which I am not, just aware of my surroundings and a very good judge of character! And, there is much, much more in the counseling form that is erroneous or intentionally incorrect.

My question, as I chose to resign rather than be bullied by my employer, do I have any case for 1) the fact that they refused to address my REAL concerns of a hostile co-worker and chose to suggest that I needed anger management; therefore, impelling me to leave; 2) libel, in that the form, in no uncertain terms, is suggesting that I am mentally ill (paranoid). P.S. My immediate supervisor had previously discussed an employee who suffered a psychotic break (said that voices were coming out of his badge), laughing at the man's disease!

I appreciate your feedback.

Linda O.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  NonEstateEsq replied 1 year ago.
Hello and thank you for using the JA website. Please remember that this site is intended to provide general legal information only.

In order to answer your questions, I need some additional information from you.

1. When you refer to a hostile co-worker, how are you defining the term "hostile"? What did the co-worker do?

2. To whom was it stated and by whom that you were paranoid?

3. Lastly, do you have an employment contract?

Customer: replied 1 year ago.

1) Please see the first paragraph in my initial question, above.



2) As I wrote above, on the Employee Counseling Form, which was provided by my supervisor to me and to the H.R. representative (who was on a conference call with us). I am not certain who else would have seen this form. My supervisor did not specifically write that I am paranoid but, wrote a) that I said of the other employee that "(he) is out to get me", and; b) "describing how these (other) personnel were also conspiring to hurt her". I ABSOLUTELY never said that others were conspiring to hurt me. So, in making this comment, I felt that my supervisor was attempting to paint me as paranoid.



3) What would constitute an employment contract?

Expert:  NonEstateEsq replied 1 year ago.
1. Are you saying that the only behavior was general angry behavior? To clarify then, none of it was based on your age, race, gender, religion, disability, etc?

2. Referring to the Employee Counseling Form, was that given to anyone outside of work though? Or was it all internal and no third parties involved?

3. Did you ever negotiate a written agreement with your employer before you started working there or are you an at-will employee?

Customer: replied 1 year ago.

1) After five weeks of not speaking to me (not one word), the employee wrote me an email which suggested that he had come into my area to access information (a physical file) that he had absolutely no reason to access and then made commentary on the file being errored. He had "touched" my work; I believe for the purposes of saying that he COULD "touch" my work. I believe that this behavior would be considered as passive-aggressive. He was very angry about my having told his supervisor about his personal phone usage. Again, I was concerned (from MANY stories he had told me about his accosting other people, including physically) that I notified my employer that I was concerned that he might retaliate including physically or through touching my personal information to which he was entitled access by virtue of his position.


 


2) I do not know if the counseling form was seen by anyone outside of my company. However, I believe that the our H.R. department would be considered the "third" party with regard to libel. If my supervisor could be libel for defaming me to my company, would my company, also, be responsible for his behavior toward me?


 


3) California is an at-will state. I did sign acceptance of an offer for employment (I cannot put my hands on it right now); but, since California is an at-will state, I would assume this applies.

Expert:  NonEstateEsq replied 1 year ago.
Unfortunately, I now see that you are in CA and the website has a different category for CA employment law questions and so I will have to have it moved over there. Only certain legal experts are allowed by the site to answer CA law questions.

Customer: replied 1 year ago.


Thank you.

Customer: replied 1 year ago.


Do I need to resubmit this question or will someone answer me when available? I have been waiting awhile for a response.


 


Will you be charging me for your responses?


 


Thank you for your feedback.

Expert:  Wendy-Mod replied 1 year ago.
Hello Linda,

I am a moderator for this topic. We really can't predict how long it will take for another Professional to answer your question.

As far as your deposit, if you don't get an answer you can cancel your question and you can leave your deposit in your account to be credited against future payments or you can ask for a refund.

Thank you for your continued patience. We will continue the search for a professional for you.

Regards,
Wendy
Expert:  Patrick, Esq. replied 1 year ago.
Hello there. I am a California attorney and am very happy to answer your question.

The reason why the previous expert was asking if the hostilities directed toward you were motivated by age, race, gender, religion, disability, etc., is because the law only recognizes claims for "hostile work environment" is the hostility is motivated by what the law defines as a "protected characteristic."

In California, the "protected characteristics" upon which claims for hostile work environment can be based are race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

From your description of the behavior of this particular co-worker, it does not seem as though the hostilities were motivated by any of these protected traits. However, if you could demonstrate that was the case, then you would have a valid claim. Otherwise, it is with regret I must inform you that there is no law generally prohibiting passive aggressive, rude, or harassing behavior in the workplace, and so the behavior you describe, while understandably upsetting, would not ordinarily be actionable.

With regard to a claim for defamation, the main problem I see relates to damages, which are a necessary component to any civil cause of action. Damages will only arise in a case for defamation if the defamatory statements are made to a third party, which again is why the previous expert inquired about that.

While you are correct that HR may qualify as a third party, the question outstanding is whether HR's reading of these statements caused you to actually incur a damage of some kind. If you were demoted, fired, or disciplined as a result of these false statements, then that would certainly constitute a damage. But the mere "knowing" that HR has read these statements would alone be insufficient to bring a claim.

Even if it was sufficient, the damages would be nominal and certainly be less than the money you would spend to pursue the claim in civil court.

I am sorry to deliver what you may consider to be bad news regarding the viability of these claims. Nonetheless, I trust that you will appreciate my limitations is explaining how the law actually operates under these circumstances, despite the law not being favorable to your circumstances. Indeed, to provide anything less would be unfair to you and unprofessional of me.

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 1 year ago.


Just two items..


 


Would it be helpful if I said that "I believe" that the badly-behaved other employee is a mysogynist?!


 


Also, I was being "disciplined (with my supervisor) USING these false statements".


 


I am more interested in making someone/anyone at my former employer aware that my supervisor was/is very careless in what he says and what he puts in writing (prevarications & erroneous information). I was harmed in that I was told that they would not protect me with regard to potential physical harm or damage to my work product or personal information. (I forgot to mention that the other employee had told a mutual employee/friend that he wanted to "smash in my face").

Expert:  Patrick, Esq. replied 1 year ago.

Thank you very much for your reply.

"Would it be helpful if I said that "I believe" that the badly-behaved other employee is a mysogynist?!"

From a legal standpoint, this would not have any impact. The legal questions are simply whether false statements of fact were made to third parties which caused you to incur injury, and whether the behavior of this employee is so extreme and outrageous as to constitute IIED. Him being a mysogynist does not tend to prove or disprove these things and so would be irrelevant.

Also, I was being "disciplined (with my supervisor) USING these false statements."

This is important, as it would constitute a form of damage that occured as a direct result of the defamatory statements. This is the sort of thing you would need to prevail on a claim for defamation. Of course, from a practical standpoint, you will still be tasked with proving that you did NOT in fact make these statements, which may be difficult to do if it just comes down to word against word, but this is the sort of damage that you would need in order to have a claim.

Finally, since this employee has made threats of violence against you, you may also be able to obtain a civil harassment restraining order. Visit this link for information on the process: http://www.courts.ca.gov/documents/ch150.pdf

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.

Kindest regards.

Customer: replied 1 year ago.

Legalpro54,


 


Actually, I was just teasing about using the mysogynist angle...


Unfortunately for my former supervisor, there are so many items on the counseling form that CAN be proved to be false.


 


I thank you VERY much for your assistance (and your excellent grammar)!


 


Please throw me back to the smiley faces for rating to finish.


 


Linda O.

Expert:  Patrick, Esq. replied 1 year ago.
Sorry I didn't pick up on the sacrasm, there! Laughing

A prompt should come upu for you to rate my service slong with this message. A positive service rating is very much appreciated.

Best wishes to you.
Patrick, Esq., Lawyer
Satisfied Customers: 7160
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi!


Yesterday, I rated your service as excellent...so, not certain why I received your request for a rating today.


 


Nonetheless, have rated your service, again, as excellent.


 


The $5, $45 fees have been deducted from my account, and an additional $10 tip has, also, been deducted.


 


Thanks again!


 


L.O.

Expert:  Patrick, Esq. replied 1 year ago.
I'm so sorry if you erroenous received additional requests to rate. Those are not sent out by me personally but rather the system itself.

Have a pleasant evening!

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