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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6809
Experience:  Significant experience in all areas of employment law.
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I am a manager for a large telecommunications company. I recently

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I am a manager for a large telecommunications company. I recently had a run-in with a service representative on my team who was being disrespectful and disruptive. She began arguing with me and raised her voice to the point of yelling. I told her that I could not discuss the issue any further at that time and I slowly began walking away from her desk. At one point, I was four desks away from her while she was standing, waving her hands in the air and yelling at me, creating a disturbance in our call center. After asking her four separate times to stop talking to me, I finally used stronger verbiage and told her to shut her mouth. She has since gone out on leave and has filed an EEO complaint against me. Does this rise to the level of an EEO violation in any form? And if so, how can I protect myself?
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 10 months ago.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear about your altercation with this employee.

When you say this employee has filed an EEO complaint, do you mean that she filed an internal complaint with HR or that she filed a formal complaint of harassment with the Equal Employment Opportunity Commission?

When you told this employee to shut her mouth, did you use any language that could be construed as a racial slur, derogatory comment about gender, or anything like that?

I very much look forward to helping you on this matter.
Customer: replied 10 months ago.

To the best of my knowledge, she has only filed an internal complaint at this time. My EEO department has not yet advised me of the nature of her complaint. They simply advised me that she had filed a formal complaint and that I will be contacted on September 25th for an interview regarding the allegations.


I absolutely did not use any language which could be construed as a racial slur, derogatory comment about gender, or anything like that.


I am very concerned because this employee has attempted to sue the company previously for a trumped-up charge, claiming that mold spores on the windows made her sick. Which I think speaks to her lack of character.


I am a white male 50 years old. She is an African american female about 30 years old. There were multiple witnesses to our altercation in the office. Unfortunately, one of the main witnesses is her personal friend who sits next to her. I can not attest to the honesty of her friend who should be considered biased witness at best.


My deepest fear is that the employee will realize that her complaint doesn't have much weight on it's own, and she may fabricate a story to try to hurt me. My former boss left the business on bad terms because a woman in our office claimed that he "touched her hand" while she was using her mouse. That employee is a drug abuser and one of the worst employees in our office. Yet it cost my boss his job and he was an outstanding success as a manager.

Expert:  Patrick, Esq. replied 10 months ago.
Robert,

Thank you very much for your reply. I completely appreciate your concerns.

There is no requirement of civility in the workplace and no law that prevents managers or co-workers from being rude, verbally aggressive, or even downright nasty.

Not to say that your behavior constituted any of these things, but such conduct is only prohibited if it relates to 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. In those cases, the law recognizes a claim for "hostile work environment" if the behavior is sufficiently "severe or pervasive" to materially alter the terms of employment.

Given the circumstances you describe, it would seem absolutely implausible that your behavior would give rise to a claim for hostile work environment--even with embellishment. Assuming you did say something that could somehow be construed as relating to race, such comment in isolation would certainly not be "severe or pervasive" enough to support legal action.

The best course of action under the circumstances is to be open and honest about what happened and to cooperate fully with any investigation. If this employee fabricates a lie about you using racial slurs and that results in adverse employment action taken against you, you would have a legal cause of action for defamation against her which would entitle you to damages.

Though it is purely anecdotal, I can tell you that employers and HR departments tend to take the side of the manager. Thus, unless this employee fabricates something completely different from what you actually said, there is little chance that this incident will result in legal problems, job loss, or discipline for you.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 10 months ago.

Thank you for your response. The only part that I feel uncertain about is the fact that she may realize that doesn't have much of a case and attempt to add more "dirt" to get me in trouble. The only other piece of dirt that she may want to add to her complaint is this; Another girl in our office who is our common friend, was looking at pictures on my cell phone. She decided to scroll through ALL of the pictures on my cell phone and we she found some that were sexually explicit, she showed them to my service rep. She thought it was a funny joke but I got the phone back and found that she had left the explicit picture open, I realized what she had done and I was embarrassed. Since I didn't share this with my employee, and another rep took it upon herself to scroll thru my private pictures. Does this put me in a bad spot? Since this is directly related to my original question, I wanted to present my concerns to you in their entirety. Thank you in advance for helping me I really appreciate your assistance.

Expert:  Patrick, Esq. replied 10 months ago.
Robert,

Thanks for the reply. It's my pleasure to address any followup questions you may have concerning this situation, so please do not feel as though it is a bother.

As I noted in my initial answer, in order to prevail on a claim for hostile work environment, an employee must demosntrate harassment of a sexual nature that is so "severe or pervasive" that it materially alters the terms of employment. That's the actual legal definition.

Of course, what satisfies this definition is a "question of fact," meaning it's ultimately up to a jury to decide on the basis of the unique facts of each situation. Claimants can fabricate lies and there's no way to stop them from doing that, but their credibility can also be impugned by attacking their character or introducing contrary evidence (your own testimony, the testimony of co-workers, etc.).

There is really no way for me to predict how the particulars of your situation will play out. What I can say, however, is that even taken in the worst possible light, the facts you describe simply do not appear to be sufficient to support a claim for hostile work environment/sexual harassment which can form the basis for any sort of damages award against you.

Again, please feel free to let me know if you have any further concerns.
Customer: replied 10 months ago.

Last part: The only other piece to my original question that I need to know is... what can/should I do at this time to take proactive action to protect myself. Or should I simply tell the truth to the EEO investigator and trust that everything will be okay. I'm sorry to be nit-picking here, but this is 14-year long career at this point and if I loose this job, I loose my beautiful home and everything else, so I have a TREMENDOUS amount on the line here. I hope you can understand how incredibly stressful and scary this is for me. Not to mention very frustrating considering the fact that this employee started the altercation by sticking her trash can out into the aisle way and then fought with me about placing it safely under her desk or the desk nearest to her. Thanks again. I'll stop bugging you after this.

Expert:  Patrick, Esq. replied 10 months ago.
Robert,

It's truly no problem. I can only imagine the stress of the situation.

Really the very best thing you can do is be honest and forthcoming. Employees do not have a "right to an attorney" the way individuals who are accused of crimes do, and few laws govern or restrict an employer's right to conduct investigations concerning alleged misconduct. To a certain extent, you are at the mercy of your employer, and for that reason, it is best to "lay your cards on the table" so to speak. Be honest, open, and perhaps above all, keep your cool.

Maintaining your composure and professionalism will ensure that you present yourself in a manner contrary to the allegations which appear to be made against you.

Beyond this, there is really no guidebook or roadmap as to how to proceed. Each circumstance is different, but again, the most important thing is to be collected, professional, honest and open.

I hope this provides you with some clarity and perhaps a small amount of piece of mind moving forward. I wish you the very best in resolving this matter.

If you do not have any further questions, I'd be most grateful for a positive rating of my service so that I may receive credit for assisting you.
Patrick, Esq., Lawyer
Satisfied Customers: 6809
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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