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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38879
Experience:  Retired (mostly)
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Resolved Question:

I held a job as VP of Sales with a Fortune 500 company making $250k per year and was let go due to alleged misconduct that took place at 11p at night at a Restaurant/Bar in Denver, CO. Here's what happened... Part of my team and I (three females) were at a restaurant/bar in Denver about three weeks ago. This guy who seemed to be close to 60 was kissing a girl who looked to be about 25. Another guy about the same age was also kissing the same girl. As you might well imagine, this is not something you see every day. They were sitting on the outside patio, and our group was sitting inside right next to the window. We were all laughing in amusement at what this guy and his group were doing. Not just me, but all of us! I gave this one guy a "thumbs up" and "clapped my hands" in approval that these two guys were able to do what they were doing. I was having fun! We were having fun. In fact, it was one of my direct reports named Kelly who pointed out what was going on when she said "Oh my God, get a load of these people!" I wasn't trying to cause a problem or instigate a fight. If I wanted to instigate a fight I would have "flipped the bird" at the guy or gone outside and accost him, but that's not what happened. We were having innocent fun, and all I did was “clap my hands” and give the guy a “thumbs up” in approval. Well apparently he wasn’t amused because he came into the bar, told me he was a Hells Angel and was going to put me in the hospital. The guy proceeded to accost me while I was sitting down and put me in a headlock. Two of the members of my group left the premises, but Kelly stayed and got the guy off of me, took him off to the side and tried to talk to him. She wasn't talking to me the guy she reported to. She was talking to him (a Hells Angel) because he was the instigator and aggressor not me. Meanwhile, I was waiting for the check, paid it, and then tried to quickly exit the bar but was once again accosted by this guy on my way out. All I did was protect myself. I didn't even throw one punch. I had ONE CHOICE which was to defend myself or let this guy physically harm me. Why should I lose my job for protecting myself? This guy actually attacked me twice. I felt I was in a no-win situation and had to protect myself so I pushed him off me, and I walked out the door to go back to the hotel. Not one punch was thrown. When the Manager of the bar approached me, I explained to him that I was accosted by a guy claiming he was a Hells Angel, and I was only defending myself. In fact, one of the other employees agreed with me and told the manager that’s what had in fact happened. The Manager told me to just keep walking which I did by going back to my hotel. How is the story that I just shared with you grounds for termination for misconduct? While I understand that California is an at-will state, the result of me losing my job (because Kelly felt she was in harm’s way which was the reason given to me) seems extremely harsh and over-the-top. What I find interesting is that when the guy attacked me, Kelly (who supposedly felt she was in harm’s way) felt comfortable enough to talk to try and calm down a Hells Angel whom she didn’t even know until that night, yet she still contends she felt in harm’s way. If anyone felt they were in harm's way, it was me. I’m the one who was attacked. I was only defending myself. What also concerns me is that the incident took place 2.5 weeks before it was brought forward. If someone felt they were in harm’s way, why did it take two weeks to bring it forward? I can assure you that if I felt I was in harm's way, I would have reported it the next day so this doesn’t make sense to me. If someone else outside of my team brought forth the issue—after hearing about it second hand--why is their motive or agenda for doing so not being held under much closer scrutiny, and why am I’m not being given the benefit of the doubt? In addition, my team and I had all gone out together after the incident took place, so it’s confusing to me when I hear that someone from my team supposedly felt they were put in harm’s way on one evening, but then they somehow felt safe to go out with me after the incident took place. None of this adds up or makes any sense. In the end, while I agree it was an unfortunate situation, I do not feel I put my team in harm’s way at all. The Hells Angel who accosted me and threatened to put me in the hospital is the one who put me and my team in harm’s way. I did nothing to cause this guy to attack me. Two things can be equally true while at the same time be unconnected: 1. Someone on my team felt they were in harm's way. 2. I defended myself after being accosted by a Hells Angel because I feared for my own safety. My point being that just because someone on my team felt they were put in harm's way doesn't mean I should be held responsible for it because I chose to defend myself after being attacked by a Hells Angel.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.
You might be able to argue that you have a fundamental constitutional privacy right to be free from an imminent threat of physical violence from others, and that the employer's termination creates a "chilling effect" on your rights, because it provides you with the untenable option of risking physical assault in exchange for losing your employment.

That's probably how I would draft a complaint against the employer, if I were representing you. Your case would be stronger had you actually contacted law enforcement at the time of the altercation and requested assistance.

You could also sue the bar for negligence in failing to act to protect you as a customer. But, that's a separate issue, and you would have to bring suit in CO.

Hope this helps.

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