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My boss made a statement in a meeting at which I was not present…

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My boss made a statement...
My boss made a statement in a meeting at which I was not present that I had a 'personality flaw' of not communicating effectively. She further stated, as though it was a fact, that this was the reason I was not selected by a search committee to replace her when she retires in a few months. Do I have legal recourse here?
Submitted: 8 years ago.Category: Employment Law
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6/12/2010
Employment Lawyer: socrateaser, Lawyer replied 8 years ago
socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 40,150
Experience: Retired
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Would any of the people in that meeting be willing to testify in your behalf as to the boss' comments?

 

Do you have any documentary evidence to prove that the boss admitted making the comment?

 

Was the statement made as a "fact," or as an "opinion?"

 

Thanks in advance.

 

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Customer reply replied 8 years ago

Would any of the people in that meeting be willing to testify in your behalf as to the boss' comments?

-Unsure. I did not ask them. But I did ask them if they remembered her making the statements. Two told me they did.

 

Do you have any documentary evidence to prove that the boss admitted making the comment?

- No documentary evidence of her admission or of her original statement. Both were made in converstation.

 

Was the statement made as a "fact," or as an "opinion?"

- That's what's bothering me the most. The statement about my 'flaw' was clearly an opinion and was probably taken as such by those present. Although I disagree with it and she could not provide me with any evidence to support that statement, I understand I can't prevent her from having whatever opinion she wants. On the other hand, the statement that that's why I didn't get the job is where I feel she went too far. That was presented as a fact in the meeting even though I had never been told that by anybody before. Even if that was the reason I was not hired (and I'm not convinced it is without ever having been made aware of this until now) can she share my personal information with my colleagues without my consent?

Employment Lawyer: socrateaser, Lawyer replied 8 years ago

Okay, well, botXXXXX XXXXXne, it's all about what you can prove in court that matters. Without a witness to testify for you, or documentary evidence, it's your word against the boss, and tie goes to the defendant, which is the boss in this case -- ergo, no case.

 

You could file a charge of disability discrimination with the Equal Employment Opportunity Commission, on the theory that using a "personality flaw" as a rationale for a no-hire, suggests a mental health disability, and that is an unlawful rationale under federal law. But, if the EEOC cannot get one or more of your witnesses to confirm the original conversation, then your case will be dismissed and that will be the end of things.

 

The good news is that the employer is prohibited from retaliating against you for filing a complaint. But, as I'm sure you're aware, employers have ways of making your life a living hell, when they think you are trying to get any leverage, so if you go this route, be prepared for WWIII, because that's what you're likely to get.

 

Hope this helps.

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Customer reply replied 8 years ago
Socrateaser,

Thanks very much. Just to make sure I got the idea: For the sake of argument, assuming I did have documentary evidence and witnesses willing to testify, is this a 'real' legal issue, i.e. is there likely a legal basis on which to take action here or is it just a case of very bad manners? In other words, even if I did have proof would I have some legal grounds for taking action? (Outside of the mental health disability route - I don't think anyone took it to mean that.)
Employment Lawyer: socrateaser, Lawyer replied 8 years ago

There are two possible legal actions, based on your facts: defamation of character and unlawful disability discrimination.

 

In order to prove defamation, you must show that the boss made a false statement of fact, of or concerning you, to a third persion, which caused damages.

 

You stated that you believe the boss stated an opinion. If so, then there is no defamation. However, what matters is not what you believe, but what was actually said, and how it was perceived by the listener(s). Once again, you need witnesses who will testify on your behalf and who heard the boss state that it was a fact that your promotion was derailed by his statement that you have a personality flaw. Further, you must prove that you have no such flaw -- though the initial burden is on the defendant in a defamation action to show that the statement is true, assuming it was intended as a fact, rather than as an opinion.

 

Concerning disability discrimination, it doesn't matter how others took the statement. What matters is whether or not the boss believed that you have some mental health defect that prohibits your promotion, and that such a defect could be reasonably accommodated so as to permit you to perform the essential functions of the job.

 

Stating that someone has a personality defect is more than simply a comment about their ability to perform a particular job. It's a statement that there is something mentally defective about the person, which places that person into a class of mentally defectives, who cannot be redeemed. This is unlawful discrimination. Period.

socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 40,150
Experience: Retired
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Customer reply replied 8 years ago
Thanks very much for your help.
Employment Lawyer: socrateaser, Lawyer replied 8 years ago
You're welcome and good luck.
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