Can we terminate this person?

[dosumi]

What is the name of your state? CA

I have been a manager at my present company for 2 ½ years now.
I have an employee that is a 52-year-old white male who has been here 7 years. This person has had an on again off again relationship with a co-worker (who is an over 40 Hispanic women) before I even started at this company. This relationship as I understand it has had some physical (off company premises) as well as verbal abuse, as reported by both of them.

The woman has reported some verbal abuse several times while at work. He will call her names and make gestures; he doesn’t let other people hear or see him so it is her word against his. She has also said she was going to get a restraining order against him 2 times but it never happened?

He was written up about 4 years ago regarding this issue, for annoying other women co-workers about his personal problems with this woman.
He has been written up 3 times since I came here, by me for insubordination and 2 times related to this woman, 1 time for following her in the parking lot and then on the street while making gestures and then again, (both of them) were warned to not allow their person lives to interfere with the company business.
Now I have been informed that he was near her work area and called her names again. He was given a written warning and suspended for 3 days.
He denies the charges.

Now for my actual question, what legal recourse would he have if we just fired him?
The company seems to be afraid to just let him go under the At Will clause in our manual, part of their fear is that most of the complaints are he said she said and that he could sue due to his age.

I don’t see his age as a problem, we are both the same age and race and I have hired another employee that is in his fifties 2 years ago. No other hires since then.

This is not going away and it has been over 4 years now, it takes others and myself away from our duties to spend time interviewing employees and looking for witness. He is what I call a high maintenance employee.

He also has had personality conflicts with other department employees and management, not documented, just verbal complaints.
He also thinks people are out to get him and that is why he is having these problems.
I think it is his personality that just rubs people the wrong way and makes some employees uncomfortable especially women.

I don’t like to keep dragging this out.
I have stated on the last two write-ups that he be terminated, but our HR person shoots it down for the reasons stated.
What can I do to get HR onboard to either terminate or layoff and are HR concerns justified?
There are 4 people in this department, 2 with more years and younger and 1 with 2 years but about the same age.
Due to the problem he has with this woman he is restricted from going to certain areas due to possible contact with the women.
This will limit my use of this person to work in all areas covered by my department.
Could this be used as a reason to terminate?

Thanks
Sorry this is so long but I tried to include as much as possible.

 

[Beth3]

Now for my actual question, what legal recourse would he have if we just fired him? Nothing relative to terminating him for inappropriate behavior at work and/or harassing a co-worker. Of course he can try to fabricate some other reason such as that he was fired because of his age, race, etc. - disgruntled ex-employees often do.

What can I do to get HR onboard to either terminate or layoff and are HR concerns justified? Speaking as a senior HR person myself, it seems that the company has plenty of documentation and witnesses to support that this man should be terminated and for completely legitimate (i.e. legal) reasons.

This will limit my use of this person to work in all areas covered by my department. Could this be used as a reason to terminate? I suppose but it's not the glaringly apparent reason that should be used to terminate him - which is his continuing inappropriate behavior.

I don't know why your HR people aren't on board with this. From what you say, I likely would have authorized terminating the guy a long time ago. For one thing, the woman he is in harassing at work could easily turn this into a sexual harassment claim if she had a mind to which would put the company in a bad spot as the employer has obviously been ineffective in stopping the harassment. You might want to point that out to your HR folks.

I can only suggest you sit down with your top HR person, discuss the situation, find out exactly what their concerns are and (hopefully) make a joint plan they're comfortable with to be rid of this guy. I have seen my fair share of HR professionals who are afraid to take decisive action out of fear of an EEOC (or similiar) complaint and subsequent lawsuit. The problem is that failing to take decisive action also has it's own set of potential legal problems and most certainly has a significant impact and cost on the workplace. For example, how much management time has been wasted dealing with this bozo that could have been used on value-added actvities??? What does it say to other employees who are aware of this man's behavior over the years that the company has failed to deal with??? Employees lose respect for management when they fail to address behavior and performance problems.

Good luck.

 

[dosumi]

How to word the notice

Thanks for the reply.
I think the part about sexual harassment is part of the problem, as they have had an on and off relationship. I don’t think the HR person is 100% sure that the problems are all his fault. I guess his biggest problem is, she leaves her personal life at the door and he brings it inside.

If it were my decision I would have pulled the plug almost 2 years ago. I do believe that we have enough proof of inappropriate behavior to cover any lawsuit if one is filed, but I don’t think she wants to chance a lawsuit at all. At the rate we are preceding it will take years to get everything she wants to fire him. I think she wants him to quit but it doesn’t look like he will.

I’m looking for what wording I could use on a termination notices. That would make it hard for HR to not approve it.
Something like “You are being terminated due to the work area restrictions placed on you, due to your continued unacceptable behavior. These work area restrictions are detrimental to the efficient operation of the company. Other employees have to assume your duties in these areas and you would not be available to work in these areas to cover absent or vacationing coworkers.”

I don’t want to let this go on, I don’t like the idea of firing anyone, but this is just too much stress to handle every workday for 2 ½ years.
I not sure that this guy wont snap if something happens with this woman. I know it may happen anyway if we terminate him, but we can prepare for that. And keep an eye out for him if he try’s to return to the company.

Thanks
Again

 

[Beth3]

I think the wording on your proposed termination notice is just fine. I'd go for it - but then I would have fired the guy a couple of years ago too.

What your HR person is missing is that the longer the company lets situations like this continue, the more likely it is that a lawsuit will follow. Pretend I'm plaintiff's attorney for a moment. I'm going to alledge that since the company tolerated his behavior for X years, the behavior can't have been that objectionable. Therefore the REAL reason he must have been terminated at this late date is his age/race/national orign/whatever plausible prohibited reason the attorney wants to alledge.

Since your HR person is too chicken to address this, I suggest you get your bosses on board with the need to fire this guy and present a united front to HR. If she still won't budge, then request a meeting with HR and the company's employment law attorney. You all jointly need to make a plan how to be rid of this guy that HR/the company is comfortable with and assures the company is in a defensible position should the guy pursue a discrimination claim.

As I said before though, there's as much risk in continuing to do nothing as there is in taking action and doing what is clearly called for here.

 

[BelizeBreeze]

Here's a suggestion for a termination letter:

Dear Jerk.

You're FIRED!

Singed,
Former boss.

Now, get with it.

 

[Beth3]

If only he could, Belize. In a well-run organization, nobody is disciplined much less terminated without HR signing off first. If a supervisor or manager did that in my company, I'd have their head.

The poster's problem is that his HR person just doesn't get it.

 

[BelizeBreeze]

If only he could, Belize. In a well-run organization, nobody is disciplined much less terminated without HR signing off first. If a supervisor or manager did that in my company, I'd have their head.

The poster's problem is that his HR person just doesn't get it.

Then you need to come work for me sweet cheeks. I'd let you fire until you couldn't fire anymore. Then You could sit on my lap and tell me all about it

 

[Beth3]

So tempting...

 

[dosumi]

Thanks for your input.

I having a meeting setup with HR for Monday.
I don't expect much but I'm going to try.

If this was my company I would have fired him some time ago. But it isn't my company.

 

[cbg]

If your HR person is looking for a situation in which there is NO way that anyone can even TRY to sue, then she's never going to fire anyone ever for the rest of her years in employment. Anyone can and does sue for anything. That doesn't mean the suit is a viable one.

 

[dosumi]

Well they finally got back to me and again it is a no go. The excuse this time is because I gave him a raise last Dec. during the yearly review that we can’t terminate. Because that shows he was a good employee. I said did you read the review; I lowered the amount due to the way he interacted with other people. I will admit it was a mistake on my part, I should have reduced it to zero, but they also approve all reviews and they never said a word about that.
Now they say don’t give out a raise this time and maybe in 6 months or so they can do something. I don’t get it? I’ve never heard of a company being so afraid to fire someone. I worked as a union rep. back in the 80’s and that company would have dumped this guy years ago.
Then before I left the meeting, she threw in reverse discrimination as he is the only White in the area and that he said, “the mexicans are out to get me” Also not true. They just don’t like him, as don’t Eng. Or supervisors, production and purchasing etc etc etc.
He is also in his fifties (age).

I give up, if they don’t want to stand up, I’m not going to fight them. I will let then handle it and hope know one here gets hurt.

Thanks for all you help.

 

[Beth3]

Giving an employee who has such a significant and long-standing performance problem a pay raise does indeed send a mixed message and potentially provides legal fodder against the company if you fire him and he files a discrimination complaint. That was an unfortunate decision on your part.

As to the reverse discrimination thing, you can tell your HR Manager there is no such thing as reverse discrimination (at least not in the sense that she means.) Discrimination based on race is prohibited. Period. The fact that someone happens to be white doesn't make it reverse discrimination.

Anyway, in the meantime your options are to wait it out and deal with the frustration in the meantime or look for a new job elsewhere and hope you won't inherit any pain-in-the-a** employees the company has failed to deal with.