Suspicious Termination in 2010

[JohnErick]

What is the name of your state (only U.S. law)? CA

I was terminated in 2010 for failing to meet a job requirement. At the time I was on CFRA, and the company was also planning to lay off 1/2 of the department.

I still believe I was fired just before the layoff due to my CFRA family leave usage. However, the company engineered a reason for my termination stating I failed to meet "adherence" or on the phone time within the desginated percentage. They 'removed' 46 hrs of time that should have counted towards this requirement and then failed me on it and terminated me. Although they had write ups and disciplinary steps noted in detail, and I was at my final warning, they state in a letter I received from them during my own discovery that failing to meet that requirement is what caused them to terminate me. They also gave this explicit reason to the Dept. of Fair Employment and Housing and the EEOC, and the Unemployment Department.

They had used this adherence system for many years before I was employed there, and anyone removing this huge chunk of time for a false reason had to have known what an impact this would have caused on that stat, hence my termination. I complained about the weekly stat updates all through APril 2010 and yet no one could find this "error" and fix it.

The state DFEH closed the case today as it could not link this to any discrimination. The last investigator I spoke with stated if they could not continue the case, there may be some cause to sue in civil court due to this 'mistake' and the damage it caused me. I've also read that if an employer gives a specific reason for termination, and that reason is false and can be proven, that there is a case?

I now have my Right To Sue letter. I don't think the option of having the EEOC examine the California DEFH's findings to be ultimately helpful in this case. Is there anything there? Would anyone touch this case at this point?

The second and last letter I received before my employer's legal dept. took over (which was from HR) they state again that if I had not failed to meet my requirement, that I would not have been fired (I would have avoided the layoff anyway). This all sounds suspicious. Any feedback please? \

Oh, one last thing, the employer's Answer to the CA DFEH also stated they treated all employees equally in these decisions. An employee came forward to tell me that she was on 2 different final warnings and went out on a leave. When she came back, they said, well it wouldn't be fair to you to fire you and wrote them off, and did so again for her as she failed 2-3 more times in 2010 to meet. Is that akin to treating all employees equally? At the time this all started occurring, I was using CFRA intermittently to care for my partner.

 

[swalsh411]

It sounds to me like you were a mediocre if not poor performer and the company fired you so better performing employees could keep their jobs. You have presented no evidence whatsoever that you were discriminated against illegally. Employers are not required to be "fair" they are just required not to illegally discriminate. This whole fairness thing appears to have you all hung up into thinking something illegal happened.

 

[JohnErick]

Hi. Thank you for your reply. Unfortunately, even though it sounds like it does in my initial post, that wasn't the case. They even stated in a previous letter that if I had not "failed to meet" that requirement, I would not have been terminated in the layoff. The terminations were determined by going back and reviewing the previous 3 years of everyone's employment history. I am guessing since they said I would not have been laid off, that I was a good employee. It's hard in the customer service field to go more than 5 years at a company without a complaint against you by a customer. I did have awards from the QA Dept for accuracy of my work. I was also, believe it or not, one of one in my department to never have a complaint against them of hanging up on customers or rude service. It just didn't add up. This is the first termination on my record since I started working 30 years ago as well. Even the HR Manager couldn't understand what was happening and made a personal appeal to Corporate. Unfortunately she couldn't even understand the printout she was reading, so it was a mute avenue with her I guess the powers that be will win this one I'm afraid. There's so much more to the whole issue that would make this more of a book than it is. I know I was a good employee. After a switch in rules and QA offices a while before the layoffs, people that had worked there 10 years or more had their records completely trashed by the time of the layoffs. Why, I don't know. We all forgot how to do our jobs overnight I guess.

Anyway, I was only asking as the DFEH Investigator told me there was a case for a possible civil suite if they found they could not help me. That's all I'm trying to ascertain.

 

[cyjeff]

Anytime a department is being cut in half any employee on their "final warning" should be keeping a box under their desk at work.

It is as simple as that.

 

[JohnErick]

I agree with you totally. However the reason I was on a warning is because they had been writing me up for absences related to CFRA Family Leave for a terminally ill family member. Everyone that was terminated, I think 15 out of the 25 was on final warning, some of them had failed in the final month, but were kept on and laid off with 10k severance. There were several people on final warning for failure to meet in quality and attendance (dual) that were kept on. Most that had state of federal family l eave were laid off... so who knows. Not sure why the DFEH didn't address that issue. I suppose that's something the EEOC can address: the write ups for taking protected family leave. I have nothing to lose there. You also need to realize that as the company started to review for layoffs, the change in rules and giving QA to a competing office made everyone look bad very quickly, even those with shining records for many years.

Anyway, I guess I should not have posted here. I can tell no one is reading what I've posted!

 

[ESteele]

First, I am sorry to hear about your terminally ill relative.

Second, the challenge here, in part, is communication. It does not appear you explained the “family leave” issue in your earlier posts as succinctly as you did in your last post. In my opinion, the leave issue could be a critical factor.

Third, if you were terminated for a number of purported performance deficiencies including taking time off to care for your ill relative, then you may have a cause of action under state and federal law. An employer can not lump together “protected” family leave with other “non-protected” performance issues to justify a discharge. Consult with an experienced employment attorney (who will likely be more familiar with the nuances of FMLA and CFRA, the state analogue, than the FEP investigator you referenced in your post).

However, you would still appear to have an uphill battle due to your evidently having overall average work performance. Taking away the family leave issue, would your work record still fall short to the records of those who survived the layoff? While the employer cannot legitimately consider your family leave as a basis for discharging you, it can objectively evaluate your performance vis-à-vis the other employees in the unit for purposes of effectuating a layoff.

If your company retained the employees with the better work records, you may not have any basis for challenging your layoff. In contrast, if your overall work record was comparable or better than one or more of your coworkers who survived the layoff, then you may have a basis for proceeding under CFRA and/or FMLA.

 

[JohnErick]

Thanks ESTeele

Thank you for the information. Just to answer a few questions you had:

My performance record was better than some that survived the layoff for sure. This is why it was so strange to me. The second and last letter I managed to obtain from the HR dept. where I worked stated I had a work record that would have kept me on had this requirement been met. I know that doesnt even remotely cover the discipline issue, but it meant I was good enough to keep on as far as actual work performance.

(The adherence requirement I "failed" was one thing I had never failed to meet in before. If you fail adherence, it means for more than 10% of a month, you were off the phones, presumably walking around the office doing nothing, which was not me. The 46 hrs of on the phone time they simply removed from my April adherence killed me. If that had been counted, as it should have, I would have been at about 98%. The minimum acceptable percentage is 90%).

I did supply print outs from the company that administered CFRA time and approved it, along with one write up that showed I was marked as unexcused). That write up resulted in .... a warning. Of course you could only have 3 days of unexpected absence in a 6 month period, of which I had 2 (which was only one.. but mute)

Usually, througoht my 5 years there, one or two in the dept may have had some level of written warnings. At the time I was let go, 15 had final warnings according to my employers Answer to the DFEH and EEOC. Most of these people were there far longer than me and had never had issues with work quality in their past - until the layoffs started approaching.

Anyway, I guess what has happened has happened. It's been along year of interviews by the DFEH and I actually was in a good mood today. I think maybe it's been a release. You brought up some good points that I will mention in my"appeal" for review to the EEOC and let them decide. I've consulted a law professor in the last 6 months that told me there was some causes to take it to court, but that my losses were too small to benefit an attorney.

One last question tho... I am guessing here that the fact they said I would not have been terminated had I med this particular requirement doesn't mean much, even if it's in a letter. All I would have is witnesses that could vouch I was always at my desk and on the phone. I wish out of the countless days each week I challenged the stats that someone would have told me they were removing all this time from the stats instead of saying nothing. No one had a clue until after the termination

Anyway, thanks again. Sorry I got a little carried away - it's hard to let a 30 year perfect record go down the drain for one company, but it is what it is.