Desperate Housewife Sues Abusive Boss For Hostile Work Environment

Former “Desperate Housewives” star Nicollette Sheridan filed a lawsuit against the show’s producer, Marc Cherry. Sheridan’s suit accuses Cherry of

“creating a hostile work environment on the set and behaving aggressively and abusively toward the cast and the writers.”

She claims that her character was killed off in retaliation for resisting his abuse, and she seeks $20 million in compensation.

Three Hostile Bosses Ordered to Pay $185,000 to Two Employees Who Fought Back
In Georgia, the former DeKalb County CEO Vernon Jones and three other people were ordered to pay two former employees $185,000. The former employees alleges that Jones created a hostile work environment based on race within the County’s Parks and Recreation Department.

The trial was closely watched because Jones is currently running for Congress, and was the first African American CEO of the County. In one deposition excerpt, a co-defendant (County Parks Director Marilyn Drew) was asked the following questions about Jones:

Q – Have you ever had any conversations with him in the office?
Drew – Yes.
Q – And were they of a threatening nature?
Drew – Yes.
Q – Okay. And on how many occasions?
Drew – I don’t know; a lot.

Not only did this bullying boss lose in court, but the managers were individually ordered to pay money to the two prevailing ex-employees. Jones was ordered to pay $27,750. Marilyn Drew, former parks director, was ordered to pay $55,500. Richard Stogner, top aide to Vernon Jones, was ordered to pay $27,750. You can read the full story HERE.

We Are All Disabled Now
Thinking is a major life activity under the ADA. Head v. Glacier Nw. Inc., 413 F.3d 1053 (9th Cir. 2005)

Supervisor to Employee: “Report Me and I’ll #$&*@! You”
This is a

brand hostile work environment lawsuit

was just filed on Friday, regrettably here in my home state of Oregon. Many law firms subscribe to a service that summarizes the newly filed cases. You’ll see why this one, Holmgren v. Oregon City, caught my attention:

Employment discrimination action. The plaintiff’s supervisor threatened to discipline her for reporting male coworkers’ harassing comments, including a discussion about a coworker not having a girlfriend because he couldn’t “hit the crack,” talking about women not liking to get “fucked in the ass,” and discussing “boners” and a “two inch dick.” When the plaintiff told her supervisors that her daughter needed surgery, one asked, “what did she do, get knocked up?” $600,000.

Pregnancy Discrimination and Retaliation Trial
I want people to see how trials actually end, when employees do sue their bosses and get all the way to trial. Note, these are rare since 95+% of cases settle or are dismissed prior to trial.

But here is the second trial result in today’s post. This was a six day trial filed by a woman who worked for a cabinet company who received positive reviews from her boss until she became pregnant; then her workplace turned hostile and her boss made up a reason to fire her.

Kemp v. Masterbrand Cabinets:Employee worked for Masterbrand as a temp from October 2003 until May of 2004. Employee then became employed by Masterbrand in May, 2004, as a material specialist, and worked the second shift from 3:15 p.m. until 11:45 p.m., Monday through Friday. Employee had performance reviews at thirty (30) and ninety (90) days, in which her supervisor, Linda Durrett, rated Employee strong or good in every category of her evaluation. On or about November 2004, Employee became pregnant. Around January 6, 2005, Employee’s doctor put Employee under lifting restrictions of less than 30lbs. The Employee gave her boss a copy of the doctor’s note. Between the time that the company became aware of Employee’s pregnancy, on or about January 6, 2005, and March 18, 2005, Employee claimed she was subjected to discrimination by her supervisor, Ms. Durrett. Ms. Durrett tried to get Employee to leave early on March 12, 2005, so that the company would have “grounds” to terminate Employee. After this scheme failed, Durrett terminated Employee on March 22, 2005 when Employee left on time. The company’s reason for Employee’s termination was Employee had not checked out with her supervisor prior to leaving at the end of her shift. Employee contended that the company conspired to terminate her because she had opposed the pregnancy discrimination in the workplace. Employee brought this action for pregnancy discrimination, retaliation for opposing pregnancy discrimination and wrongful discharge. Injuries: Economic damages only. Specials: Lost Wages $24,200; General Damages $18,000.

Harvard Says Bullying Bosses Are Insecure People
Visitors to this website may want to file this one under “tell us stuff we didn’t already know.” But you’ve got to admit, it never hurts to have the Harvard Business Journal weighing in on our side!

A recent article there states that research shows that bully bosses don’t harass employees just because of the bosses personality and their power. The Review observes that it takes one more ingredient to create an explosive supervisor:

…it was the simultaneous pairing of power with feelings of inadequacy that led people to lash out. In our studies, the power holders who felt personally incompetent became aggressive, not because they were power hungry or had domineering personalities but because they were trying to overcome ego threat. Put simply, bullying is a cheap way to nurse a wounded ego.

The article ends with some advice to hiring managers, which boils down to “hire secure people”. Here’s a snippet of my reply comment at the Harvard website:

Mr. Fast, I applaud you for pointing out that bullying takes money off an organization’s bottom line. I hope that your message takes root, and that management applicants will be screened for the traits you identify.

Until that day, thousands upon thousands of people lay awake at night, feeling sick and nauseous with dread about what form of humiliation they will have to endure the next day — and whether they will be able to endure it. These people can’t wait for new laws and new hiring practices — they need help now.

You can see the full article and all the replies for yourself, HERE

Of course, many people come to this website because their company DID hire insecure people into positions of authority. If you are suffering through such a situation, you may want to consider getting my e-book, Work Laws Exposed, which you can purchase on the Store Page.

When Your Bully Boss is Behind Closed Doors, Do You Want to Know What the Lawyers Are Telling Him?

In Episode #9 the Undercover Lawyer (Curt K.) reveals 10 things that bosses do to their employees that cause hostile work environment lawsuits. (Podcast Player below). Even defense lawyers get mad at bad bosses, because bad bosses cause lawsuits.  This is explosive information that big business pays top dollar for; Curt himself regularly charges companies $1,000+ for “How Not to Get Sued” seminars that cover this same material!  But now you get it for free, plus Curt’s explanation of how employees can use this information for their advantage.

In the Quick Tip Curt covers how the new Federal Bailout Program includes money that you get right now if you’ve lost your job.  It’s the COBRA subsidy, which requires your employer to pay 65% of COBRA premiums, so that you pay only 35% of the premium to maintain health benefits after leaving a job.  Before this you would had to have paid 100%.  You can get more info here: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTML

JOIN THE RESISTANCE!

And the most exciting news, the Members Only Private Forum of the Undercover Lawyer Academy is now available for only $1 for the first month (and $14.97 per month thereafter).� This is a giant discount from the usual $47 per month that will go into effect in about 30 days.� But if you sign up now, you lock in the $14.97 price for life (even after the full Employment Law Academy opens with tons of powerful new content).

You can take advantage of limited time $1 offer by clicking here: http://undercoverlawyer.com/amember/signup.php

Curt’s Article About Hostile Work Environment Wins Award For Best New Hub!

Curt now has EIGHT powerful articles on Hubpages, each one contains information you should not be with out in dealing with a bad boss or hostile work environment.

One article was nominated for “Hub Nugget”, meaning Best New Article — and it won!  Thanks to everyone who took time to vote for the article, “Hostile Work Environment — Why HR Doesn’t Care About You”.

Here’s a link to the article if you haven’t seen it, with links to the other 7 articles (or “Hubs”) after that.

http://hubpages.com/hub/Hostile-Work-Environment—-Why-HR-Doesnt-Care-About-You

http://hubpages.com/hub/Hostile-Work-Environment

http://hubpages.com/hub/Hostile-Work-Environment-At-Will-Employment

http://hubpages.com/hub/Hostile-Work-Environment-Protect-Youself-From-a-Bully-Boss

http://hubpages.com/hub/10-Signals-The-Boss-is-Bullying-You

http://hubpages.com/hub/Employee-Rights-Can-I-Sue-My-Former-Employer-For-Giving-Bad-References

http://hubpages.com/hub/Employee-Rights-Can-Your-Bully-Boss-Abuse-You-With-Bad-References

http://hubpages.com/hub/What-is-Workplace-Retaliation

Gradual Workplace Harassment Is Not Legal Harassment

You complain to your manager or to H.R., and what do they tell you?  There’s no evidence that you are putting up with an illegal hostile work environment.  But you are having trouble sleeping, you feel sick when you think about work, and even though you try not to you spend most of your time worrying about work, you think about little else.

How can your boss or H.R. excuse this?  How can they possibly claim that nothing is going on?

Acme Markets said that Gloria Nieves was just complaining about good old fashioned teasing among co-workers.  Some of it may have been insensitive, but Acme claimed that no one thing that happened to Gloria at the deli where she worked amounted to illegal harassment.  But Gloria knew differently.  She took Acme to court, where the court said even when single incidents don’t amount to illegal harassment, courts consider everything that happened to Gloria “as a whole” before deciding whether or not the company’s treatment of her added up to illegal harassment.

Find out whether Gloria won or lost after the court ruled that Acme should have “viewed as a whole” all the harassment that Gloria was putting up with.

The Gradual Harassment of Gloria Nieves

Gloria is Hispanic and born in Colombia.  She began working part-time at Acme Deli in Middleton, Delaware in November of 2001.  When Acme opened a larger store in Middleton two years later Gloria applied for a full time “senior night associate” position in the new store.  Based on her seniority Gloria got the full time job working nights at the new location.

The hostility toward Gloria began as soon as she began working full time at the new store.  She was told that she wasn’t allowed to speak Spanish to Spanish speaking customers.  Her manager wondered out loud how Gloria could have possibly won the full time position because her “English isn’t good.”  Another time a co-worker questioned whether Gloria had a “green card”.  Gloria was called “stupid” when she asked questions and was treated like she had never been educated.  When the topic of drugs came up, a co-worker would say “ask Gloria because she’s from Columbia.”  When Gloria’s husband Emilio came to the store she had to listen to them say “de plane, de plane,” referencing a Hispanic character from the show television show “Fantasy Island.”

Gloria complained to management and to H.R. about all of this, of course.  Management’s response was to simply tell Gloria “Don’t worry.”  In the eyes of management none of this harassing conduct amounted to an illegal hostile work environment.  It was all just good fun and joking around.  Her complaints were not taken seriously at all.  For instance, once when Gloria made a complaint to a supervisor, the supervisor simply waited until Gloria turned her back to walk away, and then he started laughing at her — and encouraged Gloria’s co-workers to do the same.  Gloria was even called “Chihuahua” from the Taco Bell commercials.

Gloria began to cry frequently because of the workplace harassment.  The Acme Deli, however, blamed her crying on “marital problems.”  Gloria finally went from work to the emergency room due to chest pain, caused by the hostile workplace she had endured for so long.

Instead of taking responsibility for Gloria’s deteriorated physical condition, Acme Deli accused her faking her illness.  The next week the Deli Manager suspended Gloria.  Gloria filed harassment claims with the EEOC based on her national origin.

Acme Deli responded to Gloria’s EEOC complaint by arguing that none of the conduct Gloria complained of was “severe enough” to be considered unlawful.

The EEOC sent a letter to Acme stating that it’s investigation indicated that Acme had engaged in discriminatory practices and violated employment laws.  After the EEOC scheduled a conciliation (settlement) meeting, Gloria filed suit in court.

How Did Gloria’s Harassment Case Against Her Employer End?

In court Acme against argued that Gloria’s suit should be dismissed because the harassment Gloria suffered was not “severe or persuasive”.  But the court applied a test used by the Supreme Court, call the “totality of thecircumstances test”.  Under this test:

“workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, …a mere offensive utterance [or] whether it unreasonably interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).

Acme claimed that Gloria had only identified isolated incidents, while Gloria argued that a set of multiple incidents makes a pattern, and an illegal pattern at that.  The court reviewed all the incidents, and found that “while each act/comment, in isolation, might be perceived as insensitive, taken as a whole, a reasonable jury might conclude that the acts/comments were motivated by adiscriminatory purpose.” ( Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

The Undercover Lawyer’s Take-Away Tips for Fighting Workplace Harassment:

The Abusive Boss Who Got Sued For “Negligent Infliction of Emotional Distress”

Have you felt emotional distress at work because of the abusive way your boss treats you? Many of the people who contact me for help in dealing with a bully boss feel this way, and they want to sue their boss in court for all the workplace abuse he or she has inflicted.

When someone like this tells me they want to sue, the first thing they say is that their boss caused “a hostile work environment.” (If you still think you can sue for a hostile work environment, you need to sign up for my 7 Free Work Law Secrets Email Course). The second thing people want to sue for is “intentional infliction of emotional distress.” This also rarely works, and I don’t advise pursuing it, but…

…but a women named Gina Strong in Washington State recently has some success suing her boss for negligent infliction of emotional distress. Because she also sued her boss for intentional infliction of emotional distress (and lost on that one), her story is a great example of what legal claims can work if you want to sue your boss and which legal claims don’t (usually) work. Having a boss who did more than just call her names is where Gina’s story starts.

Gina Strong’s Emotional Distress

Gina Strong worked in a school district print shop, where Jim Terrell supervised her. Terrell screamed at Gina every day. Terrell criticized her work in a sarcastic unprofessional manner. Terrell told blond jokes in Gina’s presence, and yes Gina was blond. Terrell even ridiculed Gina’s personal life: he made fun of her new house; he mocked her husband’s job; and he told her that her son would soon realize that she was a “bum” mother.

How did Gina respond to Terrell’s workplace harassment? She responded the in the same way as many of the people who are reading this article have have responded to their own abusive work environments: she vomited, she experienced anxiety attacks, she suffer from depression, and she even began to have a heart arrhythmia.

Gina went to the school district office and filed a harassment complaint against Terrell. A district office employee, Nichollet Koch “investigated” the allegations and found (like every other in-house investigation) that nothing Terrell did to Gina “rose to the level of illegal harassment.” In other words, the organization knew that Terrell was an abusive asshole, but it wasn’t illegal abuse. So, the school district didn’t punish Terrell. It “recommended” that Terrell take some classes to improve his “management style.” Gina was not satisfied.

After the district closed it’s file on the matter, something made the investigator, Koch, look further into Terrell’s behavior. Soon after the district office recommended that Terrell be terminated. Terrell resigned before that happened.

Three months after Terrell had resigned Gina filed a lawsuit against the district officer and Terrell as individuals (not as agents of the school district). Both defendants filed motions for summary judgment – which asks the judge to throw the case out before trial. The court did throw out the case, but Gina was not satisfied. She filed an appeal.

The Appeals Court considered whether Gina could sue her boss for Constitutional violations (the court said no), whether she could sue her boss for “intentional infliction of emotional distress” (the court said no again) and whether she could sue her boss for “negligent infliction of emotional distress” (the court said yes).

The Appeals Court noted that Gina did not allege that Terrell sexually harassed her, or that his conduct created a “hostile work environment based on sex”. Instead the court observed that “the majority of her claims related to Terrell’s method and style of supervision.”

Court Acts on Gina’s “Intentional Infliction of Emotional Distress Claim”

The legal claim of “intentional infliction of emotional distress” is a “tort” (which is not a dessert in this context). A “tort” is a civil wrong – as opposed to a criminal wrong. Torts come from the history of judges writing written decisions about why the judge decided in favor of one side and against the other side.

In the state of Washington, for you to prevail against your boss on the tort claim of “intentional infliction of emotional distress” (IIED for short) you must prove that:

1. Your boss engaged in extreme and outrageous conduct;

2. Your boss intentionally or recklessly inflicted emotional distress on you; and

3. Your boss’s outrageous conduct actually caused you to feel severe emotional distress.

The Washington State Supreme Court adopted these elements from a publication called the Restatement (Second) of Torts sec. 46 (1965). I’ll explain the Restatement more fully in another article, but for our immediate purposes all you need to know is that most states follow the Restatement; so most States, including your state, use the same three elements above for their tort of IIED.

Most people read the elements of IIED and think “Perfect! This is how I’m going to sue my boss!!” The elements seem to fit what their boss does to them. It just sounds right. Their boss purposefully puts them through hell, and they can’t sleep, feel depressed, suffer from anxiety, and begin getting ulcers.

The problem is, most of what your boss does to put you “through hell” does not meet the very high threshold of what it takes to qualify as “outrageous.” In Gina’s appeal the court decided that the first element of IIED, outrageous behavior, must be “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

IIED, said the court “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The court claimed to be sympathetic to Gina’s plight, but said that what her boss did was more in the vein of “insults” and “indignities” and did not cross the boundary into something “beyond all possible bounds of decency” and “atrocious”.

Victory! The Court Allows Gina’s Claim of Negligent Infliction of Emotional Distress

After dismissing her IIED claim, the court turned to Gina’s legal claim against Terrell for the tort of Negligent Infliction of Emotional Distress (NIED). This time, the Appeals Court decided that what Terrell did could possibly rise to the level of NIED, and therefore allowed Gina to take Terrell to trial on the NIED claim.

NIED is more often recognized in the workplace setting when “it does not result from an employer’s disciplinary acts or its response to a workplace personality dispute.” The elements of this claim are:

1. Boss had a duty to refrain from conduct that would foreseeably harm you;

2. Boss breached the duty of #1, and did engage in conduct that would cause you forseeable harm;

3. The boss’s conduct in #2 directly caused you harm

4. You actually were harmed (you are not exceptionally tough, and didn’t manage to shrug it off);

5. You have objective medical evidence that you experienced emotional distress (such as your doctor had to prescribe anti-depressants, sleeping pills, or high blood pressure medication).

In Gina’s case against Terrell, she claimed that he did the following things (#2) and had a duty not to (#1) which directly caused (#3) her actual harm (#4), and she also had seen a doctor who could verify her “emotional distress” harm. So, here are the acts that made up element #2, what the boss Terrell should NOT have done:

• He continuously made demeaning comments and jokes about her blond hair until she dyed it brown

• He mocked the house she purchased

• He mocked her husband’s job

• He called her a “bum mother”

• He spit in her face as he screamed at her for using the wrong bulletin board for union information

• He stood so close to her while screaming in her face that she feared he would strike her and felt his spit hitting her face

• He disconnected the telephone during the night shift so she could not call out of the print shop

Terrell tried to argue that these actions could not possibly amount to NIED, because they were all “workplace personality disputes” or were related to discipline in the workplace. The court didn’t buy that argument for a second.

The court pointed out that spitting in someone’s face can equal fourth degree assault. Making someone believe you are going to hit them can equal battery. Neither of these two things are a “mere workplace personality dispute.”

The court also pointed out that there was no way the boss, Terrell, could convince them that his comments were all work related. Terrell’s mocking of Gina’s personal life and taunts about her hair color were “rude, boorish, and mean-spirited and were not done in furtherance of legitimate work-related topics… Terrell’s conduct regarding [Gina's] personal life was not a workplace dispute, although it occurred in the workplace.”

The court then reversed the lower court, and ordered that Gina be allowed to go to trial in front of a jury on the NIED claim.

Undercover Lawyer’s Take Away Tips:

1. Don’t believe that you can sue a jackass boss for acting like a jackass by using “intentional infliction of emotional distress;” your best bet is, and always will be, to get yourself in a protected class.

2. You might be able to sue your boss for negligent infliction of emotional distress, but only if your state recognizes this tort and your boss is attacking you as a person and not as an employee.

3. Keep a journal, take notes, write everything down. It bears repeating that you need to keep dated quotes of what your boss says and does. To pursue an negligent infliction claim you will need to show that he or she lashed out at you in ways that are completely unrelated to workplace issues.

If you want to download the full case to read for yourself, or to highlight the NIED portion and hand to your HR Department when you turn in your own boss, you can view and print it here:

Does your boss attack you as a person, and not your work as an employee? Tell us about it in the comments section below.

Can Your Abusive Boss’s Unattainable Goals for You Actually be Discrimination Against You?

A performance improvement plan (or “PIP”) is not discriminatory by itself.  But scores of employees who have bought “Work Laws Exposed” and utilized their free phone consultation with me have described feeling like their boss was trying to “get back at them” by setting astronomically high goals at the employees next appraisal or in a PIP.

• One female employee told me how she used FMLA leave to take her autistic son to a series of therapy sessions; soon after returning to work her boss placed her on a PIP and assigned her completely unattainable goals that she had to meet “or face termination”;
• One older male employee told me how he noticed that his boss, a first time supervisor, was driving out all the employees who were also older and more experienced; when the employee told HR that the supervisor was targeting older workers and pushing them out of their jobs, HR told the supervisor, and the supervisor immediately place the employee on a PIP that included goals no one could possibly satisfy.

Although these are but a couple of examples of how a bully boss can create a hostile work environment by setting unfair goals for employees, the truth is that I hear examples of this happening each and every week.  The bad news angle of this: bosses probably won’t stop doing this anytime soon.  The good news angle?  Now there is something more you can do to fight back against your bully boss.

Why Does This Happen So Much?

What your boss is doing is trying to get back at you, punish you, or drive you out of your job by “focusing on performance.”  That’s what HR and defense lawyers (which I am one, if you recall) tell bosses to do.  “Don’t call employees names or taunt them, because that discriminatory.  Instead, focus on performance.”  Of course what lawyers and HR people mean is to focus on the employee’s actual performance — to hold that person accountable to the same standards that every other employee is held to.

But is that what actually happens?  You know the answer if you are reading this.  The boss doesn’t merely hold the employee to the same standards as others.  The boss is an angry bully who is determined to get rid of the employee, so the boss creates crazy “work plans” and PIP’s that Superman could not satisfy.  And here’s the key — this is the part you need to identify in your own workplace — the “extra” part of a work plan or PIP, the part that goes beyond what other employees have to achieve and is solely imposed on you so that you will be “set up to fail”, THAT is what makes it discriminatory.  And by discriminatory, I mean illegal.

You can complaint to the EEOC or your state’s Dept of Labor and they will punish your company and your boss.  Does that sound too good to be true?  Well, here is an example of just such an employee who recently took his boss and company to court for this very thing.

Recent Real Life Case

In Willnerd v. First National Nebraska,(http://www.ca8.uscourts.gov/opndir/09/03/073316P.pdf) Jeff Willnerd sued his bank-employer for violating the Americans with Disabilities Act (“ADA”).  What the bank really did, however, was run Jeff out of his job by telling him that he had to meet crazy-high loan production goals or be fired.  Other employees with Jeff’s same job did not have to meet these same goals.  No one at that branch of the bank had ever been assigned such high production goals, nor has any employee since.  Since Jeff was being treated so differently than he other employees, he needed to ask himself, how am I different?  Why single me out and not the others?

The bank claimed that Jeff was terminated as part of an economically motivated reduction in force — and that Jeff specifically was selected because of his poor performance.

Jeff believed that reason he was singled out was because of his voice.

Jeff Willnerd began working at the bank in Beatrice, Nebraska in 1982.  He ultimately worked there for 20 years, but in 1999 his voice started to cut out on him.  His condition “baffled his doctors” and “it took considerable exertion for [him] to speak.”  By 2001 his mysterious medical condition had reduced his voice to a mere whisper.  Even then, however, his numerical production numbers and performance reviews were comparable to other employees at the branch.

Despite his solid performance one of the corporate supervisors, Christopher Kisicki, expressed concerns about Jeff’s voice to other employees, asked customers about their perception of Jeff’s voice, and was present when Jeff’s co-workers made fun of his voice.

In 2001 bank headquarters in Omaha began consolidating branch functions at the corporate office.  In February of 2002 Kisicki and another corporate supervisor, Ulferts, met with employees at Jeff’s Beatrice branch about cross-selling services and increasing sales.  Later Kisicki and Ulferts testified that they were mainly concerned with the under performance of two personal bankers at the time.

Despite that, only Jeff received a production quota after the meeting.  Jeff characterized the quota “as an impossible to meet goal established to guarantee his failure.”  Kisicki and Ulferts told Jeff to double his production volume from $2 million to $4 million, or he would be fired.  The court noted that this goal required Jeff to “single handily outperform the entire branch’s mortgage-lending voume at a level the branch ultimately failed to achieve at any time prior of following his termination.”

In May of 2003 Ulferts met with Jeff and told him that he had 90 days to improve his “overall proactive sales effort” or he would be fired.  No other employee at the Beatrice branch of the bank received such an ultimatum.  Although Jeff’s sales production did increase, he did not meet his production quota.  Ulferts described Jeff’s improvement as “a good effort.” Nevertheless, in September of 2003 Ulferts terminated Jeff from the bank where he had worked for 20 years.

Jeff Willnerd Sues First National Bank

Jeff filed suit in court, alleging that the bank fired him from his job in violation of the Americans with Disabilities Act.  Specifically, he said he was discriminated against when the Ulferts and Kisicki assigned him unattainable quotas, then terminated him for failing to meet the un-meetable quotas.

The bank tried to argue that it was solely concerned with Jeff’s performance numbers, that Jeff had been warned that he would be fired if he didn’t “meet his numbers” and that when he didn’t meet them he was fired.

Court’s Holding About Unattainable Goals

The court found for Jeff, finding that the bank’s “strictly performance” argument for terminating Jeff was a mere subterfuge for it’s desire to get ride of him because of his voice condition.  The court made the following statement, which is worth copying and keeping on hand at your desk:

The impossible to meet goals, together with Kisicki and Ulmer’s comments and inquiries about Jeff’s voice, made the bank’s “strictly performance” reason for firing Jeff unbelievable.

The Undercover Lawyer’s Take-Away Tips:

1. Ask Yourself if Your Performance Goals are Realistic: You should not have to live under the pressure and threat of having to meet an astronomical performance goal or face termination from your job.  A court will be willing to at least evaluation whether your PIP or appraisal was truly meant to increase performance, or was actually a screen for a discriminatory desires to terminate you.

2. Compare your performance goals to others: If you DO feel that your bully boss is assigning you impossible to meet goals in a PIP or appraisal, double-check yourself by comparing your performance goals to the goals assigned to employees who are at your same level.  This was a big part of why the court sided with Jeff in the case above; no other employees had any performance quotas, let alone quotas as difficult to satisfy as Jeff’s.

3. Listen and Document What You Hear. Your case becomes many times stronger when you document discriminatory sounding remarks made by management.  Jeff found employees who testified that management allowed people to make fun of Jeff’s voice, and management actually talked to customers about Jeff’s voice.  It’s this evidence combined with the impossible quotas that together put Jeff’s case over the top.  Write down everything you hear that might even possibly be interpreted as discriminatory and you’ll give your case a huge boost.

Your Boss Ever Retaliated Against You in Your Appraisal or ‘PIP”?

If you have experienced this or seen it at your own work, tell us about it in the comments section below or in the forum at http://www.undercoverlawyer.com/forum/

If you want more practical insider secrets to taking back your workplace from a bully boss or harassing supervisor, check out the store page at http://www.undercoverlawyer.com/store-page

The Abusive Boss Who Lost in Court

Download PDF Transcript

Abusive bullying boss ruining your work? You need to hear about Joe.

Joe is a hospital perfusionist (the person who operates the heart-lung machine during an open heart surgery).  Well Joe’s boss, a surgeon, yelled at Joe, cussed at Joe, shook his fist and threatened Joe’s job. Joe got sick.  Literally sick.  As in having to go to his doctor and get anxiety medication, dreading every single work day morning type of sick.

Joe didn’t just turn the tables on his boss, Joe freakin’ flipped the tables over.  Here’s how:

The Bully-Boss Surgeon
Joe Doescher’s “boss” was a cardiovascular surgeon named Dr. Daniel Raess. Dr. Raess behavior included yelling, screaming, and swearing at Joe with “clenched fists, piercing eyes, beet-red face, [and] popping veins.” The final incident ended with Joe believing that Dr. Raess was going to hit him, but at the last second Dr. Raess screamed “You’re finished, you’re history” and he stomped out of the room.

The Anxiety Stricken Employee
Joe felt like Dr. Raess damaged Joe’s ability to do his job, his ability to interact with his wife and family, and caused him to suffer from anxiety. Joe was even diagnosed with a “major depressive disorder,” a “panic disorder,” and an inability to focus.

Joe Strikes Back
So Joe filed a lawsuit against Dr. Raess, alleging that Raess was a “workplace bully” who assaulted Joe and inflicted emotional distress. Joe’s lawsuit went all the way to the Indiana Supreme Court, who were keenly interested in the testimony of Joe’s expert witness, Dr. Gary Namie, the nation’s leading Bullying Expert.

The explosive result in this case made national headlines, but don’t settle for a sound bite explanation. See for yourself how Joe Struck Back, and how the result directly affects YOU.

Subscribe to the “Hostile Work Place Podcast” right now by clicking on the “iTunes” button below; OR scroll down to the media player and easily listen to Episode 8 through your computer’s speakers. No ipod required.

Raess v. Doescher, Indiana Supreme Court (April 8, 2008).

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Are You a Victim of Sexual Favoritism at Work?

I was working on a summary of a case called Miller v. Dept of Corrections for the community when, like fate, this question was posted to the forum by a woman who was feeling driven from her job by her boss:

QUESTION: [Edited for clarity]  “I don’t think he’s discriminating based on sex, race or religion. He just didn’t like what I said one day, which was that he “should be more discrete with that girl in accounting” since he is married.

He has had it out for me ever since.

He gave me a horrible review. I went to HR with examples disproving the review. They pushed it to the side and agreed with him. I talked to his boss and stated if someone was going to be given a review that bad then examples should accompany it. She said “Well, he said he told you about it”.

I work in a technical field. His review was based on what I said to him, not my work. When I asked how is that possible in a technical field, where I am given trouble tickets to work on, they said the intangible and subjective items matter most.

Fast Forward, I am now on a performance improvement plan and made to do things that no one else on my 12 person team is required to do. He took away my entire bonus when I can prove, by way of tickets worked, that I do 33% of the work on my team.  I am stressed, I cry all the time, I walk on eggshells and HR is not helping at all. It’s like nothing I say or any proof provided will make a difference. Lastly, it’s Christmas and I haven’t bought my children anything…After i leave work I can’t stop crying enough to make it to a store…”

ANSWER: As I mentioned above, it seemed like fate that this question arrived while I was working on a summary of Miller v. Dept of Correction; let me tell you a bit about it.

Edna Miller worked for the Department of Corrections in California.  Miller worked for a Warden named Kuykendall, who was having three simultaneous affairs with his own secretary, an associate warden, and still a third subordinate employee; The three women were named Patrick, Bibb, and Brown.

Sexual Favoritism Starts

Patrick and Miller both applied for a open management position.  Miller was the senior employee, with more training and more releveant expereience.  A panel of interviewers recommended that Miller be awarded the position, but Kuykendall gave the promotion to Patrick.

Soon after Patrick received yet another promotion and became Miller’s direct supervisor; it was common knowledge that Kuykendall and Patrick were having an affair, and there was widespread grumbling that the way to get ahead was to have sex with the Warden.

To further complicate matters, a new female Deputy Warden named Yakamoto transfered into the workplace and began inviting Miller to dinner.  It was known that Yakamoto was a lesbian, and although Miller refused Yakamoto’s advances Brown did not.  Brown, at this point, was having affairs with both Yakamoto and Kuykendall.

Retaliation Against Miller

Miller believed that because she had refused Yakamoto’s dinner invitations, Yakamoto began interfering with Miller’s ability to do her job.  Yakamoto countermanded Miller’s orders, reduced her supervisory duties, added onerous low-level duties on Miller, and made unwarranted criticisms and write-ups of Miller’s work.  When Miller threatened to report Yakamoto to Kuykendall, Yakamoto and Brown threatened to harm Miller.

Eventually Miller did report Yakamoto’s abuse to Kuykendall, who assured Miller that he “would look into it.”  Nothing ever happened.  Feeling that she had no where else to turn, Miller reported Kuykendall’s failure to control Yakamoto and all Kuykendall’s own affairs to Kuykendall’s supervisor, the Regional Director.

The Regional Director started an internal affairs investigation.  Miller was required to paticipate in interviews as part of the IA investigation, but she was promised confidentiality.  Soon after, however, it became apparent to Miller that Brown knew exactly what Miller had said during to the investigators.

Failure of Promised Confidentiality

Brown and Yakamoto again began retaliating against Miller; one time Brown screamed at Miller at work, then actually followed Miller home from work to continue screaming at her.

Miller, feeling that the stress was damaging her health, resigned from the Department.  Kuykendall retired.  Yakamoto was demoted and given another transfer.  Brown resigned with disciplinary charges pending against her.  About a year after resigning Miller filed a lawsuit against the Department of Corrections alleging sexual harassment and retaliation.

First Court Battles Lost

The trial court and the appeals court found against Miller, concluding that “a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees.”

The Supreme Court of California reversed both the trial court and the court of appeals, and instead found for Miller. The California Supreme Court reasoned that it was reasonable for Miller to believe that her employer was hostile toward women because of “widespread sexual favoritism.”

Signs of “Sexual Favoritism” You Should Watch For

The Court cautioned that “the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism,” but, enough evidence can be shown by such things as:

1. Admissions by the participants concerning the nature of the relationships;
2. [B]oasting by the favored women;
3. Eyewitness accounts of incidents of public fondling;
4. Repeated promotion despite lack of qualifications; and
5. A supervisor’s admission that he/she cannot control a subordinate because of a sexual relationship with the subordinate.

Despite all of this, the Department of Corrections argued that Miller should not prevail, because this case would mean that courts were starting to regulate private consensual relationships, and the personal privacy of employees and employers alike should not be compromised.  The Department argued that it is better to treat sexual favoritism as a matter of personal preference, in order to avoid establishing a “civility code” governing the workplace.

The Court flatly rejected this argument, stating that “it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard” (emphasis added).

If You Are a Victim of Sexual Favoritism

If you are the victim of sexual favoritism at work, don’t be afraid to print this case out and hand it to your H.R. person or any attorney that you are hoping will take your case.

You can download the full case of Miller v. Dept of Corrections with this link: http://bulk.resource.org/courts.gov/states/Cal/S114097.PDF

Although Miller was decided under California law, the California Supreme Court was persuaded by written regulations from the EEOC which apply to all of us, in all 50 states.  You might want to highlight that part for your HR person.  It starts on page 19.

Have you seen this in your own workplace?  I think I did — where young male attorneys could not get a break with influential senior partners who only wanted to work with young attractive female associates.

I think this is an area of the law that is ripe for expansion.  Let me know what you have seen in your own workplace, and I’ll tell you what else on the topic I can find.

-Curt K.

Three Female Employees Win $485,000 For Retaliation & Sex Harassment from Fred Meyer Stores

SEATTLE – Fred Meyer Stores, Inc. (Fred Meyer) will pay $485,000 to three female victims of sexual harassment and retaliation to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC announced today.

According to the EEOC’s suit ( EEOC, et. al. v. Fred Meyer Stores, Inc. No. CV08-0208 HA, United States District Court of Oregon), the company’s practice of harassing female employees occurred during 2004 through 2005 at the Fred Meyer Oregon City store. The EEOC says the sexually hostile work environment started at the top, with illegal conduct by the store director and operations manager. The EEOC further asserted in the litigation that the store director and operations manager repeatedly subjected females to graphic sexual discussions, unwanted touching, and requests for sexual favors.

The lawsuit alleged that Fred Meyer condoned and accepted this sexually harassing behavior, and the Commission obtained testimony from the company’s human resources manager who witnessed the harassing conduct on several occasions and simply walked away. According to the EEOC, the same human resources manager failed to take appropriate action against the store director or operations manager. In addition, the EEOC charged that the company retaliated against the female employees when they complained about the sexual harassment.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

Under a consent decree filed with the federal court, Fred Meyer agreed to pay $485,000 to the three women who came forward during the EEOC’s lawsuit. The company also agreed to provide anti-discrimination training for the owner, managers, supervisors and employees; establish policies and procedures to address sexual harassment issues; provide information to the EEOC concerning any future discrimination complaints; and allow EEOC to monitor the work site for the next two years.

It is unfortunate that these women had to endure a workplace permeated with such sexual hostility. We are hopeful that Fred Meyer Stores learns from this litigation that one of the most important duties it has to its employees is to keep them safe from workplace discrimination,” said EEOC’s San Francisco District Office Director Mike Baldonado.

EEOC Regional Attorney William Tamayo added, “The evidence in this litigation pointed to an alarming lack of recent workplace, anti-discrimination training for the high level managers involved in this case. It is unfortunate that a sophisticated employer like Fred Meyer Stores failed to recognize the importance of such training for its managers.”

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender, religion, national origin, age and disability. The Seattle Field Office’s jurisdiction includes Alaska, Idaho, Montana, Oregon, and Washington. Further information about the EEOC is available on its web site at http://www.eeoc.gov.

Avoiding the Axe…Part Two — by Jenn S.

Here are a few more tips for keeping on the straight and narrow at work and avoiding many of the common pitfalls that I have seen result in many lost jobs…

DON’T gossip. It’s hard, I know. I have a hard time following this one myself. Gossip is just so fun. Though talking about other people’s faults and foibles can be great entertainment, it can also cause a lot of problems. Generally speaking, people don’t like to be gossiped about and when word gets around that you’re one of the folks spreading other people’s business to all parts of the office, you might become the target of some unpleasant commentary yourself. Office dramas and rivalries often begin with what some might characterize as harmless gossip and end with someone losing a job or at least being moved or demoted. And be especially leery of the boss or supervisor who pumps you for the office gossip and information on coworkers… You might think that you’re scoring points with management but ultimately, you are demonstrating a lack of loyalty and integrity. Best advice: Steer clear of the juicy gossip mill.

DON’T get sucked into the cancer crowd. Cancer, as an illness, usually starts out small. But those cells multiply and the disease spreads until it overtakes its host OR the host eliminates it through treatment. Same goes for an office “cancer.” One unhappy employee starts grousing about how mistreated they are and how rotten management is and then goes around trying to get other employees to join the grousing. A small group of grousers may then emerge, bitching and complaining about the workplace but not really confronting management on any certain issue. And their negativity spreads and spreads, ultimately affecting employee morale and productivity. Sound familiar? Well, let me tell you that these little cancer groups do not go unnoticed by employers and the treatment of choice is often termination. Instead of being part of the cancer, try being part of the cure. Said another way, if you are unhappy about something at work and know that others are, too, try to actively make a difference, instead of just letting things fester and brew. If you are viewed as part of the cancer crowd, you might just find yourself jobless when management seeks to stop the spreading negativity.

DON’T be the office jokester. There is always one, isn’t there? That person who always has some new joke or story to relate that is highly inappropriate for work but who shares it, anyway? Get this – Save the joking for your non-work friends. Learned a great new joke about some racial minority? Save it. Think it’s funny to shove two oranges under your shirt and pretend that you’re the supervisor who just got breast implants? Do it after work at your apartment, preferably alone. Acting out in the workplace is a sure way to get attention from your coworkers but you may also garner attention from management, who will not likely be amused. Inappropriate behavior in the workplace paves a road right out the door so keep a lid on your inner comedian.

DON’T let your guard down. This tip goes right along with the previous one. Do not let yourself get too comfortable at work. It is tempting, especially when you’ve become very friendly with your coworkers, to let your professionalism slide. In a fashion that is alarmingly reminiscent of high school, we want to be “cool” and part of the crowd and are willing to lower our standards of conduct to fit in. But the bottom line is this…you may feel safe in your work environment to “be yourself” or “be real” but you’re not. Do not drop your guard and think that because you are “friends” with everyone at work that it’s cool to drop f-bombs or pinch your cube-mate’s butt. The familiarity that is created at work can be a good thing, certainly, but it can also backfire…badly. Best advice: Do your best to maintain a professional and friendly demeanor at work and avoid crossing lines into unprofessional conduct.

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