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Mowery Youell & Galeano, LTD. Attorneys at Law
485 Metro Place South, Suite 220 Dublin, OH 43017
614-467-4923
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Retaliation Archives

Employee's Conduct At EEOC Mediation Leads to Permissible Firing

A recent 7th Circuit Court of Appeals retaliation case demonstrates that employees must adhere to certain levels of decorum. After receiving a settlement proposal he thought was insultingly low during an Equal Employment Opportunity Commission ("EEOC") mediation, Michael A. Benes reportedly stormed into a room occupied by his employer's representatives "and said loudly: 'You can take your proposal and shove it up your ass and fire me and I'll see you in court.'" Benes v. A.B. Data, Ltd., 119 Fair Empl.Prac.Cas. (BNA) 509, 2013 WL 3838112 (7th Cir.2013). When the employer did, in fact, fire Mr. Benes, he sought protection from the firing through the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. However, the Court found that his outburst during mediation was not protected. The Court of Appeals upheld the District Court's granting of summary judgment to the employer and indicated "[s]ince ยง2000e-3(a) does not create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation."

Recording As Evidence To Support Employees' Claims

Often times, employees believing they are being discriminated against by their employer because of their age, gender, religions, race, or disability tell their employment attorney, "my boss said that I was too old" or "my boss was telling racists or sexist jokes all the time." Then, when I ask them what evidence they have to support their claim, they realize they have none but their own word. That is when I tell them (assuming they have not been separated from the company yet) to consider record their conversations with their employers, so long as no Company policy exists prohibiting recording.  "I can do that?" The answer is - yes!

Retaliation

In Luri v. Republic Services, Inc., the jury awarded "the largest retaliatory discharge jury award in Ohio history-over $46 million." In this retaliation case, the plaintiff was part of a protected class only by virtue of his refusal to follow a directive from his supervisor to fire three employees on the basis of their age. Shortly after pointing out that two of these individuals had strong performance evaluations and refusing to fire them without cause might lead to a lawsuit, his supervisor downgraded his performance evaluations. Luri was then placed on a performance improvement plan that led to his termination.

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