IT’S LEGAL

Unfortunately, the apology meeting did not go well
By William Wood, Attorney at Law | Nov 29, 2012

“I should have seen it coming.”  A thought business owners and operators hate to have.  The kind of thought that occurs when misunderstandings become disputes, job seekers with poor resumes become problem employees and oral agreements become a mess to deal with.  In the clarity that hindsight offers, these things are often seen as predictable.  But few would have had the foresight to predict the outcome of the following case reported last month out of the Washington Court of Appeals based in Spokane.

THE FACTS:  Fred’s Appliance in Spokane employed Al as a delivery truck driver.  One day as Al delivered store inventory, Steve, the Sales Manager, called out loudly “Hey, there is Big Gay Al.”  Al responded “excuse me?” and Steve repeated his greeting.   Al said nothing and left the store.

He later stated he felt embarrassed and just wanted to get out of there.  Rick, the general manager of the store, witnessed Steve’s greeting to Al but just stood by, shaking his head.  The next day Al again delivered inventory to the store and again Steve called out to him in the same fashion.  This time Al told Steve to stop what Al felt was name-calling and harassment.   Steve said it was a line from the TV show “South Park.  ” Al said he didn’t care and told Steve not to call him that anymore.   Five days later, Al was again delivering at the store and Steve yet again called out “hey, Big Gay Al”, and again it was in front of fellow employees and customers.  Al spoke strongly to Steve, yelling and telling him to desist.

WHAT IS YOUR GUESS ON THE DIRECTION THIS IS GOING?  Many people would guess that this is going to be a case against Steve for defamation and maybe against the employer for not correcting the situation by instructing Steve to stop the harassment.  In truth, Al ended up being fired and Steve was found to have done nothing legally wrong.

WHAT ACTUALLY HAPPENED:   After the third incident that resulted in Al becoming upset and yelling, Steve called the store’s Operations Manager and complained that Al had used swear words in front of customers.  This executive told Al’s direct supervisor to suspend Al if this allegation was true, but upon investigation the supervisor decided not to do so.  Al told him he wanted to submit a formal written complaint against Steve, but in an attempt to mollify Al the general manager of Fred’s met with Al and said that Steve would apologize to him.  Unfortunately, the apology meeting did not go well.

Al later stated that he felt he was not being taken seriously at the meeting, that the apology stated was not sincere, and that he was not going to stand for this disrespect.  Yelling and threatening to sue, he stormed out of the meeting and went to his truck to resume working.  His supervisor told him to get out of the truck, that he was too upset to drive, and shortly thereafter Al was fired by the Operations Manager for yelling and swearing in front of customers, notwithstanding that it was the manager that chose the location of the attempted apology.

AL’S NEXT STEP and THE FINAL OUTCOME:  Al sued Fred’s, alleging that Fred’s subjected him to a hostile work environment, and terminated him in violation of the Washington law against discrimination.  He also sued for defamation and alleged that his termination was retaliatory in that it violated a protected right to not be fired from asserting one’s right to file or threaten to file a complaint.  Al was unsuccessful in his suit.

On appeal from a dismissal by the trial court of all claims made by Al, the Court of Appeals sustained that dismissal, stating (1) that Al was not a member of a class protected from discrimination but was simply subjected to being called Big Gay Al, (2) that someone is not defamed merely by teasing that no reasonable person would take seriously and (3) that he was fired for losing his temper and yelling in the store in front of customers, not for threatening to sue or file a formal complaint.

COULD IT HAVE BEEN DIFFERENT?  Would the outcome have been different in Western Washington?  Maybe.  Would the situation have escalated to a courtroom trial if Steve and Al had both been counseled before the fact, along with their fellow employees, on appropriate in-store and on-the-job behavior?  Maybe.  Could Al and his employer have saved a lot of money?  Undoubtedly.   Would Al still have a job?  Maybe.

Would you have done anything differently in the employer’s or employee’s shoes?

THE LESSON:  Always look for the earliest opportunity to control outcomes and be proactive in avoiding workplace discord.  And yes, that is easier said than done.

This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Publishing this article does not create an attorney-client relationship between the author and any party. The opinions expressed in this article are the opinions of the individual author and not of any other person or entity.

 

 

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