Can I be fired for opposing a schedule change?
Best Employment Lawyer Answer: Yes. Meet Raina Ricks, who was the plaintiff-employee in Ricks v. InDyne, Inc., 2022 WL 8022536, at *1 (11th Cir. Oct. 14, 2022). After her termination Ricks filed a charge of discrimination with the (“EEOC”) claiming to have been wrongfully fired. In her charge form to the EEOC, Ricks asserted that her employer targeted her for termination primarily because she opposed the alternative work schedule. Id. at *2. You see the alternative work schedule required Ricks to show up to work earlier and work longer hours on certain days, which really upset Ricks and resulted in her being late clocking in an estimated 80 and 90 percent of the time. Of course, there are no employment laws that protect an employee from being assigned work hours that the employee does not like. Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act of 1967 (“ADEA”) protect employees from race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, disability, and age discrimination.
Yet, when filling out her charge form, Ricks identified a completely legitimate reason for an employer to fire an employee – especial an at-will employee. (Best Law Read: What Does Employment At-Will Mean?; Can I Really Be Fired For No Reason As An At-Will Employee? I Need A Lawyer!). The moment that Ricks pointed to a legitimate reason as the cause for her termination in the EEOC charge form, she practically doomed her claim as neither the EEOC nor any court would likely look passed that admission. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge).
As our employment law attorneys have addressed recently, your supervisor or boss has the right to set any schedule that it likes for you to work; and if you don’t like that schedule, your only remedy is to quit. (Best Law Read: Can I be Fired For Clocking Out At The End Of My Shift?; Can My Job Require Mandatory Overtime?). Of course, you could keep just showing up when you want and ignore the new schedule, which is apparently what Ricks did. (Best Law Read: Can I Be Fired For Bad Attendance After Reporting Discrimination Or Harassment?).
By leading with this admission over scheduling, Ricks irreparably damaged her other claims.
When does sexual harassment in the workplace become severe or pervasive?
Top Sexual Harassment Attorney Answer: As our employee’s rights lawyers have discussed in this blog before, in order to prove a claim of sex harassment, the employee must show that the conduct at issue was severe or pervasive. (Best Law Read: What Is Sexual Harassment In The Workplace?). Severe refers to the extremeness of the conduct while the pervasive standard deals with frequency. Essentially, a sexually hostile work environment will be found where a reasonable person would find the workplace to be so hostile or abusive that it would alter the condition of employment. To that end, relatively minor and infrequent sexual comments will not support a sexual harassment hostile work environment claim.
Ricks also complained that a coworker, James Humbarger, created a sexually hostile work environment. In June 2014, Ricks asserted that he used several curse words. Several months later, Humbarger told another employee in front of Ricks that he wanted Ricks “to be mine,” to which she giggled in response.
In September 2014, Humbarger commented to Ricks about trading her for his wife.
In November 2014, Ricks filed her charge, as discussed above with the EEOC, which also identified conduct by Humbarger, including unspecified occasions when he asked Ricks to “hook up,” “ask[ed] [her] to sit on his lap and ‘and let [him] feel [her] rear end,’” and stating that anyone working in the office “would love to have sex with [him].”
Shortly thereafter, an InDyne investigation revealed that Humbarger had been intoxicated at work and engaged in bad conduct. As a result, InDyne fired him. (Best Law Read: Yes, It Is Legal To Fire Men Who Sexually Harass Women).
Ricks’ sexual harassment hostile work environment claim had a few large problems. First off, “Ricks did not report Humbarger’s harassment to superiors and dismissed her supervisor’s offer to intervene.” Id. at *4. Certainly, even Ricks did not perceive the conduct to be severe or pervasive if she told her managers not to worry about it. Moreover, because Humbarger was not Rick’s supervisor, she needed to prove that the management knew or should have known about coworker sex harassment but did nothing to correct it. (Best Law Read: Does A Coworker’s Porn Create A Sexually Hostile Working Environment Claim?). But the supervisors did offer to intervene but was rejected by Ricks. Moreover, when Ricks did file a formal charge with the EEOC that identified the conduct by Humbarger, the employer investigated and fired him. Lastly, the United States Court of Appeals for the Eleventh Circuit held:
But even if Ricks perceived his harassment as subjectively intolerable, Humbarger did not engage in the type of “extensive, long lasting, unredressed, and uninhibited sexual threats or conduct” that an objective person would consider to be severe or pervasive. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000) (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999)), overruled on other grounds as recognized by Crawford v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008). Humbarger’s advances were infrequent. And Humbarger’s offensive comments and vulgar behavior lacked the severity or pervasiveness necessary to amount to actionable sexual harassment.
Id. at *4.
Sometimes, common sense must come into play. Ricks primary complained that she hated the new schedule and was being targeted for voicing that opposition; and in an oh by the way tack on, she asserted that comments made by a coworker bothered her despite rejecting a supervisor’s offer to address that issue. Sure, maybe the Court considers the claims differently if Ricks just skipped her schedule displeasure in the EEOC charge, but that only emphasizes the need to consult an employee’s rights attorney before taking any legal steps.
How do I know if I have a wrongful termination claim after being fired today?
Best Employee’s Rights Law Firm Answer: Before you take any actions regarding your potential employment discrimination or wrongful termination claims, your best option is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call Spitz, The Employee’s Law Firm’s lawyers in Ohio, Michigan, and Raleigh to get the proper legal advice you need regarding your specific employment situation. Spitz is committed to protecting the legal rights of workers.
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