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  • #16
    Why are you letting this higher up who got you in the mess call the shots???? TALK TO THE GUY! Find out WHY he did what he did. Stop guessing. If there isn't a really good reason for it, I'd honestly consider reinstatement. And term Mr. Higherup who got you into this mess. And seek a supervisor for this guy who has a backbone. And, firm up your processes for firing someone. STAT!
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    • #17
      Originally posted by ElleMD View Post
      Why are you letting this higher up who got you in the mess call the shots???? TALK TO THE GUY! Find out WHY he did what he did. Stop guessing. If there isn't a really good reason for it, I'd honestly consider reinstatement. And term Mr. Higherup who got you into this mess. And seek a supervisor for this guy who has a backbone. And, firm up your processes for firing someone. STAT!
      We've spoken with the higher-up to get the full story. Several months ago, the minority employee questioned a decision of the higher-up which the higher-up perceived as insubordination (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

      The higher-up wanted to get rid of him but needed valid justification. The higher-up saw performance lapses and the minority employee was given a mid-year evaluation to shape up (with written feedback from the immediate supervisor and another manager). He was the only one to receive a mid-year evaluation, with no prior or subsequent written warning or documentation of feedback. There's no numerical scoring on a scale as with our annual performance review, no date, no mention of disciplinary consequences, no timeline and no signature from the supervisor, HR or any higher ups.

      The way it was executed was very sloppy. From the advice given here it appears that the company is at significant risk for a racial discrimination suit as by coincidence he happened to be the only minority in the department. It seems the minority employee's immediate supervisor was just as fearful of incurring their wrath and went along with it for fear of being disciplined for insubordination as well.

      And if your suggestion is to term the higher-up, they've been with the company for less than a year (less time than the minority employee and immediate supervisor). The higher-up wasn't involved in hiring the minority employee. And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?

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      • #18
        (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

        That's all the minority employee needs to WIN his case.

        The higher-up wasn't involved in hiring the minority employee.

        Write another zero on the check.

        And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?


        Maybe. Maybe not. It depends on exactly how it went down. But that's not going to be enough to save YOUR job if they decide they need a scapegoat. You've mentioned several things on the three threads on this question that a smart HR could use to save their own necks and throw yours under the bus.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #19
          And it just keeps getting worse. Honestly get legal counsel YESTERDAY! You are uncovering more of an issue, not less...

          I guess I would ask exactly what your position is in the whole thing? Are you in HR? Why are you the one investigating it? Are you the immediate supervisor? And yes, I would suggest releasing the higher up if I were in a position to do so. If you are the mid-supervisor, I would be concerned about my own job too. That person might end up the scapegoat for knowing and not stopping it or at least bringing it to HRs attention.

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          • #20
            Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.

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            • #21
              Originally posted by throwaway64759 View Post
              (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).
              It certainly looks like the employee has a very good chance of winning his case. As others noted, get your legal dept. involved.
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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              • #22
                Originally posted by throwaway64759 View Post
                Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.
                Once again - get your legal counsel involved.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                • #23
                  Originally posted by throwaway64759 View Post
                  Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.
                  With the facts you've presented, you will never in a million years get anyone to believe that this was not discrimination. Nor does your attempt to shift blame to HR lessen the company's liability one whit. I'm not going to go into the reasons why HR is likely not responsible because you're so far in denial, it would be a waste of time.

                  You have heard from lawyers, experienced HR people, and lay people, all of whom have told you exactly the same thing; your employer is toast. You need your legal counsel involved. Take that advice or leave it but when your company ends up paying many, many thousands of dollars out and you as the immediate manager are out on the street without a job, just remember; you heard it here first.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                  • #24
                    My instinct is that there would need to be proof of racial injustice in order for it to hold. Evidence would be lacking for the other side. There may be paperwork missing on our end internally, but fact of the matter is that you don't really need a reason to fire somebody in a company. You can basically just do it if they don't fit. Who cares if they're a minority? Still have to get along.

                    I do not know of any legal ramifications of firing somebody because they don't fit the mold. So in order to go against that, the person making the accusation would have to prove that there were racial tensions - whether that be through eyewitness account or correspondence. Chances are they don't have any form of proof to push their case.

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                    • #25
                      You don't get it. Your instincts aren't worth diddly.

                      Long before this goes to court, the EEOC is going to investigate and ask for all the documentation that you have. If you don't have it, you can't produce it. If you have anything and don't produce it, it won't help you either. And what you can produce looks very very bad. That is pretty much all the proof that they need to at least issue the right to sue and to allow the employee to take it to court. Do you understand just the legal costs, even if you win (which I honestly doubt the employer will), will run into the tens of thousands of dollars along with whatever the judgment ends up being? Do you understand that their side can subpoena your hiring/discipline/firing records? This ex-employee can and will get what documents that you have if it goes to court. And based on what you have said, he will win.

                      You can fire "at will" but you better be able to prove it wasn't due to a protected reason or there isn't disparate impact on who you fire. And "being a good fit" is a cop out reason to terminate (personally I think all the time) especially if it is not documented. And often leads the ex-employee to believe it was a discriminatory reason (true or not). Every terminated employee wants to know why and feel that it was fair. Investigators/judges and juries see through "not a good fit" really quickly. Like you stated $50K was spent in recruiting this employee. If he wasn't a good fit, then I would be wondering about the recruiting process that costs that much and doesn't figure this out much sooner. I suspect the "not a good fit" was actually the higher up employee who terminated him.

                      That higher up doesn't have to have said racial statements. Nobody has to prove "racial tensions". And you have no documentation to back up that he was not a "good fit". But he will have plenty of evidence that he was the only one of three to be fired due to "insubordinate attitude" and not a good fit even though he had a "meets expectations" mid-year perf review. Wait? Which is it? Insubordination or a good fit? Honestly the EEOC is going to see through you all if you keep changing the reason he was fired and the employer got to the point of firing him.

                      You obviously are not in HR. I am kind of surprised you are in mid-management and have never been trained on non-discriminatory management and procedures and/or how to discipline/terminate. But that doesn't mean that you can't be held responsible along with the higher up for not following any procedures that were currently in place via HR/company policies.
                      Last edited by hr for me; 11-10-2015, 04:28 AM.

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                      • #26
                        My instinct is that there would need to be proof of racial injustice in order for it to hold.
                        My instinct is that you aren't listening and aren't going to listen to anything we have to say, but one final time...

                        Get. A. LAWYER!!!!!! Yesterday! There absolutely does not need to be "proof of racial injustice," whatever it is you think that would consist of. People don't actually have to be running up and down the halls calling minority employees the n word for there to be racial discrimination!!! You have just stated that a minority employee was singled out for discipline and termination when two other non minority employees involved in the same incident weren't. Pull out your checkbook, that's a slam dunk. You can sling all the "not a good fit" and "have to be able to get along" and "right to work" BS you want while your employee's attorney realizes he can send his kids to Harvard after all.

                        We were initially open to transferring him to a different department. The head of that department seemed open to taking him, but the higher-up intervened and didn't want it to happen.
                        I really, REALLY do not understand why this higher up continues to hold a job. And the blame shifting to the HR department-when it sounds like they didn't know any of this was going on until after the fact-incredible.

                        You stated that the employee was seeking reinstatement. It sounds like you have a chance to settle this, and from everything you've presented you probably should, and before the employee comes back this higher up should be terminated. I can't say that to an absolute certainty without being able to examine all the evidence in the case first hand (like, you know, that LAWYER we keep telling you to hire would!) But I'm pretty sure once you talk to them, they are going to say if you can make this go away by rehiring the employee and wiping the slate clean you should grab that raft and hold on for dear life.

                        FINAL ANSWER: In order, here are the steps you need to take NOW.

                        1) Get a lawyer.
                        2) Tell them ALL the facts, and ONLY the facts up front, with no "wasn't a good fit" BS and show them what documentation you have.
                        3) Do exactly what the lawyer tells you to do.
                        4) Repeat step 3

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                        • #27
                          Even if Mr. Higherup isn't racist, he is a terrible manager. If this employee and or others were insubordinate 9 months ago, it should have been dealt with then. And, dealt with the same for all. Mid-year reviews are not bad and can be used as needed with just those employees having performance issues. There is nothing wrong with that. The law does not govern reviews so it can look like whatever you want for it to look like. It doesn't have to have a numerical score or anything of the sort. Where you have a problem is you have Mr. Higherup who holds grudges, singles out employees indiscriminately, and undermines the actual supervisor. That is toxic to an organization. If there are performance issues, the actual supervisor needed to be documenting and addressing it, not this new higher up.

                          HR may or may not play a role in any of this but if Mr. Higherup is permitted to steamroll his way through and use personal grudges as a basis for business decisions, then likely, HR wasn't going to stop this. That does not mean the company can not fix this mess. The guy is seeking reinstatement. That is HUGE! He has not yet filed anything with the EEOC or any other acronym agency. Why you would even consider anything other than reinstating this employee who "meets expectations" is beyond comprehension. Meanwhile, Mr. Higherup needs a serious "Come to Jesus" meeting with his boss. He either needs to be told on no uncertain terms that he is to toe the line, or preferably, be shown the door. He has already proven he can not act in the best interest of the company, which is the bare minimum one should expect from anyone with supervisory authority.
                          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                          • #28
                            You have three employees who were involved in the same incident.

                            The minority employee was fired, after a trumped-up mid year evaluation that no one else received.

                            The non-minority employees still have their jobs and did not get any kind of eval.

                            Whether you like it or not, that is all the "proof of racial injustice" needed.

                            I'm beginning to agree with the guy on the other forum who thinks you are Mr. Higherup.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                            • #29
                              It's a very good point that this is mostly likely MrHighUp (MHU). Otherwise how would he be privy to so much knowledge such as MHU has never made racial slurs etc. I had guessed he was the mid-manager originally who also signed off on the termination, but the more he posts, the more your guess makes sense.

                              The perspective sure does sound like someone who is looking for any thin strand of hope about why this all went down the way it did and how that was OK from MHU's point of view. Sorry dude, you are in a very deep hole.

                              ( I am on a totally not-work-related forum and it always amazes me the details that come out in further posts when the majority of posters disagree with the original poster's viewpoint. More details that try to support the OP....makes one wonder )

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                              • #30
                                This OP seems to think that if we say to him "You're OK, you're not racist, you didn't do a racist thing, you are just fine, you have no legal problems whatsoever," that he can just tell this to the plaintiff's lawyer and everything will go away.

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