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Old 05-01-2010, 05:14 PM
 
Location: Texas
15 posts, read 79,765 times
Reputation: 18

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I was denied unemployment under section 207.044 of the Texas Unemployment Compensation Act.
The Issue: Fired - Insubordination
Reason: "Our investigation found your former employer fired you from your last work for defying or disobeying your supervisor. Your supervisor was acting within his or her authority."
First, the person in question was NOT my supervisor, second, I did not defy or disobey her.
When I received the packet pertaining to the appeal, I was able to see what had been said about me. Most of it is false, and I believe, coerced. However, what I did say to one coworker, after the CS supervisor left the area, in a joking manner I might add, was, "that's why I call her little hitler." My mistake. (It was in reference to the immediate backing off and going back to their desks in reaction to her presence in the area.) The employee who I said that to went to the supervisor and told her what I said. I was fired the next day.
I know for a fact that the HR had been purposely targeting me to lose my job for more than two months.
I would like to know if anyone can advise me on how to present a winning argument at my appeal hearing on Monday, May 3 2010. I never signed any sort of agreement to understanding the terms of my dismissal, nor have I, in almost five years of service ever been disciplined for any act of misconduct. Does anyone out there have a suggestion as to how to proceed?
Any advice will be greatly appreciated!
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Old 05-01-2010, 06:09 PM
 
4,806 posts, read 12,058,471 times
Reputation: 4581
Unemployment courts typically understand that terminated workers can rarely present any proof of their case. Most times written proof is on company computers or company property that you can't access. And witnesses usually are jeopardizing their own jobs if they speak on your behalf. But even with that understanding, you are the plaintiff in this appeal, so the onus is on you to prove your eligibility. A lot of cases come down to he said/she said, and usually in those cases the court will give the terminated worker the benefit of the doubt. But it is always up to the judge.

Putting myself in your former employer's shoes, I wonder if their argument is not that this woman gave you an order that you disobeyed, but that your supervisor gave you an order to treat her or everyone with respect and that is the order you disobeyed. By the court's definition, that order could have come in any number of ways: in an employee handbook or company policy about maintaining a culture of respect, in a staff meeting statement, in a company-wide email, or in a private conversation with you. These means of disseminating the order do not have to be recent. There's not much you can do to disprove this argument, I think.

If, however, this is not their argument, but they are in fact claiming this woman was your supervisor, then you might be able to scrounge up some evidence to prove that she wasn't your supervisor. Maybe you've got some copies (electronic or print) of emails or other communications that show you were regularly in communication with someone else and they were clearly your supervisor. Or maybe you can find something on their website about their org structure that shows you reported to someone else. If you happen to still have a copy of your original offer letter from 5 years, that could help demonstrate who you reported to. Even printing out her linkedin profile, along with your actual supervisors--if they have them--could help. It's not a guarantee that the judge will accept them, but it's worth trying.

I'm not 100% certain, but I think the 'defendant' is the Unemployment Office, which will be represented by their House Counsel. As I said above, you are the plaintiff. Your employer isn't the defendant. So most likely it will be the House Counsel reporting to the judge what your employer said--not the employer themselves giving the statement. That would help your case, I think, but I could be wrong about this detail.

Good luck.
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Old 05-01-2010, 06:16 PM
 
Location: Sierra Vista, AZ
15,952 posts, read 12,582,500 times
Reputation: 7754
Appeal and require the employer bring the "Supervisor" and make sure they know you will appeal again if the ruling is against you
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Old 05-01-2010, 09:11 PM
 
Location: Texas
15 posts, read 79,765 times
Reputation: 18
kodaka - "Putting myself in your former employer's shoes, I wonder if their argument is not that this woman gave you an order that you disobeyed, but that your supervisor gave you an order to treat her or everyone with respect and that is the order you disobeyed. By the court's definition, that order could have come in any number of ways: in an employee handbook or company policy about maintaining a culture of respect, in a staff meeting statement, in a company-wide email, or in a private conversation with you. These means of disseminating the order do not have to be recent. There's not much you can do to disprove this argument, I think."

This is exactly what they are claiming; that I signed the paperwork saying that I had read and understood the handbook. I guess my argument is simply that I didn't treat her with disrespect, I certainly did not defy nor disobey her, and my comment was made in a joking manner to someone I was working with in her department. Granted, in retrospect it was inappropriate, but again, I had been targeted for dismissal as a result of disability discrimination for several weeks. (I needed FMLA or intermittant FMLA to take care of my emotionally disabled daughter during the months of August '09 to January of this year, but the HR denied me and put me on a "clocking in/out" wage versus the salary status I had previously received - there's a lot more to that story.) It just reeks of bad business.

Thank you for your comment and sharing your thoughts, I really appreciate it.
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Old 05-01-2010, 09:37 PM
 
Location: New Jersey
3,814 posts, read 8,070,165 times
Reputation: 917
Quote:
Originally Posted by kodaka View Post
Unemployment courts typically understand that terminated workers can rarely present any proof of their case. Most times written proof is on company computers or company property that you can't access. And witnesses usually are jeopardizing their own jobs if they speak on your behalf. But even with that understanding, you are the plaintiff in this appeal, so the onus is on you to prove your eligibility. A lot of cases come down to he said/she said, and usually in those cases the court will give the terminated worker the benefit of the doubt. But it is always up to the judge.

Putting myself in your former employer's shoes, I wonder if their argument is not that this woman gave you an order that you disobeyed, but that your supervisor gave you an order to treat her or everyone with respect and that is the order you disobeyed. By the court's definition, that order could have come in any number of ways: in an employee handbook or company policy about maintaining a culture of respect, in a staff meeting statement, in a company-wide email, or in a private conversation with you. These means of disseminating the order do not have to be recent. There's not much you can do to disprove this argument, I think.

If, however, this is not their argument, but they are in fact claiming this woman was your supervisor, then you might be able to scrounge up some evidence to prove that she wasn't your supervisor. Maybe you've got some copies (electronic or print) of emails or other communications that show you were regularly in communication with someone else and they were clearly your supervisor. Or maybe you can find something on their website about their org structure that shows you reported to someone else. If you happen to still have a copy of your original offer letter from 5 years, that could help demonstrate who you reported to. Even printing out her linkedin profile, along with your actual supervisors--if they have them--could help. It's not a guarantee that the judge will accept them, but it's worth trying.

I'm not 100% certain, but I think the 'defendant' is the Unemployment Office, which will be represented by their House Counsel. As I said above, you are the plaintiff. Your employer isn't the defendant. So most likely it will be the House Counsel reporting to the judge what your employer said--not the employer themselves giving the statement. That would help your case, I think, but I could be wrong about this detail.

Good luck.
An initial appeals hearing with Unemployment -- as you are describing -- is NOT like a case in court. There is no plaintiff, there is no defendant, there is no "house counsel." There are simply two parties to the action who provide sworn testimony to a appeals official appointed by the Unemployment unit of the State Labor Department.

This appeals official reviews the evidence supporting the claims of both sides -- for and against the determination of eligibility for unemployment benefits that has previously been made. It's this official's job to determine: (1) if the original Unemployment examiner made any errors in determining your eligibility for benefits; and (2) if the information supplied by your former employer supports the employer's claim that you are ineligible for benefits.

As you have described, you are provided in advance of the hearing the information submitted to UI by your former employer upon which UI based its determination of your denial of benefits.

It is your job to refute the evidence -- or supply additional info that will cause the appeals official to reconsider the determination of your eligibility of benefits. Your former employer -- or his representative -- is expected to appear to defend the statements or evidence they previous submitted to UI.

The appeals official will ask you and your ex-employer questions and allow you to make any statements you wish. After hearing both sides, the appeals official considers the situation and renders a decision -- generally within a week to few days.

The best advice is for you to:
(1) Review carefully what was submitted by your former employer -- and the specific "evidence" on which UI based its determination decision.
(2) Be prepared to refute those specific statements -- or at least put them in a context for the appeals official that explains your behavior. For example, the fact that you have no pattern of such behavior -- even according to your ex-employer's records -- demonstrates that insubordination had not previously been an issue in your performance.
(3) Keep your statements during the hearing -- and any answers to questions -- factual and direct. For example, if you are asked about the criticism you made of the woman, admit that it was inappropriate, but that it certainly was not intended to be insubordinate.
(4) Conduct yourself like a professional -- don't get emotional, don't be defensive, don't make unsubstantiated allegations against your former employer or supervisor.

And, Boompa is correct. If you lose this appeal, you can appeal again.

Good luck!
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Old 05-01-2010, 09:41 PM
 
4,806 posts, read 12,058,471 times
Reputation: 4581
If you have any documentation to show that you recently applied for FMLA and were denied, that would be a big help, I would think.
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Old 05-01-2010, 09:45 PM
 
Location: New Jersey
3,814 posts, read 8,070,165 times
Reputation: 917
Quote:
Originally Posted by kodaka View Post
If you have any documentation to show that you recently applied for FMLA and were denied, that would be a big help, I would think.
The appeals official will make his determination based solely on the claim of insubordination made by the ex-employer in this case. The disability discrimination matter is not an issue for the appeals hearing, and the appeals official will shut that down ASAP. That matter should be pursued separately.

The surest way to aggravate an appeals official is to raise an issue that is not relevant to the matter under his review.
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Old 05-01-2010, 09:46 PM
 
Location: Texas
15 posts, read 79,765 times
Reputation: 18
Quote:
Originally Posted by diorgirl View Post

The best advice is for you to:
(1) Review carefully what was submitted by your former employer -- and the specific "evidence" on which UI based its determination decision.
(2) Be prepared to refute those specific statements -- or at least put them in a context for the appeals official that explains your behavior. For example, the fact that you have no pattern of such behavior -- even according to your ex-employer's records -- demonstrates that insubordination had not previously been an issue in your performance.
(3) Keep your statements during the hearing -- and any answers to questions -- factual and direct. For example, if you are asked about the criticism you made of the woman, admit that it was inappropriate, but that it certainly was not intended to be insubordinate.
(4) Conduct yourself like a professional -- don't get emotional, don't be defensive, don't make unsubstantiated allegations against your former employer or supervisor.

And, Boompa is correct. If you lose this appeal, you can appeal again.

Good luck!
Wow, some really practical and useful information! Thank you for breaking it down for me. This definitely gives me direction as I prepare for the upcoming hearing. I appreciate your advice and encouragement very much!
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Old 05-01-2010, 10:54 PM
 
Location: Texas
15 posts, read 79,765 times
Reputation: 18
Quote:
Originally Posted by kodaka View Post
If you have any documentation to show that you recently applied for FMLA and were denied, that would be a big help, I would think.
Unfortunately, the company was about 100 employees, with one HR director. When I asked her for FMLA or intermittant FMLA, she said that was too much trouble and to just keep track of the hours I missed, then mentioned possibly going to the time-card from salary. She said, (not an exact quote) 'just send me an email explaining the situation, what you anticipate, and how you will keep track of your time. That way if anyone asks, it'll be on record.'

Interestingly, when I received my copy of my outlook emails, that one in particular was missing. Luckily, I had already forwarded it to myself at my personal email long before I was dismissed. Oh, and about two months before the firing, I asked again for FMLA or intermittant, to which she replied, "sure, I can give it to you, but I'd have to back it all the way up to late August and you'd already have used it all up." (!!!)

I do agree with diorgirl - this is a separate issue that I will have to pursue through a different agency. I do at least have the email I sent her, and multiple hand-written notes of meetings or conversations we had where she became increasingly demanding and hostile. Part of me just wants to be done with this and walk away, but most of me feels like this is an effort I must take on behalf of all the other former coworkers I have seen go through this very thing.
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Old 05-01-2010, 11:28 PM
 
4,806 posts, read 12,058,471 times
Reputation: 4581
Yes you don't want to present arguments that are extraneous to this issue.

However, if the employer terminated you in retaliation for your request for FMLA, and their claim of insubordination is merely an attempt to cover up the true reason for your termination, then you should present it.

Termination for requesting FMLA would also be a matter for another agency, but it could indeed be useful information for your appeal too.
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