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Wrongful Termination – The (Mis)Fortune Cookie Crumbles

September 16, 2016

By Michael G. McClory

While the (fictional) mailbag almost always fields questions from imaginary HR directors, we could not resist this week’s letter from TK Oh.  TK feels his employer unlawfully ended his employment early and he wants us to help him value his case.  The Bullard Edge does not value cases or provide legal advice, but we do think TK sincerely believes he was wronged and we want to help him sort out these feelings.  Here is TK’s letter.

TK’s Question:

I need your help.  My employer –former employer, actually– wrongly fired me and is trying to get me to give up my claims for peanuts.

You may not know me, but you probably know my work.  I am a writer and have been since age 24.  Immediately after earning my MBA I decided to give up accounting and went to work for Mid-Town Publishing.  For the past six years, I have been on the writing team.  Some would even say that I have been the writing team.  While the company’s primary business is publishing, I am part of a small and very successful department that writes the sayings you find in fortune cookies.  Remember “Smooth dissonance awaits”?  How about “Willpower is doubting failure”?  Those were some of my gems.

About three weeks ago the company fired me.  FOR NO REASON.  My boss, Julie, called me into her office to deliver the news.  Julie said that the company had lost confidence in my commitment and abilities.  “Lately, the old touch is missing from your work, TK.  The things you are writing make almost no sense.”  It was stunning, but also eerie.  Just that morning I had written, “Rejection is like opportunity in a bad coat.”  Wow.  You know what I mean?

The company’s explanation is not sitting well with me, in part because in the termination meeting Julie offered a severance package: three weeks of pay in exchange for a release of all claims against Mid-Town Publishing.  She said the offer was in recognition of my years of service and that the company hoped the severance package would ease my transition.  Julie gave me 21 days to think about it.  Random number?  I doubt it.  The vibe I get is that a company with a guilty heart is trying to play a trick on me.  Obviously, I could take the deal, but I think my claims are worth more.  That is where I need your help.  Consider these factors.
 
  • Wrongful termination: Mid-Town Publishing terminated me without warning and I am staring at financial ruin.  I may write fortune cookies, but am not sitting on a fortune.  Like most workers, I need my job and I plan my spending based on my anticipated paycheck.  Had I known that that the company intended to fire me I would have trimmed my spending.  For example, I would not have purchased a car last year or prepaid for a vacation this November.  The company basically said, “Six years.  Thank you very little.”  It had no right to put me in a hole like that.  Frankly, I think Julie simply does not like my big personality and is jealous of my accolades.  Three years ago Aphorism Weekly presented me with the “writer of the month” award.  Julie sees the plaque every time she visits my cubicle and that has to be tough.  She was a writer for a few years before moving to management, but she never won anything.  Bottom line – I got the boot because I was not liked, despite performing my job duties well and despite following company rules. 
     
  • Age discrimination: There also is strong evidence of other improper motives.  Consider what Julie told me when she canned me.  She said that the “old touch” is missing from my work.  That is a clear reference to my age (I am pushing 30).  There is no legitimate reason for Julie to mock it.  On top of this, I heard from my friend Kenny that the company plans to hire a much younger replacement (a 22 year old college dropout) who they can pay less than they paid me.
     
  • Religious discrimination: In addition to age, religion is at play, too.  It cannot be a coincidence that Julie fired me just four months after I requested permission to leave early on Wednesdays.  Another employee, Jill, who just happens to go to church with the company owner, had made the same request before me.  She wanted to leave early on Wednesdays so she could participate in a worship group.  The company granted Jill’s request, but my virtually identical request was denied, likely because I do not share religious beliefs with the owner.  It forced me to find a different book group.

So what do you think?  Are my claims worth more than three weeks of pay?

The Bullard Edge's Response:

We cannot help with claim valuation, TK.  I am sure you know from reading The Bullard Edge that we do not give legal advice and we do not advise on specific cases.  That said, we can help you unpack some of the hurt you have expressed.  This may allow you to more clearly evaluate your situation.

First, there is a general presumption that employment is at-will.  This is the rule in Oregon.  Here is how BOLI describes it.  “The common law rule regarding the employer-employee relationship allows the termination of the relationship by either party, without notice and without cause.  Oregon courts have long followed this general rule of ‘at-will’ employment.  This means that generally, in the absence of a contract or statute to the contrary, Oregon employers may discharge an employee at any time and for any reason, or for no reason at all.”

Second, your letter says nothing about either a written contract or an oral agreement related to the length of your employment with Mid-Town Publishing.  For that reason, we are going to assume that you were an employee at-will.  That gave you the right to quit at any time without consequences.  It also gave your employer the right to terminate your employment at any time, even if it did not have a good reason for doing so. 

Third, the general presumption of at-will employment has limits.  Specifically, an employer may not terminate an employee for an unlawful reason.  There are several categories to consider here, including constitutional protections and statutory protections.

Fourth, let’s look more closely at constitutional restrictions on the termination of at-will employment.  A recent example is found in the Ninth Circuit’s Godwin v. Rogue Valley Youth Correctional Facility  decision (August 10, 2016 - unpublished).  In that case, the appellate court held that Rogue Valley’s termination of its at-will employee, because of an off-duty association with a motorcycle club, violated the employee’s First Amendment free speech rights.  There is nothing in your letter, TK, that suggests Mid-Town Publishing’s termination of your employment might have implicated any of your constitutional rights.

Fifth, we also need to consider statutory protections.  You assert that the company’s termination of your employment constituted age and/or religious discrimination.  These are two of the many protected classifications under state and federal law.  We will look at both.

Sixth, age discrimination is prohibited under both Oregon and federal law (ADEA).  Because federal law protects persons 40 or older from age discrimination, you would have no claim under the ADEA (you said you are “pushing 30”).  However, Oregon law protects employees from age discrimination “if the individual is 18 years of age or older” (ORS 659A.030).  The question you have to ask yourself, TK, is whether you believe your employer terminated you because of your age.  Your letter does not include enough facts to hazard a guess; all you say is that the company explained that it had “lost confidence in [your] commitment and abilities.”  We do not know what that means.  Unless that is code for “because of age” you are not going to have much of an age discrimination claim.

Seventh, your religious discrimination claim is intriguing.  As far as we can tell, your complaint is not that Mid-Town Publishing terminated you because of your religious beliefs.  Rather, you appear to be arguing that you asked for religious accommodation in the form of Wednesday afternoons off and that the company unlawfully denied your request.  We have trouble seeing that.  The Bullard Edge explained in a prior post that employees have religious rights in the workplace under both Title VII and Oregon law.  “Where an employer is on notice that an employee has a sincerely held religious belief and needs accommodation related to that belief, it must reasonably accommodate that belief unless providing accommodation would result in undue hardship.”  You implied that you requested Wednesday afternoons off so you would be able to participate in a book club.  Unless that book club had some connection to religion, and unless Mid-Town Publishing knew about that connection, then there is not going to be any kind of claim.  (Jill’s request, in contrast, had a clear religious basis and the company granted it.)

Wrap Up - TK, this brings us back to the severance package.  The company offered you three weeks of pay in exchange for a release of claims.  You asked whether you have claims that are worth more than the offered severance.  As we said at the outset, we are not going to offer advice or help with valuation.  We do hope, though, that the discussion above helps you to look at the facts of your situation without being clouded by your emotions.

Good luck and best regards,

The Bullard Edge
 
P.S. We just opened a fortune cookie containing the following message, “Truth is an unpopular subject.  Because it is unquestionably correct.”  Did you write that?
 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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