Telling Boss to ‘Shove It’ Might Hurt Your Case

     CHICAGO (CN) – A man who rejected his employer’s settlement offer by yelling, “You can take your proposal and shove it up your ass and fire me and I’ll see you in court,” was properly terminated for misconduct, the 7th Circuit ruled.
     After four months working for A.B. Data, a Milwaukee-based company that designs direct mail fundraising campaigns, Michael Benes filed sex discrimination charges with the Equal Employment Opportunity Commission.
     The EEOC arranged for a separate-room mediation in which an intermediary carriers offers between parties, who are located in two separate rooms.
     “Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise,” according to the 7th Circuit decision penned by Chief Judge Frank Easterbrook.
     But when Benes received a settlement offer that he thought was too low, he “stormed into the room occupied by his employers’ representatives” and berated them. He was fired an hour later.
     Benes then filed suit under Title VII of the Civil Rights Act of 1964, alleging that the company had retaliated against him for complaining of discrimination.
     A federal magistrate granted the company summary judgment after concluding that Benes had been fired, not for his sex discrimination complaint, but for misconduct during mediation. A three-judge panel for the 7th Circuit unanimously affirmed Friday.
     “Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator,” Easterbrook wrote. “Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [Title VII’s anti-retaliation provision]. … We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.”
     The panel also noted that Title VII’s anti-retaliation provision bans only employer responses that would dissuade workers from brining discrimination charges.
     “The prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation,” Easterbrook wrote.
     Employers do not violate Title VII when they fire an employee for conduct that, if it occurred outside an investigation, would result in termination.
     “Benes does not content that A.B. Data would have tolerated conduct like this had it occurred at work,” Easterbrook concluded. “If it did nothing else, the incident demonstrated Benes’s hotheaded inability or unwillingness to follow instructions about important matters.”

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