Do I have a case for wrongful demotion?

I have been employed at the company for 5 years as a manager. (I am no disclosing the specific management title). I have an exemplary background with personnel reviews for back up. About a year ago I hired a new employee to replace an individual that left the company. I had problems with this person right from the get go. I gave this employee a bad review at the three month interval and placed the indiviudal on a personal improvement plan. In the meantime the CEO of the company promoted the Director of Sales and Marketing to General Manager. It was at this time that I began reporting to him directly.

Once this occurred my employee started meeting with him without my knowledge. I had no idea the meetings were occurring until one of my colleagues caught my employee in his office behind closed doors. Long story short - this behavior continued and the new general manager never talked to me about the meetings or anything else for that matter.

The situation grew more and more tense between myself, my new employee, and the general manager. Finally, I had had enough and went to the CEO and told him that the new General Manager through his inappropriate behavior with my subordinate, had created a complete hostile work environment for me.
The next day the CEO asked the General Manager to leave the company.

It was soon discovered that the General Manager was coaching my employee on how to handle the situation with me - because we learned that she hired an attorney and threatened to sue the company for the creation of a hostile work environment by me. It was incredible.

Two and a half months ago I was told that my employee threatened to sue and that I would either have to accept a demotion and a 10% cut in salary, or I would be forced out of the company.

I was absolutely horrified. The person I was about ready to fire was now in the driver's seat??? I couldn't believe my ears when I was told.

Anyway, it has now been 2 1/2 months since this occurred. I have been looking feverishly for a new job, but what with the economy and my current age, I am having difficulty.

The more I have thought about this situation, the more it insights me. I have been caught in political shenanigans in the past where I came out the looser, but this time I'm not going to just accpet the outcome. IS THERE ANYTHING I CAN LEGALLY DO ABOUT THIS SITUATION?

(Obviously I have been as brief and inexplicable as possible when describing the circumstances here, however, the additional details would be shared gladly if a case was developed).

I would be happy to speak to an attorney in my area about this if you think a case is possible.

2 answers  |  asked Apr 25, 2012 4:54 PM [EST]  |  applies to California

Answers (2)

Marilynn Mika Spencer
Your situation may have a strategic solution more than a legal solution. As Mr. Itkin suggested, there is generally no legal protection for personal tensions in the workplace. However, there are many situations where a creative attorney can be extremely helpful in working out a resolution.

And there may be a legal solution, too, though it is hard to tell from your question. For example, if the subordinate made allegations to the GM which the GM accepted as true without a non-biased investigation, and your sex, race, age, disability, or other protected category was even a part of that assumption, the employer may have engaged in discrimination. This may indeed be what happened, based on your explanation of events. The difficulty, of course, is in knowing what took place behind closed doors, but difficulty is not the same as impossibility.

There are other possible avenues to follow, but it would take far too long to summarize them here.

For your information, a hostile work environment is a legal term of art that means there is ongoing unlawful harassment. Unlawful harassment must be based on a protected category, such as race, sex, sexual orientation, religion, disability, age (40 and over), pregnancy, or genetic information. Harassment can include verbal conduct, slurs, derogatory comments, comments or questions about a person's body, appearance, religious, or sexual activity. Harassment can also include offensive gestures, sexually suggestive eye contact or looks, mimicking the employee in an insulting way, and derogatory or graphic posters, cartoons or drawings.

Harassment is unlawful when the conduct is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently and/or in many situations. One offensive statement is not pervasive, but the same comment made over and over again may be pervasive.

Unlawful harassment is itself a form of unlawful discrimination. "Discrimination" means "to treat differently." Not all discrimination is unlawful. Please look at my guide to unlawful discrimination: http://www.avvo.com/pages/show?category_id=6&permalink=what-is-unlawful-employment-discrimination--california-law which should help you understand lawful and unlawful discrimination, how to enforce your rights, and time limits.

It is clear you value your job don't want it to end under these circumstances, and of course you don't want to take a pay cut. You owe it to yourself to spend a little time and money and figure out if there is a legal or strategic solution to try. You will probably have to pay an attorney by the hour for this consultation, but depending on the compensation level for your job, it may be money well spent.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

I hope you can resolve your situation and wish you the best.

Marilynn Mika Spencer
____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted by Marilynn Mika Spencer  |  Apr 30, 2012 2:04 PM [EST]
Arkady Itkin
Hello.

Although your situation sounds unfair and hurtful, unless the reason for your mistreatment or demotion is discriminatory (due to your race, religion, gender, ethnic origin, disability, race) or retaliatory (due to engaging in a protected activity), there can be no claim for unlawful demotion. Based on your recount of events, your situation is a matter of personality conflict or personal anymosity, an any action by your management resulting from that anymosity alone is not illegal.

Thanks,

Arkady Itkin
Attorney

posted by Arkady Itkin  |  Apr 25, 2012 5:21 PM [EST]

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