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Appealed a Denial of Unemployment After Being Fired for Sexual Harassment

by Anonymous

Snapshot of Indiana unemployment benefits from 2006 to 2015

Snapshot of Indiana unemployment benefits from 2006 to 2015

I am a female and I had a recently married female co-worker harass me at work.

She always made sure she asked me when no one else was around, if I would go home with her and her wife for a three way sexual encounter. The first time I blew it off as a joke. I did try to avoid her and asked for a shift change.

She was a supervisor and work was scheduled day by day so I never knew if I would be in her department.

By the next couple of times of saying this to me and I declined;she started making trouble for me. First thing she did was claim I was late from breaks so I would tell her boss who approached me about this that there are cameras that would prove I was telling the truth. I was not reprimanded.

There were other incidents always with her trying to claim I broke the rules. As an employee I missed one day a year, in the past 2 years and I had no disciplinary issues ever.

I came to work and worked about 2 hours and I was called to the HR office. There I was told I violated policy and that I was being terminated. The policy they alleged I violated was non discrimination against a gay male employee. I denied making any comments like that at all, never signed anything.
They told me two women said I made the comment and what a surprise! One was the supervisor who hit on me, and the other was her new assistant.

Fast forward past the initial UI denial and we had scheduled a telephone hearing. By then former colleagues told me supervisor had been fired for falsifying quality documents.

HR shows up for the phone conference with no witnesses against me or witness statements, but they did admit that I told them about a previous sexual harassment incident that nothing was done about because they claimed I said I wanted to sleep on it?! Which never happened but I did get the HR to admit on cross that no one heard me say that to him.

Is there a chance they will reverse the UI decision?
Thanks in advance.

Chris's Answer

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I think Indiana should reverse the initial determination.

1. the employer
lacked first hand witnesses to support the reason for termination actually happened.

2. It doesn't sound like HR even conducted much of an investigation into the allegations in the first place .. or I would think they'd fall over themselves to make sure it was submitted along with witness statements from the accusers at least .. even if I would tell you object to those statement being allowed into the record as hearsay .. because you couldn't cross examine the person who wrote the statement.

3. You actually got the HR person to admit you had previously came to then about being sexually harassed by one of your accusers.

However, I can't let this go without reminding everyone that Indiana recently changed their administrative law rules, to actually reassign the burden of proof for good cause to be the moving party to the the unemployment hearing ALJ whether it's for a discharge, or a quit.

What this means to me is if an ALJ is biased (oh yes it does happen) toward claimants, or employers in general, that hearing officer could effectively drive their ruling to be what they want, because they know the law, precedents and the rules of procedure very, very well.

Don't know about you, but when a state agency itself has literally given itself even wider discretion, in that they explore and support and issue the last word about something they know nothing about in the first place, that's way to much control for me and something I would call a big conflict of interest for someone MANDATED to be impartial.

To see Indiana in a different light, look at the chart above to see what's happened to it's yearly benefit recipiency rate from 2006 to 2015.

Not pretty.

Basically, I really do think you should win this because in other states the employer not only didn't meet it's burden to prove your guilt of misconduct, but admitted to the very reason that explains why this person may of been motivated to strike back at you.

It just wasn't a solid termination from the gitgo .. but then lots aren't, but not everyone is able to cross examine an employer when they get the chance either .. in fact nor cross examining an employer on relevant points that rebut misconduct occurred are how many lose winnable hearings ..

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Feb 19, 2017
PS Yummy about dismissing this appeal
by: Chris -

I read the original question again and felt it important to mention why a dismissal wasn't in order.

This was a claimant appeal on an initial denial of benefits for a discharge for misconduct.

Had the ALJ dismissed the claimant's appeal on the grounds the employer didn't have first hand testimony, it would likely of been a blatant disregard of the rules of procedures for such hearings and now we'd be discussing a very strong additional reason for why the claimant who lost, would want to appeal to the UI board of review in even Indiana.

Dismissing the claimant's appeal would of been procedurally incorrect to affect the claimant's right to due process ..

Since the lower level hearing is the full fact finder and is required even to reverse an erroneous initial denial. Regardless if it was hearsay testimony from an employer, fully exploring is a matter for the ALJ to properly give less weight to hearsay when comparing it to direct first hand testimony of the claimant who was first sexually harassed and discharged .. only after making the attempt to get that problem resolved .. and in this person's case .. to no avail from an unreasonable employer.

But you're right .. this is why I recommend hearing representation .. when possible.

Feb 19, 2017
To Yummy
by: Chris -

I agree with your assessment.

I didn't check to see how old, but given the Indiana recipiency chart I used as an image .. it was likely about two years ago since the chart was meant to demonstrate just how much UI recipiency had dropped and I was somewhat peeved at the time when I read that Indiana was now assigning the burden to the party who is supposed to be objective and unbiased toward both parties at the hearing .. given Indiana really is an employer friendly state.

As for what's hearsay and what may be an exception to the rule is state specific to the state's rules of procedure for administrative law hearings of this type.

It's also why I asked about an actual investigation by HR .. since that is a method to used by some employers to get around an objection to their testimony being hearsay.

Also, when I'm told there was an admission by a witness from HR during the hearing that the claimant did come to them with the complaint .. but they still didn't investigate .. I start thinking if it was that old standby strategy that may of been for no other reason than for the purpose of protecting the companies interest beyond the scope of UIBs.

If it's not written down .. documented, can anything really of happened if nobody writes about it.

Or .. if it isn't written down anywhere by anybody .. did it really happen.

It's like the old question -- If a tree falls in the forest ................

Feb 19, 2017
Hear say
by: Yummy in my tummy

I'm not sure of how old this post is but HAD to comment.

This is why people need to get a lawyer for uc appeal hearings.

A knowledgeable person would of immediately objected and motion to dismiss because NO ONE had first hand knowledge or was present at time incident occurred. This is all HEARSAY and must be dismissed.

May 15, 2016
I could actually speculate about what went down
by: Chris -

And it wouldn't be speculation based on guessin' and by gollyin', but past off the record conversations that cropped up in the course of what I once did while dealing with unemployment hearings.

But what's the point if it's irrelevant to you particular case for benefits .. which seems to of been a quite hasty and ill-prepared termination with actual proof .. and first hand testimony to prop a document up to be more credible.

Like I said, in my opinion, that would of been a hearing that left me wanting docs to submit for the employer.

It happened enough that here when speaking to claimants .. I often ask, Do you know if the employer has docs that may prove the burden of being the moving party. If no docs to prove you definitely guilty ..exploit that weakness for all it's worth. And when they do, and you know it, it's time to call upon any sense of common you have and weigh your option .. or spy a different path that might work .. because unemployment hearing decisions in all states really do explain how unemployment is intended to work what path (basic argument by the way) once worked for some unemployed people in the past.

May 15, 2016
What evidence?
by: Anonymous

Thank you Chris. This entire incident's evidence seems to be an email from a shift boss that basically said someone told him I allegedly made the comments about a "few" individuals. Few? He also wrote he did not witness this but named supervisor as the main witness and a "few" others. This email was sent to HR on a Sun night and I was fired the next day. How could they have investigated anything?
All HR wrote was that I (alledgedly) made a comment about one particular gay man and this offended the two women who allegedly heard me.

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