JOB TERMINATION: Things to Consider in an Employment Case

Firing an employee or being fired is one of the toughest things for an employer or an employee respectively. I am sure that there are no companies who want to end up in a lawsuit for illegal termination. Nobody will also be happy to be fired by his/ her employer without any good reason.

Any company who hires a new employee has performance expectations that need to be met in order to reach the organizational objective. In the same way, the employee expects something in return from Management to support him/ her in performing his/ her job. However, there are certain things that need to be considered by both employee and employer if their relationship doesn’t work out. This should be based on their employment state laws in order to avoid possible lawsuit.

There was recent news about DEBRAHLEE LORENZANA, a former CITIBANK employee who claimed that she got fired because of her sexy appearance at work. She filed a lawsuit against her former New York bank employer in November 2009; and she also faced possible termination from her present company, JP Chase Morgan.

We shall take her case as an example in our discussion. Just to give you a short background, Lorenzana was a former employee of Municipal Credit Union as a Sales Representative. She was also a former insurance agent at the Metropolitan Hospitals and an ex-employee at Bank of America. She was hired by Citibank last September 2008 as a Personal Banker; but she got fired in August 2009. One comment in the Village Voice said that Lorenzana worked with TJ Maxx before working with her present employer, JP Chase. I have gathered information that would illustrate our topic for better understanding. But you can read the full story in our references cited at the end of this article. Below is a basic checklist of things to consider in any employment case:

A. DETERMINE THE REASON FOR FIRING

LORENZANA – In her recent interview with CBS Early Show and NBC Today, this 33 year old woman claimed that she was fired from her work because she was too sexy and her appearance was too distracting to her male bosses and other co-workers. She now filed a lawsuit against CITIBANK for illegal termination due to discriminatory fashion and gender.

Her lawyer, Jack Tuckner said that his client (referring to D. Lorenzana) is risking her work at JP Chase Morgan by speaking out and that they will absolutely file a case if her present employer will fire her.

CITIBANK – It was mentioned in the CBS interview that the bank released a statement that “Lorenzana’s performance wasn't up to par, citing that, in April 2, 2009, a quarterly report showed she was behind her colleagues in monthly sales credit and, in June of the same year, she received a final notice that she wasn't bringing in enough business. The bank cited these reasons for firing her in August 2009.”

Whereas, Citibank also released a statement to NBC Today Show; “Ms. Lorenzana has chosen to make numerous unfounded accusations and inaccurate statements against Citibank and several of our employees. While we will not discuss the details of her case, we can say that her termination was solely performance based and not all related to her appearance or attire. We are confident that when all of the facts and documentation are presented, the claim will be dismissed.”

JP CHASE – The bank has not yet released any statement regarding their stand about the case. Based on their Code of Conduct – Section 6: Outside Activities, Gifts, and other Potential Conflict of Interest – “Employees must never permit their personal interests to conflict with or to appear to conflict with the interest of the firm. When faced with a situation involving a potential conflict, ask yourself whether public disclosure of the matter could embarrass JP Morgan Chase or you, or would lead an outside observer to believe a conflict exists, whether or not one actually does. You must disclose to the Office of the Secretary all potential conflict of interest, including those in which you may have been placed inadvertently due to either business or personal relationships with customers, suppliers, business associates, or competitors of JP Morgan Chase, or with other JP Morgan Chase employees.” I think that this statement supports a possible violation of Company’s Code of Conduct if Lorenzana will continue to involve the name of the bank in her employment dispute with her former employer.

In our example, Lorenzana versus Citibank claims two different reasons for firing. Both parties now have the burden to prove that termination was either legal or illegal. Our federal law prohibits discrimination due to race, gender, national origin, disability, religion, or age. But here are some reasons that an employee may be possibly fired from work:

1. Poor work performance
2. Low productivity (example: did not meet sales quota)
3. Insubordination or refusal to follow instructions
4. Habitual Tardiness and Absences
5. Violation of Company Rules (example: revealing trade secrets, code of conduct, conflict of interest, etc.)
6. Stealing or Dishonesty
7. Harassment or Violence

Any possible employment lawsuit can be prevented if both parties have a clearer view of the reason for termination.

B. DOCUMENTATION & INVESTIGATION

LORENZANA – She claimed that she sent a letter to Human Resources requesting for additional training and to be transferred to another branch. But it was in June 25, 2009 that she sent an e-mail to the bank’s Vice President about her problems at work. In less than a month, she was transferred to another branch.

CITIBANK – They sent a notice of their quarterly report in April 2009 citing Lorenzana’s poor work performance and low productivity. They claimed that they sent another final notice in June of the same year.

JP CHASE - In this case, the bank can be a possible victim of misinformation about employment history if Lorenzana did not disclose her case with Citibank before she was hired. They can check the application form signed and the documentations made during their recruitment process.

Both employee and employer should consider some items with regards to employment documentation.

1. Employment Status and Length of Service – Is the employment status on a contractual, probationary or regular basis? What is the date of hiring?
2. Is there an employment contract signed or implied?
3. Are there any job description? What is the result of the performance evaluation?
4. Are there any initial, secondary and final notices given about work performances?
5. Are there any other materials that can affect the employment case? (Example: written or e-mail letters, recruitment processing papers, employment history, photos, videos, etc.)

You can check out the video of Lorenzana that showed her breast augmentation at the age of 26 at Long Island Plastic Surgical Group. She also had another surgery inspite the discouragement that her doctor told her. She also mentioned that she was not doing it in order to become a better person, but rather to become attractive like Pamela Anderson.

WATCH: D. Lorenzana’s video clip about her Breast Enhancement Surgery

CLICK HERE: Photos of Debrahlee Lorenzana by Village Voice

In my point of view, the photos and videos released by the former Citibank employee can definitely affect her case. Lorenzana mentioned in her documentary video that she wanted to be a “playboy playmate”; which was also reported by the New York Post. Her photo and video showing her nipples in one of her work attires can also be contradictory to her claim. The bank might also have their video cameras that could be checked as a reference material.

It is important that proper investigation and necessary documentation should be prepared in any employment case . Our employment history and performance background are also relevant. This information will give you the basis whether the termination is legal or illegal.

C. PEOPLE INVOLVED

LORENZANA – She claimed that her Branch Manager, Craig Fisher and Assistant Manager, Peter Claibourne made improper sexist comments about her clothing and appearance. During her interview; she said, “I’ve been my whole entire life going through harassment and discrimination; and I tried to stay quiet and just get another job. Many times. But it came to a vicious pattern all the time. And it never changed. And this time I tried to decide to try something else. And now I’m gonna speak up. Enough is enough.”

Thoughts to ponder based on Lorenzana’s statement:

1. Does it mean that she also experienced the same harassment and discrimination with her previous employers?
2. If such vicious pattern happened many times as she said, should it be the time to reflect if what her managers and co-workers were saying about her might be true?

CITIBANK – Based on the news, the new Branch Manager of Lorenzana was the one who told her that she was not fit for the culture of the bank and fired her.

Thoughts to ponder on for Citibank:

1. Who should be the right person to fire the employee? Should it be the new Branch Manager or the Human Resource Manager?
2. Where there any investigation conducted on Fisher and Claibourne regarding the claim when she was still employed?
3. Where there any investigation conducted with the co-workers before the final firing?

Conducting proper investigation and hearing out feedbacks from people involved can give both parties generous information that could help in their decision making process. There will always be a “he said – she said – they said” circumstances in any situation. One of the most difficult thing to do is finding out the TRUTH.

D. CHECK COMPANY’S REGULATIONS & STATE LAWS

Each state or countries have our own government labor or employment laws to be followed by every company. However, companies are authorized to make their own rules and regulations as long as it does not deviate from a fair labor standards set. It is the responsibility of the Management to inform their employees about these rules, regulations or code of conduct that needs to be followed by their employees.

In any employment case, it is advisable that both employee and employer should double check their State Employment Laws and Company’s Handbook for reference. This will guide them if their actions are within the set rules or verify if there were any violations made.

E. FINDING ALTERNATIVE SOLUTIONS

Both employee and employer can ask the following questions before making any final decision. They might be able to find alternative solutions that could help resolve their conflict.

EMPLOYEE:

1. Is there truth in the accusation of your employer?
2. Have you ever experienced the same treatment or similar situation with your previous employer?
3. Is filing a resignation more appropriate or helpful action?
4. Is filing a lawsuit the final resort to solve the problem?
5. Why do you need to involve the media when you file a lawsuit?
6. Does the involvement of media means that you no longer trust the justice system of the government?
7. Is it worth going through all the conflicts of filing a lawsuit?

EMPLOYER:

a. Have you gathered all the information needed to finalize the case?

b. Is demotion or resignation still possible in the case?

c. Can the employee be transferred to another position?

d. Does the employee deserve another chance?

e. Does the employee post any threat of violence to the company?

f. Is firing the employee the final resort to solve the problem?

This article is not about making judgment neither with Lorenzana or Citibank. But rather, it is to share important point of views to consider before making any course of action in any employment problems.

Remember that in any case, there will always be three sides in a story - - - the EMPLOYEE’s Side, the EMPLOYER’s Side and the TRUTH.

REFERENCES:

1. CBS Early Show Interview

2. NBC Today Show Interview

3. Village Voice

4. New York Post

5. JP Morgan Chase Code of Conduct

6. Fox News