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Thursday, October 10, 2013

Firing the Sacred Cow Employee

 By Tommy Eden

After working at A.B. Data for only four months, Michael Benes charged the firm with sex discrimination. As background, A.B. Data  is a consulting firm whose website takes credit for the direct mail campaigns in the 2008 and 2012 elections for Senator and then President Obama. The Employment Opportunity Commission (EEOC) arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room with the mediator shuffling between rooms.

But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer's representatives and said loudly: "You can take your proposal and shove it up your  a** and fire me and I'll see you in court." Benes stalked out, leaving the employer's representatives shaken. Within an hour, A.B. Data accepted Benes’ counterproposal and fired him for his misconduct during an EEOC sponsored mediation.

Benes replied by filing suit in Wisconsin Federal Court under 42 U.S.C. § 2000e-3(a), the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination had been abandoned as part of the mediation. The Judge granted A.B. Data’s motion for summary judgment concluding that Benes had been fired for misconduct during the mediation, not from making a supporting charge of discrimination. The Judge stated that the EEOC statute only bans retaliation because an employee has opposed any practice made an unlawful employment practice or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

Benes then appealed the lower court’s grant of summary judgment to the Seventh Circuit Court of Appeals. In affirming the lower court’s ruling dismissing the case the panel found that “We cannot see why misconduct during mediation should be consequence free…if it did nothing else, the incident demonstrated Benes's hotheaded inability or unwillingness to follow instructions about important matters.” The court determined that the law does not forbid all responses to the filing of discrimination charges with a government agency, only those that would dissuade a reasonable worker from making or supporting a charge of discrimination. The case is Benes v. A.B. Data Ltd.,

Common Sense Counsel: this case is a great example of how an employer can properly handle an out-of-control abusive or threatening employee who has previously engaged in protected activity, such as filing an EEOC charge or lawsuit. Take action now to update your handbook and train your staff to deal with the sacred cow employee (one who thinks they are bulletproof) by answering the following questions: 1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards? 2) Did you conduct a fair investigation before a decision was made? 3) Were you consistent in the manner in which discipline was administered? 4) Did you first utilize progressive discipline? 5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? See my July 2013 post "Bullet-Proofing your Employee Discharge Decision"“. This article goes into detail on each of the above questions.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Employment Blog at