Is it Legal? Derogatory Remarks Can Get You Fired

Why This Single Slur Justified Employment Termination

August 7, 2017 by Tom D’Agostino

Sometimes an employee deserves a second chance. 

That’s where progressive discipline comes in. It helps deter employees from repeatedly violating the rules by allowing them to be disciplined incrementally.

It’s Not a Right
But the ruling in The Matter of Hendrickson reminds public safety managers – and first responders – that progressive discipline isn’t a right that always has to be followed.

Far to the contrary, there are some situations that warrant severe punishment – even discharge – for a first offense. The New Jersey fire inspector’s behavior in this case is one example: After his supervisor modified his assignment, he made a gender-based derogatory remark to her that the administrative law judge (ALJ) said was akin to a racial slur.

The fire inspector was fired for this single incident even though he had a blemish-free record up to that point. The court upheld his discharge.

Objected to Her Order
William Hendrickson worked as a fire safety inspector for the New Jersey Bureau of Fire Code Enforcement. The bureau is a division of the New Jersey Department of Community Affairs (DCA).

In December 2013, about 15 or 16 months after he was hired, Hendrickson and two co-workers were in the parking lot of a sports stadium ready to begin their shifts. The supervisor then modified Hendrickson’s work assignment. The co-workers overheard him call her a “f—ing c–t.” Hendrickson testified that he didn’t remember using that language. But he admitted saying that he wished “she [would] get a disease.”

The DCA issued Hendrickson a notice of termination for unbecoming conduct. The notice explained that he engaged in sexual harassment and violated New Jersey’s policy prohibiting discrimination in the workplace.

ALJ Found Discharge Too Harsh
Hendrickson appealed the notice, and his appeal was transferred to an ALJ. After hearing witness testimony, the ALJ determined that Hendrickson’s outburst occurred as his co-workers had described.

The ALJ found that Hendrickson’s purported loss of memory about what he said wasn’t credible. She found further that because the language Hendrickson used was “akin to a racial slur,” the DCA met its burden of showing he engaged in sexual harassment and violated the state’s policy against workplace discrimination.

But in weighing the appropriate discipline, the ALJ took into account that this was Hendrickson’s first offense and he didn’t incur any other charges in the nine months he worked for the bureau after this incident.

Although the ALJ found that Hendrickson refused to acknowledge his wrongdoing and was troubled by this, she decided that termination was too harsh. She came to this conclusion after considering the nature of his offense, the purposes of progressive discipline and Hendrickson’s prior work history. The ALJ ruled that he should be suspended for six months.

The DCA appealed to the New Jersey Civil Service Commission. But the commission wasn’t able to review the ALJ’s decision within the mandatory 45-day time frame because it didn’t have a roster of three members to constitute a quorum. The DCA then brought the matter to court, which reinstated Hendrickson’s termination.

The court rejected Hendrickson’s argument that it had to give deference to the ALJ’s decision. It said the standard was whether the decision was supported by substantial evidence. The court concluded that it wasn’t.

Progressive discipline is used to impose severe discipline when an employee’s misconduct is habitual, the court explained. Progressive discipline is also used to impose incremental punishment for initial offenses.

But progressive discipline isn’t appropriate if the misconduct is severe, unbecoming to the employee’s position or renders the employee unsuitable for staying in the job – or if using it would be contrary to the public interest.

All of those factors applied here, the court found.

Outburst Showed Lack of Judgment
First, Hendrickson was a new employee who engaged in significant and public misconduct toward a supervisor in response to a routine work change.

Second, his actions violated the state’s anti-discrimination policy and societal norms.

Third, similar to the role held by law enforcement, Hendrickson was responsible for enforcing safety standards while interacting with the public, a demanding job that required him to conduct himself in a measured fashion. His outburst showed that he lacked the good judgment and self-control necessary to do this.

Moreover, he wasn’t truthful during the hearing, and he had no remorse for losing control over a routine order.

Accordingly, he was a poor candidate for incremental discipline, the court concluded.

In fact, in light of Hendrickson’s responsibilities, it would be too risky for the DCA to impose incremental sanctions, the court explained. Therefore, the DCA properly terminated him. The ALJ’s ruling ordering the DCA to reinstate him had to be reversed.

In the Matter of Hendrickson, No. A-3675-15T1, 2017 WL 3045774 (N.J. Super. Ct. App. Div. 7/19/17) (Unpublished).

 

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