Legal Question in Discrimination Law in Virginia

I was an employee at a multinational chain restaurant. I was terminated because I was a disabled veteran, was harassed, found out the general manager was serving expired food, complained about employees being forced to work in hazardous conditions, and then found out the GM was working there illegally- which was the stated reason for my termination.

When hired, the general manager did not look over my resume. After being hired, I inquired about receiving a higher position. She looked at my resume and said “Oh, you’re a veteran…?” That is when things starting going downhill. She said she did not like military members and veterans, as well as strongly implied she had great disdain towards military members and veterans. I was then harassed; examples including her being rude, condescending, picking favorites, hanging out in the back doing her nails and eyebrows- and when asked if she could help out with work,- she became irritated, and taking her personal problems into work and blaming me for them.

I would be routinely pulled aside during the work day, escorted to the back alone, and then interrogated about if anyone was talking bad about her, said I was supposed to- it was my duty to- secretly inform her if anyone said anything about her, if anyone liked her, and other related disparaging remarks. This created a very hostile work environment. I finally told her I did not want to partake in any of that, which greatly increased her dislike towards me.

We have a secret shopper program in the store. Successfully earning high points on the secret shopper scores adds a significant amount to our paychecks. We found out she was stealing parts of our bonuses and giving them to her friend who worked in the store. We told the district manager about this. Nothing happened, and we never received our fair portion of the pay. In addition, he was hired at a higher pay rate than any other crew member- some of the crew who have been working there over four years, and he received a higher wage then they did. This decision was approved by the district manager. We were informed of this by the assistant manager.

I then caught her trying to sell expired food; in this case bread. When questioned about it, she said it was fine to serve and not to bother her again. Sometimes, there are small pieces of mold on the bread. We are not trained or told to inspect them. Some potatoes come in moldy and decomposed. We are to use them to serve in the fries. Small sections of lettuce and onions come with brown, off-looking pieces. We are told to use all produce. On occasion, the pickles will have a very light and off-looking color. They have a bad taste, as I tasted one to see if it was just a color issue. We were forced to use them. All food has labels with dates. If the label date is overdue, we have to switch containers and apply a “new” label and date with the same product. We do this regardless if food products became out of date or not. I was reprimanded for bringing this issue up.

There was a collapse of the roof in the back, which presented a significant work hazard. In addition, it is a health code violation to stay open. She forced me and other employees to continue working. I have photographic evidence of both of the roof incident and the expired bread.

I then requested two days off work, with a two week notice. The general manager approved this. I reminded her again before the days came. She again said it was fine. When I returned to work after those two days, she wrote me up for not asking her for two days off, which is a blatant lie.

In addition, we had an employee working there who showed signs of mental instability. Some members of the crew, including myself, feared for our safety. I reported this to the shift leader, Tim, and he took it up to the general and district managers. He said that they want us to leave him alone, for fear of committing violent acts. He was never written up, counseled, terminated, or any other action taken up because the general manager stated he has been working there for a year, and showed up to his shifts as the rationale defending her choice.

I tried to fix these issues at store level, following the chain of command, which had no effect. Later on, the assistant manager, who has worked at this store location for many years, acquired information about her working there illegally and spoke to me about it. A couple of days later, she was gone from the store- with no reason provided or notice. When asked why she left, Juana Sanchez stated she left for “personal reasons.” I then told my shift leader that I heard the general manager might be working there illegally. I was terminated for that reason the very next day by the district manager. All three are involved in covering these allegations up.

How should I proceed?

Asked on 2/19/14, 12:31 pm

1 Answer from Attorneys

Stephen B. Pershing Stephen B. Pershing, Esq.

Hi, and thanks for this sane and cogent account. Here's what I see, and this is just under federal law: USERRA, ADA, FLSA, the MWPA, and FDA and USDA whistleblower protections.

The federal Uniformed Services Employment and Reemployment Rights Act forbids job discrimination against vets. The Americans with Disabilities Act forbids discrimination against persons with disabilities regardless of veteran status. Conceivably the leave dispute you mentioned could raise a Fair Labor Standards Act claim. And the federal Food and Drug Administration (part of the U.S. Dept. of Health and Human Services), as well as the U.S. Dept. of Agriculture, will have statutory provisions and regulations on food safety that it sounds like your former employer violated repeatedly. The National Whistleblower Protection Act gives you a claim against the employer if you're disciplined or fired for raising federal law violations, even inside the company. The FDA and USDA may also have statutes or regs prohibiting retaliation against folks who blow the whistle on violations of their food safety standards, which means you can add whistleblower retaliation to your claims. Here's an excellent 2013 Congressional Research Service survey of anti-retaliation statutes:

There's lots more to look at--other fderal statutes, the Va Dept of Health statutes and regs, their retaliation protections, other possible state law claims, the nature of your disability, your employer's personnel policies, and of course the facts the employer will try to adduce against you, all of which we have to take seriously as we assess your likelihood of prevailing in a lawsuit. (That, in turn, affects how likely an employer is to settle with you before the suit gets filed.) There's the question of a private right of action, which not all statutes have. And there's the question of forum, meaning where to bring your complaint--for instance, under USERRA you can go to the U.S. Labor Dept., and under the ADA you have to file with the EEOC within six months, then wait six months for them to act, before you can sue. There's also the complex matter of what you've called working illegally--I take it you mean working while in a U.S. immigration status that doesn't allow it. Immigration statutes also have retaliation protections, but I expect you'll have no claim yourself against the employer for hiring someone not authorized to work in the U.S.

Best to consult with a lawyer on all this--you knew I was going to say that, but it's true. Evaluating a case like this and its prospects for success is more complicated than just spotting the issues I've flagged here. Feel free to get in touch with me. My little firm handles cases like this and would be glad to meet you for a consult.

Steve Pershing

The Chavers Firm, LLC

1250 24th St., N.W., Ste. 300

Washington, D.C. 20037

(202) 467-8324

[email protected]

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Answered on 2/19/14, 1:27 pm

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