The University of Alabama at Birmingham (UAB), my former employer, apparently thinks the answer to that question is no.
Ron Lyas, the EEOC investigator who is handling my charge against UAB, recently asked to meet with me. Lyas said he could not provide a copy of UAB's response, or even show it to me, but he wanted to read it to me and get my feedback.
Lyas indicated that UAB's response had been prepared by Anita Bonasera, director of employee relations, so I wasn't surprised to hear that the document was filled with misstatements. But I was taken aback by one statement that was so over the top that it could only be called a "whopper" of a lie.
How inept is UAB in handling employee relations? It gives Bonasera the task of responding to my discrimination charge, even though she has no first-hand knowledge of what took place in my case. And she wasn't present for my employee grievance hearing--the one that ended with a committee finding that I should not have been terminated.
I expected UAB's response to be filled with all manner of horse feces--and I wasn't disappointed. But my jaw hit the floor when Lyas got to the part about Doug Gillett, one of my former coworkers in the UAB Publications Office.
Gillett, you might recall, stepped in doo doo when The Birmingham News reported that he was using university equipment to blog and conduct political activities on UAB time. This was in 2004, and Doug was working as a volunteer on John Kerry's presidential campaign. It was clear that Doug had indeed violated university policy, and probably state ethics law, by using state-owned equipment for political purposes.
Doug was about 25 years old at the time, and I think everyone in our office was relieved when he received only a warning and was not fired. I was particularly pleased because I consider Doug a friend and an excellent coworker, and I didn't want to see him get the ax.
But when similar charges arose against me about four years later, I could not help but notice how differently I was treated, considering that I was 51 years old at the time.
Actually the facts in my situation weren't all that similar to Doug's case. It's undisputed that I was not blogging at work, I was not conducting political activity at work, and I was not violating UAB policy or state law in any way. I simply was performing a task--keeping up with current events--that was part of my job description.
So why was I placed on administrative leave, placed under investigation for my computer use, and then fired? Why did none of those things happen to Doug Gillett, my young coworker?
Well, that goes to the heart of my age-discrimination claim, and UAB has no defense for it. But they are trying to concoct a defense out of thin air.
According to Ron Lyas' reading of UAB's response, here (in paraphrase form) is what UAB told everyone on our staff in the wake of the Doug Gillett case: We've given Doug a warning, and we are not going to fire him. But the next person who blogs or conducts political activity with university time or equipment will be fired immediately.
Let's ponder a couple of questions about this statement.
First, is it true? No, it's not even close. I was in the staff meeting where Doug's punishment was addressed, and I've already written about it on this blog. About eight people were in the meeting, and I assume all of them have a pretty good recollection of what was said. Anita Bonasera was not among them, and her EEOC statement indicates she has no clue about what took place.
What really happened in the meeting? Our office reported at the time to public-relations director Gary Mans, who since has moved on to the University of Louisville. Mans, apparently at the urging of UAB President Carol Garrison, issued defamatory statements about me after my "termination," so it's safe to say I'm not one of his biggest fans. But I thought Mans handled the Doug Gillett situation just right. And here is what I wrote about it in an earlier post:
When Doug got into hot water, I think everyone in our office was afraid he was going to be fired. But I thought UAB handled it the right way. Gary Mans--the same guy who issued President Carol Garrison's goofy statement about me--gathered everyone in our office together and said that Doug had been warned, but was not going to lose his job. Gary reminded all of us that we should not blog or do any kind of political activity at work. But he also added-and I'm paraphrasing here--that the department and the university didn't want to be "computer Nazis." He knew that we all used the Web extensively for our work, and he also knew that most everybody occasionally checked a news site, a sports site, a music site, etc. He said that was fine and he wanted to maintain a relaxed, productive atmosphere. Mainly, he said, just don't blog or engage in political activity at work.
Here's our second question about UAB's statement regarding the Doug Gillett situation: Does it make any sense under the law? The answer is no. In fact, UAB is admitting that it set up a discriminatory framework in our office.
UAB, like many universities, has an Acceptable Use Policy (AUP), which governs the use of its computers and networks. We've written previously about the AUP, and it should be a very simple policy to understand--and to implement. Here is how we described the policy in an earlier post:
UAB's Acceptable Use Policy states that any violations should be handled with the university's progressive discipline procedure. As defined in the You & UAB Handbook, that process is to start with an oral warning, then proceed (if necessary) to written warning, and finally possible termination.
If Anita Bonasera's account of the Doug Gillett staff meeting was true--and it isn't--it would represent a gross violation of UAB policy and federal law.
UAB policy states that any alleged violations of the AUP are to be handled on an individual basis, with progressive discipline that begins with an oral warning. Bonasera's claim that future alleged violators would face immediate dismissal flies in the face of university policy.
It also flies in the face of federal law. To say that one employee's possible punishment is going to be skewed, based on an earlier problem that another employee had, is a classic example of "disparate treatment." And that is the fundamental issue at the heart of discrimination cases.
If Gary Mans had actually said in our staff meeting what Anita Bonasera claims he said, he would have been setting UAB up for multiple discrimination lawsuits down the road. I would not call Gary Mans a beacon of enlightened management, but he certainly is not stupid enough to do what Bonasera says he did.
In addition to being false, Bonasera's statement to the EEOC is absurd under the law. But it really is a mere sidebar to my case. The key facts are these: UAB's own actions show that I simply was doing my job. UAB never initiated progressive discipline with me because it had no reason to do it--I wasn't doing anything wrong.
UAB's own investigation showed I wasn't writing my blog at work. And under the university's own definitions, I wasn't conducting political activity at work.
Alabama, like most states, is an "at will" employment state, meaning workers can be fired for a good reason, bad reason, or no reason at all. But they cannot be fired for an unlawful reason.
The disparate treatment evident in Doug Gillet's case and my case goes to age discrimination--which is unlawful. The disparate treatment evident in my case and the case of two female employees (who used university computers to send homophobic and racist messages, clear violation of UAB policy) goes to gender discrimination--which is unlawful. The retaliation I experienced after complaining to both my immediate supervisor and her superior about age discrimination, and filing a formal grievance related to those concerns, goes to retaliation--which is unlawful. And UAB's failure to follow its own policies goes to wrongful termination--which is unlawful.
And that doesn't even touch on the fact that UAB, as a government entity, cannot violate my First Amendment rights--and Anita Bonasera admitted to me in a taped phone conversation that I was targeted because of my blog's content about the Don Siegelman case. That is unlawful.
I came away from my EEOC meeting with mixed feelings. On one hand, it was enraging that a public institution would make false statements to the federal agency that oversees anti-discrimination laws. But on the other hand, it was heartening to know that UAB had to resort to falsehoods to come up with some defense for its actions in my case.
The truth is this: UAB has no legitimate defense for its actions in my case--and the university's response to the EEOC proves it.