Appeals Court: "Disgusting" Gestures OK for Workplace

Categories: Bidness
Update added 10 a.m. February 23
WalmartFrown.jpg
Wal-Mart managers got you down? Why not tell 'em how you feel?

Good news for all you disgruntled WalMart workers out there: You can flip off your boss. You can even tell your boss that he "disgusts" you. And even after all that, your boss still doesn't have the right to fire you for misconduct! That means you can still get unemployment!

That's the latest from the Missouri Court of Appeals' Eastern District, which released a unanimous opinion today in the case of a WalMart maintenance man who both told a manager that she disgusted him and made a hand gesture that the court coyly declined to describe in elaborate detail -- but concluded nevertheless was "disgusting."

Go figure: The man was shitcanned on the spot. But that's not the end of the story.

The man, a one-year veteran of Wal-Mart named Nathan Nevettie, applied for unemployment benefits. Not surprisingly, Missouri's Labor and Industrial Relations Commission determined Nevettie to be ineligible because he'd been terminated for misconduct.

But the appeals court overruled that decision in its 3-0 ruling today. The main reason? WalMart never produced evidence that it had a written policy on offensive language or conduct.

Reasoned the court, "The first comment was rude and disrespectful, but it was not vulgar or obscene. Neither the comment nor the subsequent gesture was accompanied by aggressive or angry behavior. Although the gesture was disgusting, it was not confrontational."

And by that reasoning, the court found that Nevettie did not "intentionally disregard the standards of behavior that [his] employer had the right to expect of its employees," as precedent holds is necessary to show misconduct. Instead, the court wrote, the words and the gesture likely resulted from "simple lack of judgment."

The case goes back to the Labor and Industrial Relations Commission for further proceedings. But for those of you keeping track at home, it's interesting to note the precedent that our Court of Appeals has now delineated: a) it's not OK to have sex at work, even if your employer fails to expressly ban it, but b) it is OK to insult your boss, and engaged in unnamed-yet-disgusting hand gestures in his direction, if your employer fails to expressly ban that.

Thank God we still have some freedom to behave badly, eh?

UPDATE: For the record, Nevettie has denied making the statement or the gesture. The appeals tribunal hearing Nevettie's unemployment case found his employer's allegations "more convincing than [Nevettie's] testimony," and the appellate court did not revisit that issue. (The court noted that it defers to the original decision on issues of fact when "the findings are supported by competent and substantial evidence.")

A person purporting to be a family member contacted RFT via email to reiterate Nevettie's denial. The family member also stated, for the record, that the gesture Nevettie was accused of making was an "ass-wiping gesture." Duly noted.

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Nezello
Nezello

RE: UPDATE: For the record, Nevettie has denied making the statement or the gesture. The appeals tribunal hearing Nevettie's unemployment case found his employer's allegations "more convincing than [Nevettie's] testimony," (((NOT EXCATLY reporter Sarah Fenske))) The original deputy (DECISION) had a problem with Wal-Mart's story thereby ruling against Wal-Mart and granting his unemployment benefits. As well as there was a dissenting judge AT >>>>The appeals tribunal hearing who was not convinced of Wal-Mart's story and ruled against them<<<<. The lies told by Karen Horn were never decided in a court of law.

The Labor and Industrial Relations Commission judge is going to side with any employer more often than not. Call any attorney who has dealt with them and you just might get a laugh on the other end if you ask is the bald headed judge at Labor and Industrial Relations Commission fair and impartial to employees vs. employers... Maybe he gets a bonus or commission for reversing and/or denying claims, kick back from employers, unemployment insurance, etc.. WOW there's a story Sarah Fenske will never touch... Notice she could not even woman up about her story not being factually correct. It's all about the HEADLINE at another person's expense...

Former Employee
Former Employee

Wal-Mart pays, and treats, its employees like complete shit. (I speak from experience.) I just have trouble siding with Mega Corps. on this point. Or on any point.

Nezello
Nezello

Honey, not only do I understand the >>>WHOLE<<< case YOU KNOW IT ALL SILLY MORON, I'm as related to the plaintiff as you can get...

Nezello
Nezello

Leave it to the RAG RFT to fuck up the story. He never said jack shit to his boss!! If the stink finger reporter Sarah Fenske could read the WHOLE case Nathan denied telling another "employee" that she disgusted him. She was not his boss nor did he flip her off. He was granted and collected unemployment for months near $2000.00 because the 1st deputy did not believe Wal-mart, they appealed and won based on a corrupt Labor and Industrial Relations Commission judge. Nathan then appealed their appeal. Accordingly, Wal-mart could not convince the judges thereafter as the appeal continued of the Wal-mart version as being the whole truth and nothing but the truth.

All this high court said unanimous today in essence was if he had done these things (which he repeatedly called Karen Horn a fucking liar she was not his boss or immediate supervisor) Wal-mart had a duty to show it was a willful violation of their present understood policies and that they documented his understanding. Epic fail on wally worlds part... All Nathan ever said he did not quit his job this person made up lies about him to get him fired. He did not walk up to the nut Karen Horn and say you disgust me for no reason or at all, it did not happen. Nor did he make a gesture. The Jr reporter here Sarah Fenske is a headline grabbing stink finger...

Renew
Renew

Not well-written. The issue isn't whether the employee can be fired. He can. The court expressly says so. This is about whether the state can deny unemployment benefits , which you only get when you are fired.

Your Momma
Your Momma

Without cause. If you are fired with cause - i.e. you take a shit on your bosses desk and throw the dookie at customers - YOU ARE NOT ENTITLED TO UNEMPLOYMENT.

trcherrubic
trcherrubic

honey, your problem is that you don't understand the law. go read the case. there is a link. let the judges explain it for you.

Your Momma
Your Momma

No, I understand common and statutory law just fine.

Nezello
Nezello

Leave it to the RAG RFT to fuck up the story. He never said jack shit to his boss if the stink finger reporter Sarah Fenske could read Nathan denied that another "employee" said Nathan told her she disgusted him. She was not his boss nor did he flip her off, he made no gesture...

Nezello
Nezello

Leave it to the RAG RFT to fuck up the story. He never said jack shit to his boss if the stink finger reporter Sarah Fenske could read Nathan denied that another "employee" said Nathan told her she disgusted him. She was not his boss nor did he flip her off, he made no gesture...

DN
DN

This is silly ... he doesn't get his job back, he just gets unemployment. If you give your boss the finger, you get fired, nothing in this decision changes that.

Nezello
Nezello

Leave it to RAG RFT to fuck up the story. He never said jack shit to his boss if the cunt reporter Sarah Fenske could read he denied that another employee said Nathan told her she discusted him.

Your Momma
Your Momma

The decision to give him unemployment implies his firing wasn't justified.

So ya... it kinda does change things.. even if it doesn't give him his job back.

KittyLitterKing
KittyLitterKing

So, commentors, let me get this straight: three (relatively) liberal judges make a bad decision, and some how conservatives are going to get blamed because conservatives will ultimately want to change the law so courts don't make a similar bad decision in the future? And this is a bad thing?

Nezello
Nezello

Leave it to RAG RFT to fuck up the story. He never said jack shit to his boss if the cunt reporter Sarah Fenske could read he denied that another employee said Nathan told her she discusted him.

Your Momma
Your Momma

Huh? I am not blaming conservatives here. Just point out they will use this rediculously liberal decision to their political favor.

And it is warranted.

hotdogwaffles
hotdogwaffles

oh and the conservatives can only use this if they first mention that walmart got beat because they didn't have a written policy. I mean who is running that place a bunch of monkeys? wait don't answer that...

somedude
somedude

I agree with Your Momma. This is exactly what the conservatives will use to change laws to make it easier to fire workers. This is why companies are so hesitant to hire direct employees. There is a large threat of lawsuits when you fire anybody even for perfectly good reasons.

Your Momma
Your Momma

Hhaha.. this is ridiculous...

I am libertarian and very liberal in most regards, however this is the type of nonsense that conservatives will latch on to and use to run rough-shod over liberal agendas. It makes them all look foolish.

Really? It's okay to tell your boss to fuck off? And they can't fire you!?!?!?

astx813
astx813

Not necessarily, Mom. I'm not claiming expertise, but as I read it, the pitfall was a gap between the jerk's behavior and his employer's definition of misconduct. Certainly one could argue that what he did was inappropriate, but it sounds like Wal-Mart's employee guidelines (and definition of misconduct) simply didn't account for this. The fact that they mention his behavior wasn't "aggressive or angry," or "confrontational" suggests that the manual was more focused on behavior that was threatening. I'm sure that Wal-Mart has since updated their manuals; this is how we learn our lessons.

Look at it this way: the courts in this case are not trying to control workplace behavior. The employer has the right to craft the rules surrounding employment. The court is holding the employer to their own rules rather than overrule them with their own definitions.

Nezello
Nezello

(ASS)uming this is a jerks behavior is not knowing the full aspects of the case (open mouth insert foot). He was granted and collected unemployment near $2000.00 because the 1st deputy did not believe Wal-mart and so they decided to appeal, however they could not convince every judge of the Wal-mart version as being the whole truth and nothing but the truth. All this high court said unanimous today was if he had done these things (which he repeatedly called Karen Horn a fucking liar she was not his boss or immediate supervisor) Wal-mart had a duty to show it was a willful violation of present understood policies. Epic fail on wally worlds part... The jr reporter here Sarah Fenske is a headline grabbing stink finger...

Your Momma
Your Momma

You're not be clear in what you are contended happened. Very confusing.

In any event... the one part I do understand is 'Walmart had a duty to show it was a willful violation of present understood policies"

Um... common sense called... they're saying everyone with a brain knows you cannot tell your boss or your co-workers to 'fuck off' or use other verbal or physical vulgarities and expect to keep your job. Everyone understands that is requirement of employment. Whether or not it is explicitly written down.

Nezello
Nezello

Leave it to RAG RFT to fuck up the story. He never said jack shit to his boss if the cunt reporter Sarah Fenske could read he denied that another employee said Nathan told her she discusted him.

Your Momma
Your Momma

No. You're wrong.

You don't have to document that it's not okay to kill someone in the workplace, it's understood. Doing so will get you fired. So will telling your boss to fuck off.

Pretty simple common sense. Sorry you don't get it.

SarahP2584
SarahP2584

Actually, killing someone anywhere will get you in prison. As far as the actions leading up to said hypothetical murder, well, those would be considered threatening, would they not? An innocuous statement and gesture, however, are not. Telling your boss to fuck off probably will also get you fired, but only if there are established guidelines banning offensive language in the workplace as I'm sure there were in this case which is why the employee is fortunate he didn't tell his boss to fuck off. The court is just telling Wal-Mart that if they are going to provide rules of conduct for their employees, then those rules need to be clearly worded to ban disrespectful language/gestures if on employee can indeed be fired for using them. Although, I do think it's odd that Wal-Mart, being the massive corporation that it is, hasn't included this in it's code of conduct until now, apparently. Every job I've ever help has been pretty explicit regarding such things...

Weddash
Weddash

I'm not a lawyer but I am a paralegal in a firm specializing in employment law. I have to agree with astx813. These types of disputes over language in handbooks and manuals are common. The Court is saying that employers' policies need to be specific in their language.

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