I am a sports fan. What I define as a “sports fan” is someone who enjoys watching a football or basketball game on TV after a long day at work. I freely admit that I cannot name any players on the Kansas City Royals, Pittsburgh Pirates, or the Toronto Maple Leafs. I guess I enjoy watching the game as opposed to reading stat lines or criminal dockets.
One aspect that I enjoy about professional sports is the camaraderie and friendship between players. I often hear players talking about teammates and saying things like “we go to war with each other,” “we are closer than brothers,” and I think NFL star Terrell Owens even cried last year when talking about “his quarterback.”
However, the second a player signs a contract with a new team or is traded to another team, it’s a whole different story. Suddenly, the player that was once “his brother” turns into his “drunk brother in-law,” enemy or traitor. Trash talking, name calling, and insults usually follow (until the player rejoins his old team and they are best friends again).
The same is true in the workplace. People often become acquaintances, close friends, and confidants with their fellow office mates. Working together on projects, having deadlines, and working towards a common goal brings people together.
Being that the majority of my work involves labor and employment law, most of the issues or problems that my clients are going through occur at the workplace. It therefore makes sense that the people who would have seen the problems/incidents first hand, whether it be an argument with a manager, an accusation of poor performance, harassment, or a hostile work environment, are co-workers. It is very likely that the worker in the cubicle next to you actually witnessed the alleged altercation or overheard the racially motivated comments made about you when your supervisor passed by. It is also likely that you had a discussion with that co-worker after the altercation and spoke about what just happened.
In any legal proceeding whether it is before the EEOC, MSPB, arbitration, or court, that co-worker is likely going to be your best witness. They will be able to testify about what was said, the tone of voice, the reaction, and anything else they may have seen or heard.
Many times when I am preparing for a trial, the client will tell me that I have to call a specific co-worker because he or she witnessed the incident and that they spoke afterward about it and he/she agreed that I was totally correct and did nothing wrong. I then get very excited and call the co-worker asking them exactly what happened. More often that not, the reply I get is one of the following: a) who are you and why are you bothering me; b) I do not recall anything you are talking about; c) I saw nothing and heard nothing; or d) I do not want to testify.
How could it be that someone who clearly saw what happened, was someone you trusted as recently as last week, and someone you considered a friend, suddenly “changed sides” and went to “team management?” There are probably a lot of answers out there but I think it comes down to self preservation. People want to keep their jobs (especially in this economy) and know that if they testify against there manager, their next performance review is probably going to stink.
So how do you get around this problem and keep your friends? In my experience, the best way to handle this is to write a memorandum of record when the event occurs and to have co-workers write one too. A memorandum of record or note to file can simply be a one paragraph signed and dated document that says: “I Bob Smith, on January 1, 2008 witnessed Tina Jones walk over to the cubicle of Walter Reed and told him that he should consider retiring because he was getting a bit older.” Make sure that Mr. Smith signs and dates that document (and that you get a copy of it). Mr. Smith should also not be under any pressure or refuse to give you the statement because at that point in time, you are not talking about a lawsuit, lawyers, or a trial. You are just asking a favor from a friend to write down what he or she saw.
Using that example above, say that we are now in April 2009 and we are preparing for Walter Reeds hearing (based on age discrimination) before the EEOC. Mr. Reed tells me that he has a great witness, Mr. Smith, who overheard comments about his age and retirement. I now call Mr. Smith and ask him if he recalls what occurred on January 1, 2008. If he does not recall, I just pull out the signed statement and “refresh his memory.” If he does not want to testify, I can call him anyways and refer him back to his statement and even if he says he cannot remember it, I still have his sworn statement that he admits was written last year and has his signature underneath it.
Using this advice, you should have a much better chance at defeating summary judgment and being successful at a hearing or trial.
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