Appeals Court: "Disgusting" Gestures OK for Workplace


Update added 10 a.m. February 23
Wal-Mart managers got you down? Why not tell 'em how you feel?
  • 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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