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Bisexual U of U Former Employee Claims Wrongful Termination

Like many employees every year, Heidi Borjesson lost her job in the University of Utah’s physics department because of a reduction in force in 2005.

But unlike most “RIFed” employees, who are demoted, reclassified or let go because of departmental restructuring or a lack of money to pay them, Borjesson says her ‘RIFing’ had nothing to do with a budget shortage and everything to do with a supervisor’s dislike for her and a gross violation of the university’s employment policies.

“I’m not calling it a reduction in force,” said Borjesson, a former associate-level accountant of fifteen years’ standing in the physics department. “I’m calling it a firing because I believe that’s what it was.”

In her suit against the university, Borjesson alleges that she was wrongly and involuntarily terminated from her position because her supervisor at the time, Roberta McCormick, disapproved of Borjesson being bisexual and taking personal preference days to care for her animals.

“It was irksome to [McCormick], for example, that Heidi’s former husband would come and have lunch with her in spite of the fact that it was known in the office that Heidi had a girlfriend,” said Reed Pruyn Goldstein, Borjesson’s attorney.

But Goldstein said that Borjesson’s suit is not about being targeted because of her lifestyle and sexuality. Rather, he said it is about McCormick violating university policy in preferring a less experienced employee over his client when the possibility of a reduction in force was brought to her attention.

In a complaint filed in Third District Court in February, Borjesson alleges that McCormick favored coworker Shanon Lake over her for a number of reasons “including but not limited to the facts that Ms. Borjesson is a lesbian and Ms. Lake is not, Ms. Borjesson ‘mothered’ animals and Ms. Lake ‘mothered’ children and Ms. Lake was weathering a divorce and Ms. Borjesson was not.” Although the women had similar job duties, Lake had only worked in the department for six years versus Borjesson’s 15, and university policy, according to the complaint, gives preference by seniority in such cases.

“As of October 2004, Ms. McCormick knew that if a reduction in force were to take effect … and impact one or the other of Ms. Borjesson or Ms. Lake, Ms. Lake’s employment would be the one terminated,” the complaint reads.

Knowing that she couldn’t alter either woman’s seniority, Goldstein said McCormick got around the policy by reclassifying Lake’s position, essentially changing her job title (from associate accountant to accounting specialist) but not her duties in what Goldstein calls a “sham promotion.” The complaint also alleges that McCormick informed Lake of her reason for changing her job title.

“Roberta [basically told Shanon], ‘Hey guess what? You’re getting a promotion but you’re not getting an increase in pay and your duties won’t be changed and reason is we want to eliminate Heidi,” Goldstein said.

Although Borjesson said she didn’t know anything about the “sham promotion” until later, she said she had a feeling that “something wasn’t right” when McCormick gave her a written disciplinary notice on Dec. 16, 2004 and told her she had only three business days to respond to it – despite the fact that Borjesson had made it known she was leaving town to visit her family on the next day.

While Borjesson said she asked for and was granted an extension to respond to the disciplinary notice until Jan. 5, 2005, she said the university terminated her employment at the end of the month before she was fully able to contest McCormick’s complaints against her work.

In accordance with university policy, which will refer an employee for similar positions on campus for up to six months after being “RIFed,” Borjesson said she then applied for accounting positions in other departments.

“I can’t count no of jobs I applied for. It averaged out to applying for a job every other day at the university,” she said.

Despite what she calls “immaculate references,” Borjesson said she was repeatedly turned down right when she thought she had the job.

 “There were several positions where when we finished the interview, I’d feel relieved,” she said.  “But then I’d get a call two or three days later and someone almost always choked up saying, ‘I wish so much we could offer you this position but you were edged out by one employee.’” After hearing the same story several times, Borjesson said she wondered how many other employees there could possibly be who were applying for the same job at the same time with the same qualifications.

Although the difficulty she was having in being rehired puzzled her at first, Borjesson said things became much clearer when Lake contacted her and said McCormick was giving bad references when people from other departments called seeking information about Borjesson.

“She told me, “Not only is giving bad reference, she’s yelling about what a horrible person and employee you are,’” Borjesson said.

Goldstein said this behavior, coupled with what he terms Borjesson’s wrongful termination, forms the lynchpins of the suit against the university.

“The U not only breached the contract [of its reduction in force policy] materially, it also breached the implied covenant in the policy of what we call good faith and fair dealings. It’s something that is inherent in any contract including employment contracts,” he said. “They did it in two ways: One by not dealing fairly with her in terms of reduction of force and also in terms of what Heidi’s reemployment rights were in the six months following reduction in force.”

When asked to comment on the suit physics department chair Dr. Dave Keida said he had little to say on the issue because Borjesson’s 2005 “rifing” happened before his time as chair.

Noting that Borjesson had worked on some accounting matters for him in the past, however, Keida did say that a number of her allegations “caught me at a complete surprise” when he learned about them.

 “I never knew any of these things, and I don’t think it was common knowledge in the department,” he said.

“Her position was eliminated as a cost-cutting measure and I’m aware that she did file a grievance,” said Remi Barron, the University of Utah Public Relations Specialist to whom calls about Borjesson’s case are routinely referred. He also said that on-campus mediators had looked into her dismissal and found that it was “done for legitimate reasons.”

He said that he had not looked into any other on-campus jobs for which Borjesson had applied and therefore said he didn’t know about whether McCormick had given her bad references.

He stressed, however, that it is not the university’s policy to discriminate based on sexual orientation.

“We don’t discriminate for any reason, certainly not for that reason,” he said.  

Two years after her termination, Borjesson said she is still unable to find work at the university, or with any other state agency, and that the “financial fallout” has hit her hard.

“I was expecting to be employed in the month,” she said, adding that only the support of “a generous benefactor who said they believe in my case” has allowed her to keep paying her bills and her legal expenses.

She is seeking reemployment at the university without going through the probationary period new hires must face, a restoration of her retirement benefits and seniority and the payment of her court costs.

“At this point I feel pretty humiliated,” she said. “That I would allow myself to feel I’m not worthy of employment is bullshit. I’m a damn good employee and here I am not able to find work still” It’s like, do I have to change my name and move out of state? What’s that about? I’m not even getting answers back at all for interviews of any kind. I’m not even being asked for interviews. I don’t know what to do.”

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