XXX
[ENTER ADDRESS]
XXX
XXXX
[ENTER ADDRESS]
RE: RESPONSE TO SEVERENCE AND RELEASE
Respectfully,
This letter serves as my formal response and counter offer to the Severance and Release that you sent me following the termination of my employment on XXX
The Severance and Release cites a severance pay of $38,076, less required deductions. In consideration of said payment, you expect me to release you of all claims I have against your company. It is further notable that you expressly deny any liability for the claims I have against the company.
I respectfully disagree with your position as expressed in the Severance and Release. Notably, I have evidence showing your illegal and unethical conduct, and how you retaliated against me. Please be advised that I find your conduct to be liable as follows:
- Retaliation
Both Title VII and the Texas Commission on Human Rights Act prohibit employers from retaliating against employees for engaging in protected activities, including filing a complaint. See XXXX To establish a prima facie case under Title VII or the TCHRA, a plaintiff must show that (1) he participated in protected activity, (2) his employer took an adverse employment action against him, and (3) a causal connection existed between his protected activity and the adverse employment action. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir.1999) (Title VII).
In this case, my reporting of the illegal and unethical conduct of your company, for instance, by filing the 211, was a protected activity. When you realized that I had sent the 211, and after I raised many concerns about the unethical practices at the company, you started retaliating against me. For instance, you refused to retrieve emails that I asked for. I ended up having to use my outlook to restore the emails. Next, Clay Aaron (the president) refused to meet with me. My work was also deleted on teams. Further, you got rid of half of AP positions, kept the one that has been reported severally, and moved it to AR. I assert that there is a direct connection between the reports and concerns I raised and the retaliatory conduct. Had I not made the reports and raised the concerns, you would not have retaliated against me.
- Fraud
“The elements of fraud are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), citing Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977).
In this case, your Company meets all requirements for fraud. For instance, the company misreported AR by $1.5. Million. Besides, Saddock, the auditor, and the owner’s son gave me the grey areas of paying or not paying taxes, and emails showing notifications of needed changes yet no change was ever made. I can subpoena the tax manager to show the misreporting, and changing of payroll and fringe benefits. You have also not paid unclaimed property tax because there have never been penalties. It is notable that after raising my concerns about the misreporting, you committed acts of retaliation against me.
- HIPPA violation
Under HB 300, the Texas HIPAA law, a covered entity is any Texas individual, business, or organization that comes into possession of Protected Health Information. A “covered entity” within Health and Safety Code chapter 181 must comply with the privacy standards adopted under HIPAA, including the standards relating to “uses and disclosures of protected health information” and the applicable consent requirements. See Tex. Health & Safety Code Ann. 5 181.101(3). It is therefore a violation of HIPPA for a covered entity to disclose the PHI.
In this case, my co-worker’s HIPPA rights were violated when, after she fell down in her workplace, you forced a drug test on her to protect the company, before taking her to the hospital. The foregoing amounts to a HIPPA violation.
- OSHA violation
All Texas employers are required to adhere to or exceed all OSHA health and safety regulations. See 29 U.S.C. § 654). OSHA protects an employee’s right to report workplace safety concerns and violations of safety rules, and an employer that retaliates in any way against an employee who reports safety-related problems or participates in an OSHA-related investigation is subject to enforcement action in court by DOL. See 29 U.S.C. § 660(c)(1, 2).
In this case, there is an OSHA violation when you required people to work yet the roof was leaking. The leaks extended to personal desks.
It follows; to put it mildly, your denial of any liability is surprising considering the glaring illegalities and unethical conduct that I have pointed out above. Please be advised that I have pertinent evidence to support any and all of my averments herein.
For that reason, I respectfully disagree with your Severance and Release package and hereby make a counter offer to the Severance Pay. Accordingly, I demand you pay me compensation amounting to $____________ for the retaliatory conduct that you subjected me to.
- Violation of the AICPA basic rules
Rule 1.100.001 of the basic rules provides for integrity and objectivity. The rule provides specifically that: “In the performance of any professional service, a member shall maintain objectivity and integrity … and shall not knowingly misrepresent facts or subordinate his or her judgment to others.” The basic rules also mandate the compliance with the AICPA standards when preparing and submitting financial statements. See Rule 1.300.030 and Rule 1.310.001.
Further, persons making financial statements must affirm that the statements are made following applicable accounting procedures. Rule 1.320.010 provides in that regard that: “A member shall not state affirmatively that an entity’s financial statements or other financial data are presented in conformity with generally accepted accounting principles (GAAP) if such statements or data contain any departure from an accounting principle promulgated by a body designated by Council to establish such principles.”
Also, members of the AICPA must not commit acts that are discreditable to the profession. See 1.400.001. A member would be considered in violation of the “Acts Discreditable Rule” if the member cannot demonstrate that safeguards were applied that eliminated or reduced significant threats to an acceptable level. Further, a member violates the discreditable rule when he/she “a. Makes, or permits or directs another to make, materially false and misleading entries in the financial statements or records of an entity. b. Fails to correct an entity’s financial statements that are materially false and misleading when the member has the authority to record an entry. c. Signs, or permits or directs another to sign, a document containing materially false and misleading information.” It is also a violation of the rules for one to fail to file a tax return or to pay a tax liability. See 1.400.030.
In this case, the auditor/controller violated the AICPA basic rules identified above by: inter alia, allowing AR to be off, allowing AP to be off, misreporting earnings, not paying taxes, recording/making incorrect payroll tax, making incorrect payments, improperly recording fixed assets so that the company overall evaluation would be off, not protecting payroll information, failure to monitor KPIs.
Please further note that your failure to accept my counter offer would mean you opt to have the matter decided in court, which may be detrimental to your company’s reputation.
Thank you for your prompt consideration of this matter.
Sincerely,
_________________
XXXX
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