When faced with discipline and the possibility of getting fired, some employees try to revive old complaints that have long since been resolved. They hope that resurrecting an old complaint—of sexual harassment, for example—will make their employer think twice about terminating.
But employers are entitled to get work done. Don’t let a ploy like this prevent legitimate and necessary discipline.
Recent case: Teresa Thompson worked as an auditor for a decade and then accused her supervisor of sexual harassment. She filed a sexual harassment complaint with the HR office, which investigated. Thompson declined to pursue the case after the supervisor offered a written apology.
For the next three years, Thompson continued to work in the same office without a complaint. Then she was transferred to another section where her work came under criticism for lack of accuracy and attention to detail.
Thompson then went to HR and requested a copy of her personnel file, including the sexual harassment complaint. She announced that she was going to “do whatever it took to make this right.” Three weeks later, she was discharged for.
She sued, alleging she had engaged in protected activity when she asked for her personnel file.
The court rejected her claim. It reasoned that Thompson was terminated for poor performance and that simply requesting a copy of an old complaint was not protected activity. (Thompson v. Somervell County, No. 11-50016, 5th Cir., 2011)
Advice: Be sure to check back regularly with any employee who has filed a sexual harassment or other complaint. Ask about retaliation and note the response. It’s additional protection because it shows the problem was resolved. That makes it much harder to revive a stale claim.
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