If an employee is suffering from performance problems and wants a transfer to another supervisor or position, be careful which details in the person’s history you share with the new manager. That’s especially true if the employee has a history of filing legal complaints.

You short-circuit future retaliation claims by leaving the new manager in the dark about the employee’s past complaints because you can show he or she doesn’t know about them. The employee can’t claim retaliation if the manager never had anything to retaliate against.

Tip: Before the transfer, purge the employee’s personnel file of any reference to the prior complaint.

Recent case: Costco employee Hilton Ridley filed an internal race discrimination complaint. Soon after, the company transferred Ridley to a different warehouse as discipline for arguing with his supervisor. After the transfer, his new boss wrote Ridley up for disciplinary violations three times in five weeks. So he quit.

Ridley then sued for retaliatory constructive discharge and was awarded $200,000. The jury believed Costco forced him to quit by writing him up in retaliation for his complaint.

Costco appealed, arguing that management at the new warehouse didn’t know about his earlier race-bias complaint. But the company had transferred his complete personnel file to the new location. The jury simply didn’t believe the new manager’s claim that he didn’t know Ridley’s history. (Ridley v. Costco, No. 05-5134, 3rd Cir., 2007)

Final note: Had Costco purged his personnel file of any reference to the prior complaint, it would have been harder to show the new supervisor knew about it and retaliated. 

 

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