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Don’t fall into the retaliation trap: Handle ‘toxic’ worker’s complaint with care

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in Discrimination and Harassment,Human Resources

Some employees are nothing but trouble. They complain constantly, and even gripes that might have some merit are often exaggerated. However, you must think twice before you summarily terminate such an employee.

Reason: You could be falling straight into a retaliation trap. Treat such toxic workers with care. Don’t give them any ammo to launch in a retaliation lawsuit.

Investigate every complaint. Follow up to make sure no retaliation occurred. And be patient. As long as you are confident that you have properly investigated the complaints and addressed the valid ones, don’t worry about potential litigation.

Recent case: Lissa worked in the photo department at a Costco warehouse store. When a manager hired a former employee as a temporary worker, Lissa wasn’t happy. The temp had allegedly harassed women before, including telling a co-worker that he’d “rather have sex with an experienced woman” than younger women and that the music he was playing in the lab was what he liked to play while having sex.

Lissa complained that he encouraged her to strip for him. Management separated the two after concluding that the incident didn’t rise to sexual harassment.

Still, Lissa kept complaining that he stared at her and made her uncomfortable.

Over the course of several months, Lissa complained about other em­­ployees who allegedly harassed her. She also complained that her boss was retaliating against her by yelling at her, changing her shifts on short notice and otherwise making work life difficult for her.

Again, the company investigated and concluded that while the supervisor’s behavior was unpleasant, it wasn’t retaliation or harassment.

Meanwhile, managers concluded that Lissa was “toxic” and could never be satisfied. At one point, Lissa left a voice mail on the company’s complaint hotline. She forgot to hang up the phone while speaking with a co-worker. The ­conversation was therefore accidentally recorded—and included Lissa’s allegation that another supervisor was having a sexual relationship with her supervisor.

When the recording was played, Lissa was suspended for spreading rumors. When she returned to work, she was warned against further gossip and told not to discuss the investigation with co-workers.

When she did, Costco fired her. She sued, alleging retaliation.

In court, the company claimed it fired her for disobeying orders.

But the court said a jury might see things differently. The case will go to trial, and a jury will decide whether Lissa was fired for violating a rule or because the company thought she was fishing for lawsuit material. (Cottrell v. Costco Wholesale, No. 10-3154, DC MN, 2012)

Final note: Lissa’s sexual harassment claim was tossed out. The court said nothing she described and had brought to management’s attention rose to the level required to ­create a hostile work environment.

Lissa had made additional allegations involving yet another co-worker who allegedly flashed his penis, showed her pornography and sent offensive texts. However, she never complained to management about that particular co-worker. Because the company never got a chance to investigate the claims (and because Lissa knew she could bring the matter to management’s attention), the company wasn’t liable.

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