It happens regularly: An employee is facing escalating discipline and fears for her job—so she files a surprise sexual harassment or discrimination lawsuit, hoping to stop her firing.
But you can fire her—if you can provide complete disciplinary records to justify that the decision had nothing to do with her complaint.
Recent case: Cheryl worked for a prosthetics company. A new office manager criticized her for what the manager called “emotional outbursts.” The manager began disciplining Cheryl for being short-tempered and otherwise “emotional.”
Cheryl was suspended with pay for two days after yelling at a co-worker about being “disrespected.” She was told she was being suspended so she could think about her behavior and determine whether she wanted to keep her job. When she returned to work, she apologized. She was warned that another outburst might mean termination.
The outbursts and failure to follow company rules continued. Cheryl was disciplined for smoking an e-cigarette at her desk, for slamming a phone down and loudly complaining about’s choice of someone else to train a new employee. She was placed on 120 days’ probation and warned she faced immediate termination for another outburst.
That’s when Cheryl complained that the general manager had sexually harassed her. The company investigated and concluded the charge was unsubstantiated. Shortly after, Cheryl had an argument with yet another co-worker in front of patients. She was fired.
Cheryl sued, alleging she had been terminated for complaining about harassment.
The court disagreed after reviewing the disciplinary records. It was clear that the employer had plenty of proof to back up its assertion Cheryl was fired for repeated arguments and outbursts, not in retaliation for filing the complaint. (Kaufenberg v. Winkley Company, No. A14-1514, Court of Appeals of Minnesota, 2015)
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