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Prepare to prove firing wasn’t retaliation

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in Employment Law,Firing,Human Resources

Here’s a warning for HR professionals trying to determine if you should fire someone who has recently filed a discrimination or harassment complaint: If the employee complained about a supervisor’s actions, make sure the supervisor can’t manipulate the disciplinary process to punish the worker.

Recent case: Adil worked for a restaurant as a food runner. Over his supervisor’s objections, he got permission from HR to take intermittent leave for therapy on Wednesdays for about six months.

Then, Adil filed an internal complaint over alleged sexual harassment on the part of the same supervisor. He claimed the supervisor pinched his nipples and slapped his buttocks. Adil said he objected to what he considered sexual advances.

Soon after the complaint, the supervisor issued Adil’s first-ever disciplinary warning, allegedly for leaving his workstation without permission. Within days, Adil received a second warning, this for allegedly throwing a dish. Finally, the supervisor recommended Adil’s discharge for allegedly getting into an argument with three co-workers.

HR decided to investigate the third incident and spoke with the co-workers, who allegedly confirmed that Adil had yelled at and threatened them. Adil denied it ever happened, but HR concluded that the three co-workers were credible. Adil was fired.

He sued, alleging that his supervisor had set up the third incident and had leaned on the co-workers to lie about Adil’s conduct.

The employer argued it had conducted an independent investigation, but the court didn’t consider that sufficient. It said Adil’s case should go to trial so a jury can decide whether the third incident was a set-up or not. The court was openly suspicious because of the close timing of the sexual harassment complaint and the discipline for an employee with no prior workplace problems. (Elmessasoudi v. Mark 2 Restaurant, No. 14-CIV-4560, SD NY, 2016)

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