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Beat retaliation suit by documenting misdeeds

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in Employment Law,Human Resources

Sometimes, it is clear that an em­­ployee will never get along with her bosses. But if she has raised concerns about discrimination or other workplace problems, it may be hard to do much about it for fear of being accused of retaliation.

Solution: Make sure you can show you disciplined the employee because of her behavior, not her complaints.

Recent case: Shelly, who worked for a seniors independent living community, had a contentious relationship with her supervisor. She also frequently questioned her employer’s compliance with federal law in how it marketed homes in the community.

Shelly and her boss frequently argued about Shelly’s attitude and her refusal to fill out forms and enter data into the computer system. Shelly was often told to communicate respectfully and follow her supervisor’s directions.

At one point, Shelly called a local housing agency and complained about her employer’s marketing guidelines. She was allegedly told that the practices might be illegal.

Around the same time, Shelly applied to become a board member of an association of senior communities. She provided a statement for the election, which the association published in its newsletter. This was the last straw for her boss, who said the statement criticized the employer and was disrespectful. Shelly was fired.

She sued, alleging retaliation for calling the housing agency.

The employer argued that it had fired Shelly for her long history of being argumentative and disrespectful, culminating with the newsletter statement.

The 3rd Circuit Court of Appeals said the employer was on sound footing. It concluded that the history of disrespect, along with the newsletter statement, were independent grounds for Shelly’s discharge. (Newell v. Heritage Senior Living, No. 16-1463, 3rd Cir., 2016)

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