Boss had lots of documentation, but was he just papering the file?

by on December 6, 2010 · 2 Comments POSTED IN: HR Cafe
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Here’s a scenario based on a real-life employment law case. How do you think the court ruled?

“So, Ms. Demetrios, you had a clean personnel file until just after you made your sexual harassment complaint?” plaintiff’s attorney Justin Case asked.

“That’s right,” Gina Demetrios said. “I had one warning for tardiness about five years ago, but that was all. And my reviews were always satisfactory.”

“That is, until you complained,” Case prompted his client.

“Yes,” she said. “A month later, my supervisor, Brad Childs, gave me what we call a Learning Plan. It’s not supposed to be disciplinary, but it goes in your personnel file just the same. And then a month after that he put me on the first of three performance improvement plans, which eventually led to my termination.”

A model employee
When Brad took the stand, Gina’s lawyer asked, “Isn’t it true that Ms. Demetrios was considered a model employee until she complained of harassment, at which time you began to retaliate against her by papering her file with trumped-up performance issues?”

“I didn’t retaliate,” Brad said. “I had nothing against Gina. I investigated her complaint, but didn’t find any hard evidence against the alleged harasser.”

“Isn’t the alleged harasser a personal friend of yours?” Case said.

“Yes, he is,” Brad admitted. “But that doesn’t mean I was out to get Gina.”

Sudden or not?
“Then perhaps you can explain why Gina’s performance suddenly turned so bad,” Case said. “The timing is suspicious, wouldn’t you agree?”

“It wasn’t sudden,” Brad said. “She had these same issues before. As an assistant manager, she was supposed to foster cooperation among the associates, and she didn’t do it well.”

“But you never recorded any such problems previously,” Case said. “All your documentation and the performance plans date from after her complaint.”

“We gave Gina every chance to improve,” Brad said. “We started the progressive discipline process. We gave her almost a year to work out her issues before we had to let her go. It’s all in her file.”

“You gave her a year so you could lay a paper trail and disguise your retaliation,” Case said. “You intended to fire her all along. We have copies of e-mail in which you discussed terminating her six weeks after her complaint.”

“As I stated, her problems were ongoing,” Brad said.

Did the company defeat Gina’s retaliation lawsuit?

Management lesson

No way. A court said the case was strong enough to go to trial.

The court pointed that Gina “only started receiving frequent reprimands after she engaged in protected activity” – that is, her harassment complaint. It looked as if Brad had papered her file with termination in mind – especially when he had discussed termination shortly after she made her complaint.

Cite: McBroom v. Barnes & Noble, No. 4:09CV2417, N.D. Ohio, 10/8/10.

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2 Comments on This Post

  1. Lora Hassani
    December 8, 2010 - 6:14 pm

    I had a similar experience with a manager. He would frequently tell me about how poorly his assistant was doing at providing support to his team, but he would never put anything in writing despite my repeated recommendations. He never really talked to the employee other than to tell her to get along with the other team members. Six months later she had a falling out with a team member that caused her to file a complaint of harassment. That’s when the manager wanted to know how to terminate her employment. All of that had to be put on hold until the harassment issue was resolved. Once the harassment topic was over, we worked on the performance issue for the assistant. In the process, the employee decided to move on to another opportunity. Timeliness is very important.

  2. Lora Hassani
    December 8, 2010 - 6:14 pm

    I had a similar experience with a manager. He would frequently tell me about how poorly his assistant was doing at providing support to his team, but he would never put anything in writing despite my repeated recommendations. He never really talked to the employee other than to tell her to get along with the other team members. Six months later she had a falling out with a team member that caused her to file a complaint of harassment. That’s when the manager wanted to know how to terminate her employment. All of that had to be put on hold until the harassment issue was resolved. Once the harassment topic was over, we worked on the performance issue for the assistant. In the process, the employee decided to move on to another opportunity. Timeliness is very important.

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