How to Handle a Teflon Employee
Employers frequently believe that they cannot discipline or adversely affect the employment of employees who have complained about violations of various state or federal laws or who have played the role of whistle blower. Worse, there are employees who believe their employment is “untouchable” if they complain or blow the whistle. In a recent case one such employee got a rude awakening: Imbornone v. Treasure Chest Casino.
Timing Looked Bad, But… Sylvia Imbornone had worked as a surveillance agent for Treasure Chest Casino for seven years when the casino fired her. In 2002, she complained that a female co-worker was sexually harassing her. After an investigation the casino terminated Imbornone's harasser. Additionally, the company met with the entire surveillance department and reviewed its harassment policy, which indicated the company could terminate employees who violated the policy.
Approximately three and one half months later, a male surveillance agent complained that Imbornone had sexually harassed him. Although Imbornone admitted the inappropriate behavior alleged, she contended the man reciprocated her conduct. The company suspended Ms. Imbornone pending additional investigation.
During Imbornone's suspension, her attorney sent the casino a letter with a signed statement in which Imbornone admitted that she had engaged in the inappropriate conduct but which also complained that her co-workers were sexually harassing her. The company then terminated Imbornone for violating its sexual harassment policy. She subsequently filed a lawsuit in federal court against the company alleging that it terminated her for complaining about sexual harassment.
…Timing Isn't Everything. The district court determined that Ms. Imbornone did not present any evidence that her complaint and termination were related and granted judgment to the casino.
In its holding, the court noted that Imbornone's first complaint had led to the termination of a co-worker's employment, that Imbornone had attended training, which indicated that termination was a possible consequence of violating the harassment policy, and that she had admitted engaging in inappropriate conduct. Thus, Imbornone failed to show that the company's decision to terminate her employment was a pretext for retaliation.
Lay The Groundwork Early. The key questions then are when is an employer most at risk for retaliation claims and how do you avoid them. First, adverse actions on the heels of an employee's complaint (even one made during the disciplinary process) can make adverse action seem too risky because the timing could lead a person to infer a causal connection between the complaint and the action.
The federal appellate courts currently are split on whether a temporal nexus standing alone is sufficient to give rise to an inference of retaliation. Nevertheless, if the basis for the decision is well-documented then an employee's chances of prevailing drop considerably — especially if the decision was made before the protected activity took place.
One crucial point is to document decisions as they are made and not just after they are communicated. For example, if you decide to terminate an employee but want to wait until after the holidays or after a project is complete, and the employee complains in the interim, the employee's case looks viable because communication of the decision was delayed. But if the decision and basis for delay have been memorialized, then the documentation can help negate the nexus between the complaint and the decision.
Documentation can take some of the shine off of a Teflon employee.
Myra Creighton is a partner with Fisher & Phillips Law Firm. Her practice in labor and employment law focuses on litigation and counseling clients concerning issues under the Americans with Disabilities Act, Family and Medical Leave Act, and sexual harassment. Myra may be contacted at 404-240-4285 or firstname.lastname@example.org. This information provided is general and educational and not legal advice. For additional information go to www.hospitalitylawyer.com.
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