Performance Management and Documentation Save the Day!

 Posted 04-12-2012

As you read in February’s e-news, retaliation has been the #1 claim filed with the federal Equal Employment Opportunity Commission for the past three years, outstripping all kinds of discrimination and harassment claims, and comprising nearly 40% of all EEOC claims. So, does that mean you can never fire an employee who’s complained about improper treatment, even if you have plenty of good cause?

A recent federal appeals case shows that employers who are consistent in their performance management and documentation can beat the retaliation rap.

Daniel Galeski worked for the city of Dearborn, Michigan for seven years. During that time, he accumulated a raft of oral and written warnings for misconduct and poor performance, and was finally put on written notice that any further policy violations would lead to his termination. That’s when Mr. Galeski decided to file a sexual harassment complaint against his direct supervisor, claiming that the harassment had gone on for 18 months. The next week, a different supervisor issued Mr. Galeski a disciplinary notice for failing to complete his work and for dress code violations, so Mr. Galeski added a retaliation claim to his complaint. While the city was investigating Mr. Galeski’s complaints, another incident report was filed against him, this time for violating the city’s policy on employee use of a fitness center, and Mr. Galeski filed a third complaint.

After an investigation, Human Resources found no corroboration for Mr. Galeski’s complaints, and recommended that he be discharged for his repeated misconduct and insubordination.

The appeals court agreed, finding that the isolated incidents Mr. Galeski complained about were not severe or pervasive enough to be sexual harassment and that the city had legitimate, non-retaliatory reasons for firing him:

Galeski has a history of violating the City’s policies and being insubordinate…

[T]he issues that led to Galeski’s termination were inevitable once a more strict supervisor arrived…Based upon the City’s interviews with other employees who noted Galeski’s issues with authority, and Galeski’s own deposition testimony and written complaints to management which illustrate the same, his job was in danger regardless of his sexual harassment complaints. In light of his repeated issues with failing to wear his uniform and his reaction to his employer revoking his privilege to use the gym, there is no indication in the record that the City of Dearborn’s legitimate reasons for discharging Galeski were pretextual or otherwise invalid. Galeski v. City of Dearborn.

What this means to you:

This case teaches employers some important lessons: 1) Don’t wait to terminate. Mr. Galeski had earned 5 years of write-ups by supervisors who did not want to rock the boat before a new boss set—and enforced—higher standards. Employees whose performance is not up to par should be coached and counseled to success, but if those efforts do not work, then a well-planned termination is the best option. Keeping a trouble maker or poor performer will discourage good employees and encourage mediocrity. 2) Don’t wait to investigate. The city did a prompt, thorough, and impartial investigation of Mr. Galeski’s complaints, of which the court approved. 3) Document, document, document! The city’s documentation of Mr. Galeski’s performance and conduct problems was consistent and convincing.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:36+00:00

Share This Story, Choose Your Platform!

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.