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…