January 28, 2023
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When a problematic employee you fired starts claiming retaliation

Read Time:4 Minute, 38 Second

Question:

I’ve known for a long time I needed to fire our company’s operations manager. I hired her because she’d run her own successful business, presented herself well and had skills I lacked. Initially, her hire seemed a smart decision, and I turned over a lot to her. She refined and oversaw systems and handled day-to-day decisions, freeing me up to handle big picture issues and work with clients and key external stakeholders.

From the start, however, there were issues. Her domineering style rubbed people the wrong way. I tolerated it because I agreed with 90% of her decisions, even if I didn’t like the collateral damage that resulted when her temper got the best of her. Also, I liked how fiercely she attacked anyone who complained about the direction in which I was taking our company.

Unfortunately, she crossed the line two weeks ago in front of several dozen employees. She screamed at a well-liked employee and, when one of the other managers attempted to intervene, cussed out both using foul language. Within the hour, the employee and manager handed me their resignations. When I attempted to talk each into staying, both described prior incidents and told me they’d made their decision to leave.

By the next morning, other employees threatened to resign. I did what was necessary and fired the operations manager. I didn’t expect what came next — a letter from the operation manager’s attorney alleging I’d fired her in retaliation for complaining about safety problems related to our antiquated heating and ventilation systems. He attached copies of three emails she’d sent me during the prior five weeks.

I made the mistake of getting angry because this was bogus. I called her attorney and said I’d directed her to get bids to get the HVAC system fixed when she’d sent me the first email. He asked if I had an email to that effect and that made me nervous.

I called an attorney and told him I’d orally authorized her to get bids to fix our system after the first or second email. I’d even gotten testy with her when she sent me the third email because I’d already authorized her to handle the situation. The attorney told me my best course of action might be to pay the operations manager a settlement, so she’d agree not to sue. I can’t believe I need to pay for doing the right thing — firing someone who deserved to be fired.

Answer:

If your attorney accurately assessed the situation, you’re not paying for doing the right thing. You’re paying because you didn’t do the right thing soon enough.

By your account, you let your operations manager run roughshod over others. Also, you forgot that someone who fiercely attacked others might someday turn that attack energy on you.

[Employees who seemingly want to be fired may be seeking financial advantage]

Here’s what you need to know about your operation manager’s retaliation claim and the likelihood she can win in a court of law or before a regulatory commission.

Retaliation occurs when an employer punishes an employee for engaging in a legally protected activity. Protected activities include raising a safety, ethics, discrimination, systems integrity or environmental concern to co-workers, supervisors, the media or a regulatory agency.

Most retaliation claims result when employers unfairly discipline or fire good employees. Some occur when justly fired employees seize on circumstances (occasionally ones they’ve manufactured) to support claims their employer unfairly treated them. Besides firing, adverse retaliatory actions might include a negative performance review; discipline; a decrease in responsibilities; a layoff, transfer or shift change; and a hostile work environment.

To prove retaliation, your operations manager needs to prove she engaged in a protected activity (her safety emails substantiate that); suffered an adverse employment action (you fired her); and the adverse action resulted from her protected activity.

Once the plaintiff employee sets forth a plausible claim of retaliation, the burden of proof shifts to the defendant employer, who needs to show a legitimate business reason for the adverse action. Then the burden of proof shifts back to the plaintiff to prove the employer’s reason is a “pretext” that covers up the real retaliatory reason.

Here’s why your attorney suggests you might want to pay your way out of this. When an employer fires an employee soon after an employee engages in a protected activity, the timing can lead a judge, jury or regulatory agency to conclude retaliation.

It catches my attention that your operations manager sent you a third email after you authorized her to act. That either means you hadn’t authorized her, or she was setting you up in advance because she feared you might fire her.

Who might win this case if you don’t settle? That’s for a judge, jury, or regulatory agency to decide.

[How to handle the dreaded ‘You’re fired’ interview]





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