Retaliation Claims: How One Employer Defended An Employee’s Claim That Supervisors Retaliated After She Charged Boss Harassed Her; Documentation Is Key

Sendai Parker, a credit analyst for a Los Angeles  area branch of Home Savings of America, charged that her supervisor sexually harassed her at a co-worker’s birthday lunch. The supervisor was eventually terminated. Then when Parker was fired two years later for alleged performance problems, she charged that her termination was the culmination of a retaliation campaign by other supervisors—but a jury sided with Home Savings. We’ll tell you how Home Savings’ handling of Parker’s performance issues helped the company win the dispute.

Employee Reports Birthday Back Rub

Parker complained to HR that her supervisor touched her back several times while sitting beside her at a bar during the lunch. The contact lasted only a few seconds. Two other female employees made similar complaints. And when the supervisor admitted to asking his secretary for a date in violation of company policy, he was terminated.

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Performance Problems Lead To Discharge

Randa Osman, Home Savings’ attorney, told CEA that over the next two years, Parker was counseled repeatedly for various problems. These included making errors in credit analysis reports; wearing satin baseball jackets that violated the company’s professional attire dress code; and excessive absenteeism. Finally, when Parker walked out of a counseling session with her supervisor, she was terminated for insubordination, poor performance and poor attendance.

Worker Claims She Was Singled Out

Parker sued. She claimed that after she reported her first boss for sexual harassment, other supervisors retaliated by unfairly singling her out for dress code and attendance violations. She pointed out that an employee who wore leather jackets wasn’t counseled about the dress code and that another worker wasn’t disciplined for excessive absences. Parker also said the criticisms of her work were groundless and the insubordination charge was a pretext for illegal retaliation.Home Savings denied retaliating against Parker, saying she was fired for numerous violations of company policy.

Jury Sides With Employer

A Los Angeles jury ruled in Home Savings’ favor. The following factors helped Home Savings successfully defend its termination of Parker:

• Home Savings documented that Parker was warned about performance and attendance issues. These included errors in her reports, playing computer games and reading Victoria’s Secret catalogs at work, and dress code violations. Plus, she was warned not to keep scheduling personal appointments for early afternoon and taking the rest of the day off, which frequently required her supervisor to work late to finish Parker’s work.

   

• The company showed Parker’s circumstances differed from the employees with whom she compared herself. In particular, one employee had eight absences in 12 months—the maximum company policy allows—but Parker had more. And the employee permitted to wear a leather jacket worked in another department, so Parker’s supervisor had no authority to counsel him about his attire.

   

• The final termination decision wasn’t made by Parker’s supervisor but by the HR department, which determined that Parker’s poor performance, violation of company policies, excessive absences and insubordination were cause for termination.

Documentation Is Key

As this case demonstrates, you’ll be better able to defend against a retaliation claim if you scrupulously document performance issues and give the employee concrete suggestions for improvement. Be sure to follow your policies to the letter. And it’s wise to have the HR department or a higher-level manager review the termination decision to ensure that your action is justified and consistent with how your company has handled similar situations in the past.