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The Serial Complainer

Employers are often rankled by the employee who complains, and complains, and complains. Employers who let emotions – frustration, annoyance, impatience, resentment – take over can get into trouble. Indeed, failure to address complaints promptly and thoroughly can lead to employer liability for hostility or harassment of the employee by coworkers. Worse still, these circumstances seem to breed additional claims of retaliation, as the employee inevitably points to comments and even body language from management as evidence that his or her complaint motivated subsequent employment decisions. As a recent case demonstrates, the employer that keeps its cool in reaction to the "serial complainer" will be best positioned to protect itself from liability.

The case recently decided by the Court of Appeals for the Seventh Circuit involved a food service worker who began a campaign of complaints about remarks and actions by two coworkers that she believed were racially motivated. The incidents at issue began when the employee and one coworker exchanged words in the elevator. The employer learned of this incident when the coworker complained about the plaintiff's hostile remarks toward her. The plaintiff then counter-complained that the coworker said "I'll do it again," which the plaintiff assumed referred to an unreported incident four years earlier in which the coworker slapped her on the back of the neck. A few days later, the plaintiff complained that she had heard that a second coworker had referred to her and others using a racial epithet. The employer immediately investigated both complaints. As both women denied the others' version of the altercation in the elevator, the employer decided to counsel both women about proper workplace behavior. As for the latter complaint, the employer's investigation revealed that the coworker had indeed made racially derogatory statements. It decided to bypass its usual first level of discipline (an oral warning) to issue a written warning to the coworker.

The plaintiff soon complained again, alleging another racially derogatory remark by the second coworker. The employer promptly investigated, but when it could not find another employee to back up the plaintiff's story, it decided not to discipline the coworker. A month later, the plaintiff told her supervisor she felt threatened and intimidated by her coworkers, and a week later, she filed a charge of discrimination with the EEOC in which she alleged discrimination based on coworkers staring at her, slamming pots and pans around her, and intimidating her. Again, the employer investigated her allegations set forth in the charge, but found no basis to take disciplinary action. Several months later, the plaintiff lodged a complaint with the employer that her supervisor forced her to work through breaks. Once again, the employer investigated, but could not substantiate her claim. Still, the plaintiff amended her charge with the EEOC to allege that the employer had retaliated against her by assigning her diminished work duties, forcing her to work through breaks, denying her overtime, and unfairly disciplining her.

Six months after the plaintiff filed her lawsuit alleging an illegal hostile work environment and retaliation in violation of Title VII, the plaintiff filed a grievance against the second coworker for making a threatening reference, and the employer once again investigated. The coworker denied the claim and alleged it was the plaintiff who threatened her. Finding no corroboration for either version, the employer declined to issue any discipline. Four months later, the plaintiff complained to the employer that the first coworker asked her "are you scared," after which the employer investigated and decided to verbally warn the coworker to cease such behavior. A month later, when the same coworker complained that the plaintiff splattered her with gravy and slammed pots around her, the employer, though it could not corroborate the coworker's claim, decided to warn the plaintiff about its policies.

Affirming summary judgment for the employer, the Court of Appeals agreed with the district court that there was no basis for employer liability for hostile work environment, because in each instance of complained-of hostility, the employer met its obligation to promptly investigate the complaints and, where appropriate, take action reasonably likely to prevent the conduct from recurring. The court highlighted the following steps appropriately taken by the employer:

Importantly, the court remarked, "This is not a case where the employer began to ignore an employee's complaints as time went on." In addition, the court noted that the law does not require an employer to actually stop the complained-of conduct. The response it takes must instead be reasonably calculated to prevent future instances. The court found that the employer's response to each complaint met the standard and, as a result, the plaintiff's hostile work environment claim failed.

This case demonstrates that remaining cool-headed, impassionate, and vigilant when dealing with multiple complaints between coworkers is the surest path to avoiding liability. Employers must avoid knee-jerk reactions to employee complaints. Instead, they must rigorously adhere to their complaint procedure for each and every complaint, and be sure to adequately document all steps taken in order to support their defense should litigation ensue. Finally, employers should consider taking preemptive action to shore up their defenses. The lawyers in Ice Miller LLP's Labor and Employment Group can assist employers with preparing or updating personnel policies and procedures that deal with employee complaints, train human resources and management employees on handling complaints and conducting investigations, advise employers regarding the investigation process, and help employers evaluate personnel decisions that impact employees who have previously lodged complaints.

Please contact Germaine Winnick Willett at germaine.willett@icemiller.com or (317) 236-5993 or any other member of our Labor and Employment group. Our partners assist employers faced with employment discrimination, retaliation, wage and hour, contract, and other employment-related litigation.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

July 20, 2011