Managing the Chronic Complainer, Quirky Question # 117

Quirky Question # 117:

We have an employee who has become a “chronic” complainer.  She initially complained to her manager that her annual bonus was incorrectly calculated and that she believed the alleged error was because of her sex and/or age.  The manager referred the complaint to Human Resources, which thoroughly reviewed the bonus calculations for that department and concluded no error or discrimination occurred.  The employee’s manager and a Human Resources representative met with her to explain how her bonus had been calculated. The employee was not happy that her bonus would not be changed, but she could not explain why she believed the company’s bonus calculation was wrong.

It has been six months since that meeting, and things have really gotten out of hand.  The employee complains that everything and anything is sex or age discrimination.  She has begun to voice her complaints at team meetings, which is distracting and is starting to have a negative effect on team morale.  She also sends long e-mails to her manager and Human Resources, listing a litany of issues and demanding an immediate response.  We have done our best to give this employee the benefit of the doubt – Human Resources has met with her and her manager on numerous occasions, but, so far, there has been no merit to her complaints.  Needless to say, she is wasting everyone’s time and it has gotten to the point that she seems more focused on complaining than getting her job done.  Before this, she was a good performer.  At what point can we say “enough is enough”?  Can we discipline this employee for making too many baseless and distracting complaints?

Dorsey’s Analysis:

Whenever an employee has complained about discrimination, harassment, retaliation, or other illegal or improper conduct, an employer should proceed cautiously before taking any disciplinary or other adverse actions against the employee.

Various statutes – including state and federal anti-discrimination statutes – prohibit retaliation against employees who have engaged in protected activity by, among other things, making a complaint.  That said, courts have frequently held that an employee’s “protected activity” may be so disruptive, unreasonable, or inappropriate that it does not warrant protection.  For example, courts have held that the following behaviors are not protected activity:

•      Copying and/or accessing confidential documents or information to support an administrative discrimination charge.  Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (employee did not engage in protected activity when he copied confidential documents to support his discrimination claim); Comiskey v. Auto. Indus. Action Group, 40 F.Supp.2d 877, 899 (E. D. Mich. 1999) (employer had legitimate reason to fire employee who accessed confidential computer files to gather information in support of his wage discrimination claim).

•     Yelling at a manager for failing to provide a reasonable accommodation.  Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir. 1999) (court upheld deaf plaintiff’s termination for insubordination after he yelled at a company owner for refusing to buy a TDD that would allow him to make business and personal calls).

•      Neglecting job duties in order to pursue complaint.  See EEOC v Shoney’s, Inc., 536 F. Supp. 875 (N. D. Ala. 1982) (employer had legitimate reason to fire employee who neglected his job for three days in order to pursue an EEOC complaint).

•      “Harassing” coworkers to join or support discrimination complaint.  Jackson v. St. Joseph State Hospital, 840 F.2d 1387, 1390 (8th Cir. 1988) (harassing coworker to sign affidavit in support of EEOC complaint was “bizarre,” “objectionable,” and legitimate reason for termination).

•      Refusing to perform job duties.  Hazel v. U.S. Postmaster General, 7 F.3d 1, 4 (1st Cir. 1993) (plaintiff believed he was given undesirable job assignment in retaliation for investigating sexual harassment complaints and refused to report to his new assignment; the court upheld his discharge for insubordination, noting, “the right to oppose discrimination is not a right to refuse to work on account of discrimination”).

A few courts have also grappled with the issue of the “chronic complainer” and have held, under certain circumstances, that making too many complaints itself can be grounds for termination or other adverse employment actions.  Two cases are highlighted below where courts granted summary judgment to employers that took adverse actions against an employee for making too many complaints.

In the first case, Webb v. Xcel Energy, Court File No. EM 04-013868, slip op. (Minn. St. Ct. Jan. 18, 2006), Dorsey won summary judgment on a Minnesota Human Rights Act retaliation claim where the plaintiff was terminated for several reasons, including that she repeatedly made baseless complaints against a coworker.

For reasons no one ever really understood, the plaintiff – a woman – had it out for a contract employee, another woman, who worked on the same floor, but in another department.  The plaintiff filed an internal sexual harassment complaint against the contract employee.  The company investigated but found no merit to her allegations.  The company reported the results of its investigation to the plaintiff, but she wasn’t satisfied.  (Frankly, it seemed that nothing short of getting the other woman fired would have satisfied this employee.)

She began to inundate Human Resources with “complaints” about the contract employee, but the “complaints” were simply sightings of the contract employee in and around the building where both of them worked – for example, that she had seen the contract employee in the break room, in the restroom, when she was getting out of the elevator, etc.  Human Resources met several times with the employee to explain that she was likely to cross paths with the contract employee during the work day.  Even so, the company offered several measures to limit her interactions with the contract employee.  The plaintiff refused all of them.

Things came to a head, when, after months of complaints, the plaintiff called up the contract employee’s manager and yelled at the manager because she had seen the contract employee in the corridor, talking to another employee.  The company terminated the plaintiff’s employment and, in a letter detailing the reasons for her termination, included (among other reasons) the fact that she persisted in making baseless complaints against the contract employee.

The trial court granted defendant’s motion for summary judgment, finding that the company terminated the plaintiff’s employment for legitimate, non-retaliatory reasons.  The Court of Appeals affirmed the trial court’s grant of summary judgment.  Webb v. Xcel Energy, 2007 Minn. App. Unpub. 453 (Minn. Ct. App. May 15, 2007).

In the second case, Rollins v. State of Florida Dep’t of Law Enforcement, 868 F.2d 397 (11th Cir. 1989), the Plaintiff alleged she was denied promotions because of her race.  At summary judgment, the employer presented, as the sole non-discriminatory reason for denying the plaintiff’s requests for promotion that she had “disrupted the workforce by repeatedly making spurious claims of racially disparate treatment in an extremely hostile and antagonistic manner.”  On appeal, the plaintiff argued that this reason was retaliatory.

The 11th Circuit upheld the trial court’s order granting summary judgment in the employer’s favor, holding that “to qualify for the protection of [Title VII] the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable.”  The court based its finding that the plaintiff had not raised her complaints in a reasonable manner on the following facts:

•      She refused to follow the avenues prescribed for bringing complaints – among other things, she would write allegations of discrimination on her weekly time sheets.

•      The Court also found that the “sheer number and frequency of Rollins’ complaints, most of which were plainly spurious, was overwhelming.”

•      Her supervisor testified that “he spent more time addressing Rollins’ repeated complaints of racially discriminatory practices than those raised by all of his other employees combined.”

•      He also testified that her “constant complaining and unsupported allegations had a damaging effect on morale within his unit.”

•      The court provided one example of a complaint it found to be especially spurious:  some employees organized an outside of work “beer bash” to watch an “important” Florida State University football game; the plaintiff “vehemently protested” the social event, arguing that equal treatment was not accorded Florida A&M University, a predominantly black university.

•      The Court last found that the plaintiff raised her complaints in an “antagonistic and insubordinate” manner.  On one occasion, she called her supervisor a “fool” and told him “to look up the definition” because it was “accurate.”

It is important to note what both the Webb and Rollins cases have in common.  First, both companies originally gave the plaintiff the benefit of the doubt, conducting thorough investigations of their complaints before reaching the conclusion that the complaints were baseless.  Second, the employees made complaints in inappropriate, disrespectful, or disruptive ways.

In your situation, it appears the time is right to have a very frank conversation with the employee, explaining that you have repeatedly listened to and addressed her concerns but that she has not provided any information suggesting that she has been discriminated against.  Share your concerns that a lot of time has been spent by her manager and Human Resources responding to her concerns and that it appears she has lost focus on her job.  While you should not forbid her from raising concerns, encourage her to think carefully before doing so.  You should request that she raise any concerns privately with her manager or Human Resources, explaining that team meetings are not the appropriate forum to raise such issues.  If the employee persists in her behavior, disciplinary action, up to and including termination, may be appropriate to address the problem.

Dorsey & Whitney

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