The Witness Files: The Questionable Complainant

Every employee complaint requires an investigation

Posted by Bill Nolan in Bullying, Code of Conduct, Discrimination, Employment Law, Harassment, Human Resources on October 10th, 2013

Thus far in these posts, all of the scenarios I have written about have involved inappropriate workplace conduct, some more egregious than others but all things we would likely agree an employer needs to prevent in the workplace. Such scenarios are seemingly a timeless feature of the workplace. No matter how much employers train, educate, manage, and apply carrots and sticks to eliminate inappropriate workplace behavior, decades of experience make it clear that inappropriate conduct is a fact of life, requiring employers’ attention in order to minimize it and resulting liability.

The Complainant

But we also know that not every complaint is valid, which brings us to Dubious Donna. Donna comes to you with a complaint about Maurice. Donna and Maurice are both customer service representatives (CSRs). They work in a large area of cubicles with a team of a dozen other CSRs. Donna is a 10-month employee. Her job performance consistently but barely meets the company’s productivity standards. She uses her paid time off soon after she accrues it, and seems to do so by calling off sick on Monday mornings.

The Accused

Maurice is a five-year employee. His productivity is above average. He is content where he is and does not seem interested in pushing to the next level as a candidate for a management position, but he is a rock-solid employee who has literally never presented a management issue. He is married with a young child.

The Supervisor

FREE Investigation Report Template

Prepare thorough, consistent investigation reports with our free report template.

Download Template
Sarah supervises the CSR team. Sarah is 45 years old. She has been with the company nine years. She started as a CSR herself, and a few years ago was promoted. She is a strong supervisor, and is very hands-on working with her team and by all appearances is as well-liked by them as a supervisor can be.

The Complaint

Given these profiles, and despite your ingrained hyper-vigilance on such issues, your first reaction is to be skeptical when Donna tells you that Maurice has acted inappropriately towards her and it is making her uncomfortable in the office. First, she says, he very obviously “looks her up and down” and leers at her when she walks by him. He also makes comments about her appearance, not highly explicit but he uses words like “hot” and other descriptions that go beyond a friendly, “You look nice today.” (It is not the purpose of this post to discuss whether a male should even say that to a female co-worker.) She says she does not want to get him fired, she just wants it to stop.

Donna is somewhat unclear on details when you ask some initial follow up questions. For example, she cannot be very specific about actual statements made by Maurice. In addition to what you already know about Maurice, this causes you to further question the truth of Donna’s report. She also can identify no employees she thinks might be able to verify the reports, even though, when asked, she says that Maurice’s comments are made in a normal tone of voice in what is a very open and busy work area.

Don’t Judge

You thank Donna for making you aware of her concerns, and let her know you will be back with her shortly. As she leaves, you are fairly confident Maurice has not actually engaged in the alleged behavior.

However, it is important that you follow your usual process and not base your handling of the complaint on your initial judgments. If you are experienced in investigating workplace complaints and highly sensitized to inappropriate behavior, your initial reaction might very well be accurate. However, the worst position for the company (and you) to be in is for a future plaintiff’s lawyer to be able to characterize you as having a default assumption that a “good guy” like Maurice would not do this. There are plenty of examples of “good guys” who, to our surprise, have engaged in inappropriate behavior.

Whatever you do, do not memorialize your initial reactions in an e-mail, which would be subject to discovery and invite such a mischaracterization of your approach to these issues.

Follow the Process

Work through your process as with any other complaint. Not all complaints are equal and the scope of your investigation will vary depending on the severity of the allegations and the number of people who may be implicated.

As Donna has presented this to you this far, there are no identified witnesses. You will certainly need to talk to Donna and Maurice, presumably their supervisor, and perhaps a co-worker or two who is in a position to observe their interactions and is likely to give you an objective report.

So this may be a relatively small investigation in scope, but put your blinders on and work through these steps, focusing on the specifics of this situation. If a judge or jury or EEOC investigator picks up your file on the matter a year from now, it should reflect that Donna’s and Maurice’s productivity and Donna’s attendance were not relevant to your conclusions.

Just in Case

As with any complaint, if you cannot verify Donna’s allegations but cannot prove they were made in bad faith, you will not take any action against Maurice, but you may take other steps to ensure an appropriate environment “just in case”.

  1. Heighten the supervisor’s observations of Donna’s and Maurice’s interactions and document that you have done so.
  2. Schedule some training for the whole group.
  3. Consider reconfiguring physical working arrangements to heighten the visibility of interactions between the two employees.

No Retaliation

Most importantly, even if Donna’s complaint is not supported by the evidence, she cannot be retaliated against for making the complaint. (Viewing this most cynically, perhaps Donna knows this and that fact contributed, consciously or subconsciously, to her making the complaint.) This can be a challenge, because Donna has stirred the pot, and Maurice and/or Sarah, may be frustrated with her. Other employees who hear about this (which they will, regardless of whatever confidentiality restrictions the main players agree to) may distance themselves from Donna.

You will need to work with Sarah to manage the potential retaliation issue. Particularly since Donna is a marginal employee, you should also work with Sarah to manage Donna’s performance, because if it gets to a point where Sarah wants to take corrective action against Donna for her marginal performance and/or her attendance, as a practical matter the bar is now set higher. Sarah’s “case” will need to be stronger because action against Donna now carries a potential retaliation risk that will only gradually diminish over time, and Sarah needs to be able to make this case – but without over-managing Donna, which itself would appear retaliatory. Again, remember that, if you are not providing legal advice to Sarah, your communications with her are subject to discovery. The above strategic considerations openly memorialized in a non-privileged e-mail can hurt your case.

Document Follow-Up

Finally on the retaliation front, Donna must be advised (in writing) to let you know immediately if she has any concerns of retaliation. Given what you think is a questionable complaint already, it would be natural not to encourage more concerns, but better to be able to manage concerns if she has them – or to have documented your openness to them if she does not.

In some ways Donna’s complaint might present more management challenges than if Maurice had engaged in the alleged conduct. Thus, while it is certainly good news if it appears there has not been inappropriate conduct, the situation will require careful attention on an ongoing basis.


Bill Nolan
Bill Nolan

Managing Partner, Ohio office of Barnes & Thornburg LLP

Bill Nolan opened Barnes & Thornburg's Ohio office in April 2009, seeking to bring a unique energy, geographic platform, and business model to the Ohio legal market. He strives to bring attentiveness and clarity to employment, contract, and other disputes, and on helping clients build teams, policies and processes to minimize the frequency and severity of disputes.

Visit Website