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Complaints – Make Them Properly and Effectively
Your Complaint could be the foundation of a potential lawsuit. In a lawsuit, you will be grilled about the exact things you said (and did not say) in your Complaint. Try to get it right, because you might only get one chance to say the right things and not too much of the wrong things.
All manner of employment cases are either made stronger or made weaker depending on whether you made a proper and effective Complaint.
Your Complaint might end up being the “star of the show” in a legal battle, since so many employment law doctrines rely on you having made a proper and effective Complaint.
HR reps are trained in how to get you to weaken your own potential case and help the employer build its defenses against your potential case. HR departments might actually try to help you fix your problem, but at the same time they are going to be helping their employer prepare its defense. Everything you do or say will be used against you later, if the need arises.
You may be locked into the statement in ways that could destroy or severely weaken your case. HR is trying to protect the company by getting you locked in before you’ve had legal advice. That is a common tactic taught to companies at seminars. HR will probably NOT give you a copy of the statement to take to your lawyer for review before you sign (but ask anyway – they’ll look bad later on if they refuse to give you the statement).
You will have to decide for yourself whether you want to get legal advice before you sign anything. A prudent HR department will let you have time to get legal advice. If you meet up with a high-pressure HR Rep trying to force you to sign a statement right now, and if your complaint is about something that gives you protection against retaliation, ask to take a break or ask to leave and come back tomorrow, and in the meantime call lawyers.
In a retaliation lawsuit, your Complaint is the star of the show, and lawyers will pick apart your words mercilessly. If the case doesn’t settle early, you will have to sit at a deposition and be grilled by the company lawyer about each sentence you uttered, each word you said. You will be asked about the things you did not say. I speak to people regularly who are surprised to find that their oral complaint to management is going to be dissected in such a manner. But it’s usually too late by the time they come and see me. They’re usually stuck with what they said. I will try to put the best face possible on the complaint, and the company will put the worst face possible on the complaint, and the legal system decides who is more right. Those of you who read this article on my website will make better complaints, I hope, and thereby have a somewhat easier time later on in court.
Try to make Complaints that are difficult to twist and misconstrue. Don’t give the other side too much ammo. In the legal game, expect lawyers to use arguments on a par with television and radio political commentators. The “complete truth” is not particularly relevant. Lawyers are not supposed to “lie,” but what is a lie? Lawyers use partial truths and may twist and misconstrue things, and take things out of context. Lawyers give the benefit of the doubt to their client’s version of events.
In a Retaliation case, the company wants to beat you by showing that you did not make a complaint about, say, Race Discrimination, and therefore, legally speaking, you could NOT have been retaliated against unlawfully, and so your retaliation case must be dismissed. To be retaliated against unlawfully, you must have engaged in “protected activity”, and not all workplace complaints rise to the level of protected activity.
The Company lawyer will take the words you actually used and did not use, as relayed to him by his client with a perhaps selective memory, and will argue that your words did not constitute a “complaint about race discrimination” that protects you against retaliation. The lawyer might agree that you “complained” about something, but the lawyer will not agree that your complaint meets the legal standards for being a proper and effective complaint about race discrimination entitling you to protection against retaliation. Here’s an example:
Let’s look at a simple hypothetical example to clarify the point. Joe is of minority race and has been at a company for two years. Assume that Joe feels discriminated against because of his race, in terms of promotional opportunities and job assignments. Generally, minorities are not being promoted as frequently as non-minorities. Joe wants to complain about how the races are being treated differently, but he doesn’t like the way minorities “play the race card” so he wants to be more discreet about it.
So Joe goes to his supervisor and talks about how hard it is for people to get ahead here, but doesn’t say the word “race.” Joe talks about how he knows he does a good job, and some co-workers don’t do as good a job, yet the co-workers get promoted and get better assignments. [Joe is referring to the white co-workers, but he doesn’t say that]. The supervisor speculates about how maybe the plant manager has it in for Joe, and they talk about some little incidents that happened over the years, and Joe agrees that those incidents might have caused the plant manager to dislike him. [Joe knows that the plant manager also might have reason to dislike the white co-workers who still get promotions and good assignments, but he doesn’t say that].
At no point does Joe clarify that his complaint is based on how the races are treated differently. Joe does not like the way minorities play the race card. He is not an Al Sharpton fan. So he avoids saying “race discrimination.” In addition, Joe is also a bit scared of being too aggressive in raising the race issue – he fears for his job security.
Within let’s say six months, Joe has been fired. The company does not like complainers. The company fears that Joe is setting them up for a discrimination lawsuit [Yes, the company interpreted Joe’s complaint as a “race discrimination” complaint, but they’ll never admit to it in court]. So Joe is really on the list now, if he wasn’t before. The supervisor begins closely scrutinizing Joe’s work, watching his time, writing him up whenever justifiable (even though in the past most little things were overlooked). Eventually, Joe is placed on formal discipline for poor performance or rule violations or attendance (minor tardies mostly). After another short time, Joe is terminated for violating the terms of his discipline by committing additional poor performance or rule violations or tardies.
Joe starts calling lawyers because he feels he has been “wrongfully terminated” because he got disciplined for things that others don’t get disciplined for. The lawyer questions Joe closely as to things that happened at work that might have caused the employer to want to be rid of Joe. The lawyer is looking for evidence that Joe engaged in “protected activity”. Joe might recall that he made the oral complaint to the supervisor six months ago. Joe describes the circumstances similar to how I stated them above.
Joe might have two potential cases, one for discrimination and one for retaliation. Both cases have their challenges and problems. But the lawyer is most interested in the potential retaliation case because for technical reasons retaliation cases tend to be easier to prove. Whether Joe can get a lawyer may depend in large part on whether his potential retaliation case stands up to scrutiny.
If a court concludes that Joe’s complaint was not a “discrimination” complaint, then Joe’s retaliation claim may get dismissed. If only Joe had been less coy, and a little clearer . . .
There are big holes in Joe’s case now. Those holes could cause the case to get thrown out of court on the little technicality that Joe didn’t say enough of the right stuff and he said too much of the wrong stuff in his complaint. So what could have been a worthwhile retaliation case (if Joe’s complaint had been better) is now a more marginal case that might or might not be worthwhile depending on many other facts and circumstances.
The errors listed above could turn out to be troublesome enough that some judges will decide that Joe did not gain protection against retaliation (because he did not engage in “protected activity”). If that happens, Joe’s case is in great danger of being thrown out of court, unless an alternative legal theory is available. Alternative theories may be available, but they will probably be harder to prove than a retaliation case.
In addition to the errors above, Joe missed an opportunity. Joe did not complain in writing. It’s best to make a written complaint if you say the right things. Joe missed an opportunity. Oral complaints allow the employer to dispute what Joe claims he said in his complaint, but Joe is still allowed to testify to his own recollection. But a written complaint would end any speculation about what Joe said.
Internal Complaints are within the company. External complaints are to outside agencies, such as to government agencies. Both types of complaints can gain you protection against Retaliation. Generally, the biggest problem arises from Internal complaints, because the courts scrutinize them more closely to see that the internal complaints meet certain legal standards. External complaints are not generally scrutinized as closely and might give you protection against retaliation even if deficient. But no matter whether your complaint is Internal or External, the actual words you say, and don’t say, will be used against you in court. So you need to say enough of the right stuff and not too much of the wrong stuff.
People often have a big legal problem regarding the nature and quality of the internal complaints they make to their employers. Internal complaints are quite important legally, because they could serve as a form of “protected activity” that gives you a wrongful termination case if the employer retaliates against you. See my retaliation and wrongful termination articles for more info on those topics. But people often do not recognize the importance of the internal complaints until they talk to lawyers after getting retaliated against.
By the time your lawyer reviews your circumstances, it might be too late to take any corrective measures to fix your faulty internal complaint. A faulty internal complaint could mean that you do not enjoy any protection against retaliation for making the complaint. It happens that some people lose their retaliation cases simply because they failed to utter some important words, or because they said a few words too many and undermined the legal value of their complaint.
Even if your complaint is external, such as to a government agency, the words you use when making the complaint could be critical. Everything you say and everything you don’t say could be critical. The seriousness of the thing complained about might still turn out to be an issue, although generally speaking you enjoy more protection against retaliation if you file a complaint with a government agency even if the complaint is factually somewhat weak.
If you sue over a Discrimination claim, your EEOC and MCHR charge form will be closely scrutinized by the employer and the court. They will look to see if you said enough of the right stuff to support the lawsuit you are filing. Often, the employer argues that you can’t sue for some things because your EEOC or MCHR charge was not detailed enough to cover the subject matter of your lawsuit.
Courts will closely scrutinize your internal-company complaints in these ways:
In an External complaint, you often gain protection against Retaliation even if you don’t say all of the right stuff or even if you say too much of the wrong stuff. That isn’t always true, but as a general rule the anti-retaliation protections are stronger for External complaints.
But just as with Internal complaints, the actual things you say and don’t say will come back to haunt you later in court in one way or another. The things you actually say will be used to determine, for example, whether the things you complained about appear to be, for example, race discrimination. This is relevant to whether you have a good race discrimination lawsuit, and is relevant to other technical legal issues in lawsuits. In addition, the things you don’t say will come back to haunt you, if you should have said those things in your complaint but failed to do so. Your opponent may try to accuse you of making things up if you say things later on that should probably have been said in your original complaint (if they really happened).
Be careful with complaints. They are necessary, but they need to be done with forethought and care, looking forward to the day when you might have to sue over the thing you are complaining about, or might have to sue over retaliation for making the complaint. Consider getting legal advice before you make your initial complaint if you have time.
Article written by | Tim Willoughby
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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