Employment & Labor Insider

True confession: When I was a little future lawyer, I was sometimes a pain. (So, Robin, you’re saying your personality hasn't changed in all these years?)

When I was being especially “high maintenance,” my dad would tell me, “Robin, you’re more trouble than you’re worth.”

Have you ever had an employee who was more trouble than they’re worth? I bet you have.

I’m talking about an employee who is exhausting. She (or he) complains about everything, and usually in single-spaced run-on emails with multiple paragraphs. (Or, worse, no paragraphs at all – just a page-long, single-spaced, barely-coherent screed.)

You try to do something nice for them, and they complain that you didn’t do something else. You do the something else, and they complain about that.

They appreciate nothing. And take 1,000 words to tell you so.

At some point, you may decide that they're more trouble than they're worth and want to part company. But you may not be sure whether you can legally do that. 

All is not lost

It may be possible. A decision last week from a federal court in Georgia – involving a faculty member who was denied tenure – should provide some encouragement. (The decision, from Trump appointee Judge Tilman Self, is 114 pages long, but it is a surprisingly entertaining read.)

The plaintiff in our case was a tenure-track faculty member in the business school of a university. She had received a positive interim review a few years before her tenure decision came up, and everything seemed to be great. Not long before the tenure decision was to be made, there was some turnover among her bosses. But the new bosses (her Dean and Associate Dean) were women she already knew and was personal friends with. When the tenure committee made its recommendation, the recommendation was that she get tenure.

A shoo-in, right?

Wrong.

She ended up being denied tenure – despite the committee recommendation – after both of her deans (yes, her buddies) recommended against it and provided supporting evidence, largely consisting of argumentative, negative, lengthy email exchanges that she had had with these two deans and others.

I promise not to go on about this for 114 pages. Let's just say that she appears to have been a three-fer: More trouble than she was worth, high maintenance, and a pain in the you-know-what.

As a result of the evidence, the university President – who made the ultimate tenure decision – denied tenure.

The prof sued for sex discrimination under Title VII*, and the court granted the university’s motion for summary judgment.

*She also asserted claims under Georgia state law, but the court ruled that she would have to pursue those claims in state court.

When you just can't take it any more

Here, in significantly less than 114 pages, are the key points for employers from this case. They may come in handy next time you are struggling with what to do about a high-maintenance employee:

• Being a pain in the you-know-what can be a legitimate non-discriminatory reason for adverse employment action, whether it’s denial of tenure, denial of a promotion, or even possibly termination.
• To the extent that the emails or other communications could be interpreted in more than one way and the employee claims they were misinterpreted, what will matter to the court is how you, the employer, interpreted them. And whether you, the employer, were reasonable in interpreting them as being wordy, rambling, argumentative, exhausting, excruciating, and intolerable beyond all bounds of normal human decency. Even if you did misinterpret (always an easy thing to do in an email), as long your belief was reasonable and the exchange genuinely troubled you or others, then you may be all right.
• The same applies to your performance or other criteria. You, as the employer, get to decide which standards apply to promotion and other employment decisions, and to enforce those standards. The courts will not second-guess. (CAVEAT: If your standard is something like “Only men are eligible for tenure,” the courts will second-guess. Also, you have to be consistent in applying your standards.)
• If the employee claims that there are “similarly situated” employees who were treated better, take that with a grain of salt. In this case, the plaintiff noted that two male faculty members were also high maintenance but got tenure anyway. But according to the court, Male #1 allegedly became persnickety only after he got tenure. (He's no fool.) Male #2 allegedly had one outburst at a faculty meeting several years before his tenure decision was made. By contrast, the plaintiff’s objectionable communications preceded and came very close to the time of her tenure decision.
• If you believe that an employee is being a pain in the you-know-what, be sure to preserve any documentation that supports your belief. If it’s not coming from emails or texts, at least write up your conversations for the file. That isn’t as strong as evidence from the employee’s own hand, but it is evidence. And the fact that you thought it was serious enough to document is evidence that this was a real problem for you, the employer.
• If you have an employee who is communicating inappropriately, start the coaching/progressive discipline process. And document each session you have with the employee. (The university in this case did not do that, and ideally they should have even though they won anyway.)
• Don't get hung up on the fact that your predecessor adored your high-maintenance employee. The courts understand that you are a different boss and that you have the right to set your own standards.
• Notwithstanding this rosy blog post, do consult with counsel before you take action against an employee for being more trouble than he or she is worth. Chronic complainers often manage to make some complaints that are at least arguably legally protected. (In the case of our plaintiff, one of her surviving state law claims relates to complaints she had made about allegedly discriminatory pay.) If you take action against an employee based on a "legally protected" gripe, then even the biggest pain in the you-know-what could have a valid retaliation claim.

But don’t think it’s necessarily a lost cause when an employee gets on your last nerve. Taking action that you can defend is a challenge, but it’s not impossible.

Because of the Easter weekend, this is my “Friday” blog post. I wish you all a very happy Easter, a happy conclusion to Passover, and/or a great weekend, as the case may be!