A Capehart Scatchard Blog

My Employee Complained… Now What?

By on December 1, 2015 in Uncategorized with 0 Comments

After an employee files a complaint within the workplace, many employers are concerned that they are no longer allowed to take any disciplinary action against that employee in the future.  This is due to the employer’s fear that the employee will file a retaliation claim.  This fear is not unfounded, but there are ways to avoid, or at least defend against, such retaliation claims. A recent case from the Third Circuit, Fischer v. G4S Secure Solutions USA, Inc., 614 Fed. Appx. (3d Cir. 2015), demonstrates the importance of responding to employee complaints in an appropriate fashion in order to avoid liability in a retaliation suit.


Bryan Fischer (“Fischer”) was hired by G4S Secure Solutions USA, Inc. (“G4S”) in 2007 as a security guard.  Fischer was assigned to a nuclear power facility run by PSEG Nuclear, LLC (“PSEG”)1.  Between April 2008 and February 2010, Fischer reported safety concerns in the workplace to management. Many of Fischer’s safety concerns involved complaints about the behavior of Fischer’s co-workers, which caused Fischer’s co-workers to become hostile towards him.  Co-workers showed him text messages that read, “Fischer is going to get his” and “Fischer’s no good, why [do] you talk to him?”  Fischer also noticed that he was being ignored by certain co-workers. As a result, Fischer made a report to G4S’ Employee Concerns Program about poor treatment by his co-workers and G4S hired an attorney to conduct an investigation. During the course of the investigation, Fischer was placed on administrative leave with pay and the investigator/attorney met with Fischer several times to gather information. As the investigation came to a close in May 2010, the investigator advised that he believed that the “work environment was being corrected.”

In September 2010, Fischer had multiple telephone conferences and in person meetings with management about whether, and how, he could return to work. During these conversations, management reassured Fischer that they were taking his concerns seriously and that they would take disciplinary action against anyone who acted inappropriately towards him. Management advised Fischer that they were glad that he reported the conduct and that he would have a “direct line” to management if anyone gave him a “hard time” when he returned to work.

Nevertheless, because Fischer advised that he still felt unsafe returning to work, management offered to take a number of steps, including providing an escort, in order to make Fischer feel safe.  Management even gave Fischer the option of transferring to a different worksite2. Despite these responses, Fischer refused to return to work, rejected the transfer, and demanded a severance package of $800,000. G4S rejected the demand and gave Fischer a deadline to either return to work or accept the transfer.  Fischer refused to return to work, rejected the transfer, and as a result, was terminated for failing to report to work.

The Court Case:

Fischer filed suit in Federal Court against G4S claiming that G4s violated the retaliation provisions of the New Jersey Conscientious Employee Protection Act (“CEPA”). Fischer alleged that he was terminated for speaking out, or threatening to speak out, about safety concerns and unfair practices in the workplace.  After initial legal motions and an appeal to the Third Circuit Court of Appeals, Fischer’s claims were rejected because, among other reasons, there was no causal connection between Fischer’s complaints and Fischer’s termination. The evidence showed that G4S was responsive to Fischer’s complaints and that he was commended for bringing safety concerns to management’s attention.  Furthermore, G4S worked with Fischer and offered him options to allow him to safely return to the workplace.  In summary, Since G4S responded to Fischer’s complaints appropriately and went above and beyond in providing support for Fischer, the Court found that no rational juror could conclude that Fischer was terminated in retaliation for making safety complaints.

What does this case mean to employers and HR professionals?

Employers and HR professionals should make sure, after consulting with their labor and employment counsel, to respond promptly when an employee complains about wrongdoing in the workplace.  The more evidence an employer can show that appropriate action (e.g., investigation and appropriate solutions and/or discipline of wrongdoers) has taken place, the less likely it is that an employee may prevail regarding a retaliation claim if he/she is disciplined for conduct unrelated to the initial complaints.

  1. PSEG contracts with G4S for security service.
  2. Management discussed firing the offending employees, but Fisher thought that doing so would only lead to additional hostility towards him in the workplace.

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