‘Bad Attitude’ = Risky Reason for Firing.
Megan Milo appears to have had a lot of challenges in her life and probably was not the easiest employee to manage at Cybercore Technologies and Northrop Grumman Corporation in Maryland. She announced shortly after being hired at the federal contractor that she was undergoing a gender transition and would be living as a female and should be addressed with “she” and “her” pronouns. Cybercore held a meeting with her coworkers to announce the transition, her preferred pronouns, and that she “should be treated with dignity and respect.”
But that didn’t happen, according to Milo. She diaried 35 different instances of unfair treatment, including criticism by managers and coworkers about her dresses, short skirts and high heels, misgendering references, and unequal treatment in comparison to other females.
One day, Milo and a male co-worker got into a “loud and contentious disagreement” about a work matter, and she later complained that she was counseled about the incident but not the co-worker.
Other co-workers began to complain that they felt they were “walking on eggshells” around her because she was offended by any slight or mistaken reference to her gender and complaining frequently.
Cybercore and the federal government manager placed Milo on a 30-day probationary period and performance improvement plan (PIP), instructing her to “refrain from complaining in public forums,” treat all customers and coworkers with respect, and “extend the same understanding and latitude to her coworkers that she expects for herself.”
Milo ceased her complaints during the PIP, but then two months later started to again complain about a supervisor “misgendering” her. Shortly thereafter, the primary contractor on the project requested that she be removed from the project and Cybercore terminated her employment “because of her ‘bad attitude.’”
The court denied a motion to dismiss her retaliation claims, noting that the “bad attitude” rationale “could suggest that she was terminated in retaliation for her continued complaints to management and to her co-workers about discrimination.”
Perhaps this is a “no duh” decision, but we frequently hear from clients who want to discipline or terminate employees who are chronic complainers, don’t support “the team,” and have a “bad attitude” – often based on situations like the one in Milo’s case, where the complaints include both protected conduct (such as objections to unlawful discrimination) and unprotected conduct (such as complaints about low pay, a tough manager, or a desire for newer equipment).The problem with terminating an employee due to unprotected complaints or a “bad attitude” is that if any of the complaints involved protected conduct, then the employer is giving the employee a viable retaliation claim, because it is next to impossible to conclusively dissect whether the employer’s actions were based on the protected or unprotected conduct.
Is there an easy fix in these situations? Not really, but as usual, the key to staying out of trouble is to focus on business needs and getting the work done in a satisfactory manner. And if the employee has raised concerns as to unlawful conduct, get good legal advice before proceeding with discipline of any kind.