Published on September 15th, 2009 by Alan L Sklover
“Nobody is prefect.”
– Julie Ingram
ACTUAL “CASE HISTORY”: Elena, 59, had been a Curator at a midwestern Art Museum for 9 years. For Elena, it was the culmination of her career in art, and was what she had always dreamed of doing. She felt “at home” at her job, and never once considered leaving for any reason. Simply put, she loved her job. That lasted until March, 2008, when the new Museum Director arrived.
At first, Elena thought the new Museum Director was simply too busy to speak with her. Then she noticed that the new Museum Director did not invite her to important meetings. In the few situations the two spoke to each other, the new Museum Director seemed to use as few words as possible. Elena knew of nothing she had done to deserve these responses. Elena was certain others were noticing it, too, and was getting very worried for her job. She started to feel “at the end of her rope.” After reading our blog article entitled, “12 Ideas for Dealing with the ‘Boss from Hell,'” she called our office for a telephone consultation.
In our telephone consultation, Elena told me the new Museum Director had acted entirely “improperly.” When I asked Elena exactly what she meant by “improperly,” she said, with seeming amazement, “Everyone knows what ‘improper’ means.”
Later in our consultation Elena told me the new Museum Director had acted toward her in a “discriminatory” way. When I asked what she meant by “discriminatory,” Elena seemed puzzled, and retorted “You know . . he discriminated against me.”
At one point Elena told me the new Museum Director behaved in a “hostile” manner toward her, and had “abused” her. I asked her to describe the hostility, and abuse, to which she responded “It should be obvious.”
Elena was certain the new Museum Director behaved in a clearly “illegal” way. I didn’t want to, but I had to, ask her what she meant by “illegal,” to which she blurted out, in obvious frustration, “You’re a lawyer; you should know.”
For a moment Elena was quiet, and then said, “Well, surely you must agree the new Museum Director ‘harassed’ me.” I was afraid to ask her what she meant by “harassment,” so I just said, “Do you mean sexual harassment?” I think Elena was starting not to like me. She nearly screamed “Why don’t you believe me!!”
I stopped the consultation, and as calmly as I could, I explained to Elena what I have had to explain to many of our clients: “Conclusions don’t help you; unless accompanied by specific examples, they actually hurt you. Being specific gives you credibility, and makes your Complaint effective. Provide all of the facts and let the other person come to his or her own conclusion.”
“Describe to me what you heard, saw, felt, smelled, tasted, experienced, as if you are telling me a story. Don’t tell me the meaning of the story. Your conclusion is suspect to me; my own conclusion is real to me.”
Only then did Elena get the message, and begin to tell me specifically that the new Museum Director was 36 years old, had only hired people under 35 (specific actions, related to age), had described Elena publicly as “an old fool from the old school” (specific, disparaging words related to age),” and had raised his voice, and yelled just inches from her face, on February 19, 2009, at 10:00 am, in front of Bob, Sharon and David, “What’s the matter . . . your hearing going on you, too?” (again, specific, disparaging words related to age, and specific dates, times and witnesses.)
That is when the real progress began: when Elena started giving me specific words, dates, names of witnesses, actions, and available emails, documents and materials that would corroborate her specific details. With these specifics in mind, we were able to help her tell her story to the Board of Trustees, and the Museum’s legal counsel, that was clear, strong, detailed, convincing, and compelling. Not only was the new Museum Director placed on official Warning, but Elena was now being treated with the respect she had always deserved. In fact, she felt more respected by her colleagues than ever before. And, she admitted, she felt a certain self-respect that had been missing for months.
LESSON TO LEARN: Let’s pretend you are on a jury, and a man is on trial for murder. You have to decide if the witnesses are convincing enough to put the accused into prison for life, a very heavy responsibility.
Witness A: “I saw a man stab another man with a knife. The man with the knife was somewhere between 5 feet and 6 feet tall, with a medium to heavy build. He had light-colored skin. He had a large face, and wore dark clothing.”
Sure enough, the accused man fit that general description. Would you send the man to prison on that basis?
Witness B: “I saw a man stab another man with a knife. The man with the knife was 5 feet 2 inches or 5 feet 3 inches. I am certain because that is my height, and the man stood just three feet from me. I noticed he had a small X-shaped scar on his neck, just below his left earlobe. He also had a dark brown wart on his right index finger, about one quarter inch from his finger tip. His eyes were hazel, and slightly cross-eyed. He had a gap between his two middle teeth of about 1/8 of an inch, and one gold cap on his bottom right incisor tooth. Oh, yes, he also had a tattoo of two smiling kangaroos on his left forearm; I saw it as he raised the knife. I am sorry, but I don’t remember the color of his clothing.”
Sure enough, the accused fits that precise description, in every single detail. Do you convict? Much more likely, because the level of detail is so convincing. “Who,” you say to yourself, “could make up all of those details? No one.”
These days, far too often employees who feel aggrieved immediately use the following words, which by themselves – without specifics to support them – are meaningless: “discrimination, harassment, hostility, fraudulent, defamatory, illegal, improper and immoral.”
These words seem to make people feel powerful, as they seem to carry a big punch, to strike hard at a perceived enemy. In truth, they are weak, ineffective and just hot air, unless accompanied and supported by specific details, descriptions, words, actions, dates, times, names of witnesses, and supporting documents.
The lesson is this: in any complaint, grievance, protest or allegation you make at work, be specific, be descriptive, provide details, and support your specifics with documents, witnesses and materials that would corroborate your “story.” Don’t communicate in generalities, or be conclusory. Specificity leads to credibility, and credibility leads to effectiveness.
WHAT YOU CAN DO: If you are filing a complaint, grievance, protest or allegation at work, bear in mind these 11 helpful pointers:
1. Don’t File a Complaint or Grievance Unless the Facts Support One: First and foremost, don’t make mountains out of molehills. If you were treated impolitely and insulted, but you were not grossly and repeatedly treated with hostility that affected your well-being, maybe you ought to re-consider filing a complaint. If you lose credibility in this instance, you may not have any credibility in any instance, as in the story of “the boy who cried wolf.” There is no fine line that separates a justified complaint from an unjustified one, but it’s always a good idea to wait until you’ve cooled down before acting, and this circumstance is no different. Making yourself be specific in your Complaint will help you decide whether this complaint is truly critical, or perhaps truly unnecessary.
2. Be Attentive to Required Process: File with the Proper Person, on the Requried Form, Within the Required Deadline, etc.: In these matters, too, specificity matters. Most companies provide employees with a certain person, or office, who should be contacted if a problem arises or complaint needs to be filed. Many companies provide certain required forms, and some even have deadlines. Be attentive to these. Unless it is expressly prohibited, don’t be afraid to supplement required processes by, for example, sending copies by email to the CEO and/or Board of Directors. Just don’t ignore required channels and steps.
3. Provide What You Heard, Saw and Experienced, as if You had a Camera and Microphone: Think “specific” not “general.” Think “particular” not “conclusory.” Think “picture,” not “concept.” If you were repeatedly touched by a colleague, was it on the forearm or the buttocks; it surely makes a difference. Did you voice objection? How? To who? How many times? On what days and at what times? What words did you use? Were there any witnesses? If so, who were they? If you said, “Stop that, and never do that again!,” was it loud enough possibly to have been heard by others in different rooms?
4. Give Dates, Times, Locations and other “Orienting” Circumstances: To your very best ability, provide your reader or listener with dates, times, and locations and other “contextual” information. These permit the reader or listener to begin to develop his or her own mental picture of the events in question. Don’t be afraid to say, “On Monday or Tuesday, I am not certain,” or “During late August or early September.” Don’t be concerned if you don’t remember if it was either in your office or your boss’s office; that is not a critical difference. In fact, being so frank as to admit you are not sure of the exact date is, in itself, convincing of your honesty and sincerity.
5. Provide Names of Witnesses, If Any: To your best ability, provide names of people who may corroborate your version of events. While first-hand witnesses to statements and events are surely best, someone who knows only that a meeting took place, but knows nothing of what happened in the meeting, is better than nothing. You should bear in mind that others may not want to “get involved.” At the same time, making your Complaint or Grievance may just be the brave act many others are waiting – perhaps praying – for.
6. Deliver Documents, Emails and Other Materials that Support Your Complaint: There are several different types of “evidence.” One is testimonial, that is, what people say. Another type is documentary, that is, emails, letters, reports and other things written on “paper.” If you have written materials of any kind that support your Complaint, deliver copies of them along with your Complaint. A helpful reminder: Always keep originals in your own possession.
7. You Can Share “Beliefs,” So Long As You Label Them As Such: You may “believe” certain things to be true, but yet not have any evidence of it. For example, you may have told only your boss that you were scheduled for an operation and the name of the surgeon, and asked her pointedly to keep it private and confidential. However, the next day everyone in the office knew all of the details. While you have no direct evidence that your boss blabbered the private information, it sure seems that way. You can’t honestly say you are sure about that, but you can honestly say that you have “good reason to believe” your boss was the blabbermouth. By being careful – and limited – in your use of words, you gain credibility. You also protect yourself from being found to have told a falsehood if it turns out that someone else – like your doctor’s secretary – was the actual blabbermouth. As lawyers, we are taught to use the phrase “upon information and belief” in these circumstances for that very reason.
8. Bear in Mind that Exaggeration and Embellishment Reduce Your Credibility: Sometimes clients report things to us that, in the end, turn out to be exaggerations or embellishments of the truth. While it is easy to understand the urge to exaggerate, if you give into that urge, and are caught doing so, you cast great doubt on everything else you say. Trial lawyers will tell the jury “If she is willing to make one exaggeration, she is willing to make two, and if she is willing to make two exaggerations, can you trust anything she says?!?” It’s like being “half-pregnant.” Either you are honest, or you are not; at least that is what people will think.
9. Ask a Friend: “Is this Clear, Consistent and Compelling?”: Before transmitting your Complaint or Grievance, consider having a loved one or close friend review it for you. Is it clear? Is it consistent? Is it compelling? Ask for frank feedback, criticisms and suggestions. Few people do this, but so many could benefit from it.
10. Make an Email Record of Your Complaint or Grievance, and Supporting Material: No matter how you make your Complaint or Grievance, you need to send a second copy of it and all of your supporting materials by email. Email is “forever,” is date- and time-stamped, and provides proof of transmittal and receipt. Likewise, if you have any meeting with HR or General Counsel’s office, soon after send them an email summarizing what you said, what they said, what steps are planned, who will be taking them, and when you should be hearing back from them. That is, make sure that everything that happens and is said is “forever” in an email. Otherwise, if the only record of what happened is in their notes, you may well be amazed at how much is “forgotten,” misplaced, mischaracterized and denied. Don’t let that happen to you.
11. We Offer a Model Complaint / Grievance Letter on our Blog’s “Private Library”: For those who feel intimidated by the task of composing a written Complaint or Grievance, we offer a “model” Complaint or Grievance for a minimal price in the “Private Library” section of our blogsite. While it does not contain your specific details and information, it does provide a helpful structure and example of what we consider to be an effective Complaint.
When making a Complaint or Grievance, don’t just come out with words like “discriminatory, hostile, harassing, improper, fraudulent, improper, illegal, extortionate,” or the many other words of conclusion. Instead, support these conclusions with graphic, picturesque, compelling, descriptive, image-laden words. Give facts, provide witnesses, transmit supportive documentation. If you are putting your credibility on the line, do so with precision, passion and purpose. This is not the time for understatement or embellishment, but the factual truth, the whole factual truth, and nothing but the factual truth, so help us all.
If you would like to obtain a “model” memo to help you report Discrimination, Harassment, or Hostility [click here].
Our SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. If and when you need to file a Complaint or Grievance at work, you should do it well, carefully, and effectively. That takes focusing on specifics. These eleven ideas are yours, to help you in that process. Now it’s up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what our SkloverWorkingWisdom™ is all about.
A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
© 2009 Alan L. Sklover. All rights reserved. Commercial use prohibited.