Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

By Bryan A. Chapman, Esquire

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct. 

If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should anticipate retaliation and not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced civil rights attorney as soon as possible.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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Heightened Scrutiny: Employers look for a legitimate reason to hide retaliation.

By Bryan A. Chapman, Esquire

Retaliation occurs when an employee complains about workplace discrimination and is then targeted for harsher treatment by their employer.  Harsher treatment includes, but are not limited to, refusal to hire, demotion, refusal to promote, harassment, negative performance evaluations, reprimands, termination or a change in hours.  The most frequent form of retaliation is disciplinary action or termination.

An employee may complain that retaliation occurred when the employer “papered” their personnel file with write-ups and negative evaluations after they complained about workplace discrimination.  In its defense, the employer may argue that retaliation did not occur because the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct.

Even if the write-ups and negative evaluations were based on the employee’s poor job performance or misconduct, retaliation can still occur if the derogatory documentation was a result of “heightened scrutiny”.  Under heightened scrutiny, the employer observes the employee more closely than it otherwise would while waiting for opportunities to discipline the employee. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)

In a case of heightened scrutiny, an employer acts like a spider patiently waiting for unsuspecting prey to become entangled in its web.

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Bryan A. Chapman, Esquire

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When Is An Employer’s Reason For Firing You Actually A Pretext For Age Discrimination?

Jul 2, 2019

Source: Forbes Magazine

Eric Bachman Contributor Wealth Management

I am a litigator helping professionals navigate employment challenges

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In employment litigation, some of the most important evidence is centered on the question of whether the employer had a legitimate reason to terminate your employment or whether the reason was simply a pretext for unlawful discrimination.  A federal appellate court recently tackled this issue and fleshed out how an employee can prove that the employer’s purported reasons were just a mask for illegal behavior.

In Westmoreland v. TWC Administration LLC, 924 F.3d 718 (4th Cir. 2019), the United States Court of Appeals for the Fourth Circuit found that the employee had shown that the employer’s reason for firing her was a pretext for discrimination.  In this case, Westmoreland alleged that Time Warner Cable (TWC) fired her because of her age in violation of the Age Discrimination in Employment Act (ADEA). After a three-day trial, the jury found TWC liable for age discrimination and awarded Westmoreland $334,500 in damages. TWC appealed the verdict to the Fourth Circuit, which affirmed the district court’s decision for the plaintiff. 

LEGAL STANDARDS FOR AGE DISCRIMINATION AND PRETEXT CLAIMS

The ADEA, 29 U.S.C. §§ 621-34, prohibits an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a). To win, a plaintiff “must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-178 (2009). Circumstantial evidence, as opposed to direct evidence of discrimination (which is less frequently available to plaintiffs), is analyzed under a three-part test created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  

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The McDonnell Douglas framework for an ADEA claim for termination due to age discrimination is as follows:

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STEP 1/prima facie case  (burden on plaintiff)

  • They belong to a protected class (older than 40 years old)
  • They were qualified for the job and performing in accordance with the expectations of their employer
  • Employer terminated their employment
  • The employer replaced plaintiff with an individual who was comparably qualified to the plaintiff, but substantially younger.  Note: certain courts hold that the plaintiff can also meet this factor by showing the employer did not treat age neutrally when making the decision to terminate.

STEP 2 (burden on defendant)

  • Employer must produce evidence that its actions were the result of legitimate and non-discriminatory reasons

STEP 3 (burden on plaintiff)

  • Employee must prove that the non-discriminatory reason(s) offered by the employer in Step 2 were not true reasons, but were a pretext for discrimination based on age. 

In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-7 (2000), the Supreme Court held that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Also, Reeves allows the trier of fact to consider the evidence used to establish a prima facie case of discrimination (first prong of McDonnell Douglas) when they are deciding the final prong of McDonnell Douglas framework.  Notably, the Supreme Court later held that “[t]he reason for treating circumstantial and direct evidence alike is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957)).

ANALYSIS OF WESTMORELAND’S PRETEXT CLAIMS

No dispute existed between the parties regarding the first two steps of the McDonnell Douglas test; thus, the case centered on the pretext analysis. TWC argued that Westmoreland had failed to present sufficient evidence to prove that TWC’s proffered reason for firing Westmoreland was pretext for discrimination, thus falling short on the pretext prong. 

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TWC’s only proffered reason for firing Westmoreland was “trust and integrity issues” that arose after TWC found out that Westmoreland had instructed a subordinate to change the date on a form.  TWC claimed that this violated company policy, which stated that “[f]alse statements… may result in termination of employment.”  

In addition to the evidence she presented to prove Step 1/her prima facie case, Westmoreland also relied upon the following evidence to show that TWC’s explanation was a pretext for age discrimination:

  •  TWC fired her after 30 years of consistently satisfactory work;
  • Westmoreland’s supervisor who informed Westmoreland of her termination and signed her termination papers made a condescending and age-related remark to Westmoreland immediately after the firing;
  • all of the decision-makers at TWC were aware that Westmoreland was of advanced age; and 
  • After TWC informed Westmoreland of her possible violation of company policy (but before TWC officials fired her), a TWC official told her that the offense was minor and would amount to nothing more than a “slap on the wrist.” 

The court also cited the fact that Westmoreland’s otherwise positive 30-year employment record shows that this was an isolated incident for which lesser sanctions were available. 

The Fourth Circuit found that, consistent with the Reeves standard, Westmoreland had sufficient evidence of pretext.  For example, Westmoreland showed that she was fired when she was 61 years old, and her replacement was 37 years old. Likewise, she showed that TWC’s alleged concerns about her violation of company policy were actually not the reason for her firing because, at first, TWC told Westmoreland that the infraction was not that serious.

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Each case will be reviewed based on its own facts and merits, so no “one size fits all” approach can apply when analyzing discrimination and pretext claims.  But the Fourth Circuit’s decision helps employers and employees to better understand where the line may be drawn between a legitimate reason versus a pretext for unlawful discrimination.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Proving Discrimination

Source: Workplace Fairness

 

Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.

There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.

  1. What is discrimination?
  2. What are the different types of discrimination claims that I could bring?
  3. What evidence is needed to prove my employer intentionally discriminated against me?
  4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?
  5. What if my employer denies discriminating against me?
  6. What can I do if my employer’s reason is a cover-up for discriminating against me?
  7. What evidence do I need if my employer’s seemingly neutral policy, rule or practice neutral practice had a discriminatory effect?
  8. What are the remedies if I win my discrimination case?


1. What is discrimination?

There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.

2. What are the different types of discrimination claims that I could bring?

If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.

Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.

Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.

3. What evidence is needed to prove my employer intentionally discriminated against me?

There are two types of evidence that can be used to prove discrimination: direct and circumstantial.

Direct Evidence
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.

For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.

4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:

  • Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
  • Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
  • Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
  • Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?

If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:

  • Were you treated differently than a similarly situated person who is not in your protected class?
  • Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
  • Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
  • Does your employer have a history of showing bias toward persons in your protected class?
  • Are there noticeably few employees of your protected class at your workplace?
  • Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
  • Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
  • Are there statistics that show favoritism towards or bias against any group?
  • Did your employer violate well-established company policy in the way it treated you?
  • Did your employer retain less qualified, non-protected employees in the same job?

If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

5. What if my employer denies discriminating against me?

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

6. What can I do if my employer’s reason is a cover-up for discriminating against me?

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  • The stated reason is factually untrue
  • The stated reason is insufficient to have actually motivated your discharge
  • The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
  • Your protected status is more likely to have motivated your employer than the stated reason
  • Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.

7. What evidence do I need if my employer’s seemingly neutral policy, rule or neutral practice had a discriminatory effect?

Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

8. What are the remedies if I win my discrimination case?

  • Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay.Front Pay is lost future earnings resulting from the discrimination.
  • Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  • Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
  • Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.

 

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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Employees may prevail against employers who use false accusations to hide severe retaliatory behavior.

Victims of workplace discrimination and/or harassment are encouraged to file a complaint with their employer or a government entity, such as, the Equal Employment Opportunity Commission (EEOC).  Filing a complaint is generally a prerequisite to pursuing a claim in state or federal courts.

However, filing a discrimination complaint can trigger a retaliatory response from the employer.  In general, retaliation is an impulsive reaction by an employer to a discrimination/harassment complaint filed by an employee.  The employer’s reaction to the employee’s complaint results in harsher treatment, which can include termination.  Like discrimination, retaliation is illegal.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports…”); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (The evidence here showed that the administration intended to retaliate against Gowski and Zachariah because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them.)

While retaliation is generally impulsive, some employers are more calculating in the way they retaliation against employees. These employers use pretext (false justification) to hide their true retaliatory motive.

Like a spider and its web, these employers wait for the employee to make a minor mistake and then they use the employee’s minor mistake to falsely justify a severe retaliatory response, such as, a termination.  Hamilton v. General Electric Co., 556 F.3d 428, 435 (6th Cir. 2009) (“…Hamilton alleges that the bosses heightened their scrutiny of him after he filed his EEOC complaint. See Jones v. Potter, 488 F.3d 397, 408 (6th Cir. 2007) (noting that an employer cannot conceal an unlawful discharge by closely observing an employee and waiting for an ostensibly legal basis for discharge to emerge).”); EEOC v. Boeing Co., 577 F. 3d 1044, 1050-3 (9th Cir. 2009) (“…after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.[1] These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002.”)

In court, most employers use pretext as a standard defense against an employee’s claim of retaliation.  An employee with a record of satisfactory job performance will suddenly be accused, by their employer, of poor job performance or serious misconduct.  Often, this defense ploy lacks credibility on its face.

Courts recognize that employers use pretext to hide their true retaliatory motive.  With this in mind, employees may prevail in court by proving that their employer’s justification is false and retaliatory.  An employee’s record of satisfactory job performance or good conduct often speaks for itself.  (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).  Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010); Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)

 

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

 

Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct.  If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com