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Our employment lawyers are often faced with the employment discrimination and retaliation equivalent of the age old chicken and the egg debate. Specifically, a fired employee says that he or she was fired after raising complaints about unlawful race, gender, national origin or other types of unlawful discrimination. On the other hand, the employer responds that the complaints of discrimination arose only after the employee knew of performance complaints or the ax coming down on his or her employment. Maybe one is lying. Maybe they both think that they are each think that they are telling the truth. But, this game of chick and egg soon evolves into simply a game of chicken, betting how the jury will view the evidence.

Now, the employer is always paying its employment defense attorneys a hefty hourly rate to play chick with the risk of paying a large some at the end. On the other hand, the employee’s employment discrimination attorneys don’t get paid unless there is a recovery, and the likely worst case scenario is that the employee wastes some time and walks away with nothing. From my perspective, this looks like the employer always looses, it is just a matter of degree while the employee can either win or draw. The only one who always wins is the employment defense attorneys, who get paid no matter what the result.

So let’s take the example of Hallmon v. Advance Auto Parts, Inc. Bernard Hallmon was an African-American man who was employed as a general store manager by Advance Auto Parts, Inc. After several years, relocated from a Georgia store to one in Denver, Colorado. Shortly thereafter,

Kevin Fucile became the district manager. At that time, Hallmon was the only African-American store manager in Mr. Fucile’s district.

Employer side facts: According to Advance, in a meeting in February 2010, between Fucile, a human resources manager and the regional vice president, the three discussed Hallmon’s poor performance and the options of relocating him to a smaller store in Fucile’s district or putting on Hallmon on a performance improvement plan. Advance claimed that in March or April 2010, these options were offered Hallmon, who declined to move.

Employee side facts: In responding to an Advance employee survey on April 25, 2010, Hallmon expressed concerns over the lack of racial equality in the workplace, and particularly regarding Fucile. Hallmon alleged that Fucile, deduced that the response was submitted by Hallmon as the only African American manager, and then proceeded to mock him and his complaint publicly with other store managers. On May 1, 2010, Hallmon met with HR to discuss his concerns about Fucile, but the parties disputed whether the racial issues were raised at that point. Later on that day, Fucile and HR delivered the PIP during, which Advance alleges was part of the February plan of action. When Hallmon undisputedly raised race complaints at this point, the PIP was put on hold.

Employer side facts: On August 18, 2010 Debra Gomez, a part-time Advance employee, complained to Fucile about Hallmon’s management skills, which she previously had addressed to Hallmon himself. Advance asserts that Hallmon deduced the identity of the complainant and then reduced Gomez’s hours at Advance for the following weeks in violation of store policy. Next, Fucile issued a written reprimand for Hallmon’s tardiness at managers’ meetings on June 24 and August 10, 2010.

Employee side facts: On August 20, 2010, Hallmon filed a complaint with HR about Fucile’s alleged racial discrimination against him.

Employer side facts: After an investigation, on September 13, 2010, Fucile issued Hallmon a written reprimand for violating the company’s “Open Door Policy” by reducing Gomez’s hours.

Employee side facts: On September 13, 2010, Hallmon complained to HR that they resolved his racial complaints by finding no wrongdoing. Later that day, Advance fired Hallmon for the same Gomez incident that had landed him the write up.

So, which way does it go? That is the gamble of putting the case in the hands of jury.

Well, before we get to the results, the parties went through discovery, including multiple depositions, filed dispositive motions, tried the case to a jury and then went through an appeal. I’d guess that the employer spent in the range of $100,000 to $150,000 defending the racial discrimination and retaliation case. So, Advance’s best hope was to spend over a $100,000 to its attorneys and nothing to Hallmon. On the other hand, Hallmon turned the case over to attorneys, had limited exposure, and his mostly likely worst scenario was to walk away with nothing. He didn’t. The jury returned a verdict for $647,563.15.

Clearly, Advance should have settled without choosing to cross this road.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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