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As our employment discrimination attorneys often see happen, an employer decides that it wants to retaliate against an employee or discriminate against an employee for some illegal, unlawful or other nefarious purpose. But, the employer realizes that such conduct gives the company a lot of exposure. The employer decides that it would be a smart move to build a case against an employee – fill the employee’s file with write-up and bad reviews, or put the employee on an performance improvement plan, counseling form, employee probationary period, or any similarly named program or write up.

This is great in theory as long as no one looks to close. Indeed, when this happens, many employment defense attorneys will point to this disciplinary records and say, “You’ve got no case,” or even go so far as to suggest that “your case is frivolous.” Our response is always the same, the disciplinary actions are pretext. Not only that, but if the jury agrees with the employee that the disciplinary actions were taken with an intent to build a false case to fire, demote, or take other adverse action against an employee, they will almost always agree that the employers conduct was willful. At that point, a finding of willful conduct under the Age Discrimination in Employment Act (“ADEA”), which means that the employer knew or showed reckless disregard for whether its conduct was unlawful, that employee may recover liquidated damages equal to a doubling of his damage award, attorneys fees, and other damages.

There are a lot of ways to show pretext – that the employer was falsely building a file to justify unlawful actions. Employment Attorneys can obtain the records of similarly situated employees to show that those outside the protected class were not reaching the same level of performance, but were not written up, disciplined or put on a performance improvement plan. Our employment lawyers have shown that the employee was just given a bonus, raise, promotion, or other incentive base reward before reporting the illegal or unlawful conduct that lead to the retaliation. Likewise, our employment discrimination attorneys can point to the clean disciplinary history of the employee until the employer decides that it is time to retaliate or discriminate. As would be expected, depositions of liars often reveal cracks and inconsistencies in the pretextual story. My favorite, however, is when an impatient employer places the employee on a month long performance improvement plan (or at least what is typically that long at the particular employer) and then cans the employee 10 days or two weeks later, showing that the PIP was a façade all along. And, there are always more ways to prove such pretext.

Take for example, the case of David Nelson, who was a 55 year old district manager for Radio Shack, making about $40,000 per year. Within four months of RadioShack assigning a new, 43-year-old regional manager, Nelson received his first to performance improvement plans in his 25 years with the company. Then, within five days of Nelson complaining to HR of age discrimination – and with time still remaining on the performance improvement plan – Radio Shack terminated Nelson. Armed with Nelson’s clean history, the close temporal connection to the HR complaint, and termination prior to the expiration of the improvement plan, the jury awarded $187,000 in back wages and held that Radio Shack acted willful. Based on the willful finding, the federal court judge ruled that Nelson was entitled to liquidated damages of $187,706, front pay damages of $199,470, and an additional $101,657 to offset the increased tax burden. In total, the judgment is for $674,938. So now how smart does the employer feel?

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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The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.