Juries like simple cases. If an employee complains about discrimination anddoes nothing, that’s one thing.
But if suddenly the employee is criticized, placed on a performance improvement plan (PIP) and then fired, jurors may see retaliation.
The best way for an employer to change their minds: Offering compelling evidence that the employee was a poor employee before he complained.
Recent case: Tony worked for Verizon Wireless and got excellent reviews, meeting all his goals. Then he lodged a discrimination complaint with HR and his supervisor. Neither did anything.
However, Tony suddenly found himself placed on a PIP, even though others with lower performance scores continued to work as usual.
Despite meeting all the goals under the PIP, Tony was terminated for.
He sued, alleging retaliation for his ignored complaint. A jury agreed with him and awarded him damages, including $200,000 for emotional distress.
Verizon asked the judge to overturn the award, claiming it had the right to set performance standards and that Tony simply hadn’t met them.
The court said it wouldn’t second-guess the jury’s conclusions, but did reduce the emotional damages award to $125,000 because Tony hadn’t introduced any medical evidence to support his claim of emotional distress. (Campbell v. Cellco Partnership, No. 10-Civ-9168, SD NY, 2012)
Final note: Verizon made two big mistakes in this case. First, it ignored Tony’s complaint. Always investigate and follow up on complaints, even if you think there’s no basis for them. Second, no one in HR reviewed the decision to discipline Tony. Insist on seeing either documentation of poor performance in the past or substantial new work problems. For juries, appearances matter. If someone is doing a good job and suddenly—after complaining—can’t do anything right, a jury will suspect retaliation.
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