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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can A Performance Improvement Plan Be Evidence Of Retaliation For A Discrimination Complaint?

age discrimination board sign illustration

Having dedicated their practice to representing employees who have been retaliated against for complaining about discrimination in the workplace, our Citrus County, Florida wrongful discharge attorneys have learned that employers often use performance improvement plans and negative performance evaluations as weapons to punish employees who complain about discrimination.  When doing so, employers will then use the performance improvement plan or negative performance evaluation to justify the employee’s eventual termination.  The decision by the U.S. District Court for New Jersey in Ciecka v. The Cooper Health System, No. 15-4075 (D. N.J. Feb. 14, 2017) illustrates that a suspicious or undeserved performance improvement plan can be evidence of an employer’s desire to retaliate against and eventually fire an employee for complaining about discrimination.

Employee Claims He Was “Set Up To Fail”

In that case, Michael Ciecka (Ciecka) brought a retaliation lawsuit against his former employer, The Cooper Health System (Cooper Health), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII).  Ciecka claimed that Cooper Health violated Title VII by firing him in retaliation for having complained about age discrimination.

Ciecka was employed as a radiology technologist by Cooper Health.  Ciecka was fifty-two years old when he was fired on December 11, 2014.  The crux of Ciecka’s case was that the circumstances of his employment changed drastically after he complained about age discrimination in June 2014.  That month, Ciecka told Human Resources that his immediate supervisor, a man named LeBender, made references to his age.  Ciecka also reported that he believed he was in LeBender’s “cross-hairs’ and his job was “in jeopardy.  When interviewed by Human Resources about Ciecka’s age discrimination complaint, LeBender admitted to commenting on Ciecka’s age.

In his two most recent performance evaluations before he complained about age discrimination, Ciecka’s performance was rated “exceed expectations” in both 2013 and 2014.  Despite his positive performance evaluations, Ciecka was put on a performance improvement plan a few weeks after he complained about age discrimination.  Ciecka claimed that the performance improvement plan included “unrealistic goals” and imposed higher performance expectations on him that on other technologists.  For these reasons, Ciecka believed that he was “set up to fail” because of his discrimination complaint.  On December 11, 2014, Ciecka was fired for failing to improve his performance while under the performance improvement plan.

A Jury Could “Read Between The Lines”

Cooper Health filed a motion with the trial court seeking dismissal of Ciecka’s retaliation claim.  In doing so, Cooper Health argued that Ciecka’s termination was justified because his performance did not improve as required under the performance improvement plan.  Because his performance did not improve, Cooper Health maintained, Ciecka could not establish that he was fired in retaliation for complaining about age discrimination.  The trial court denied Cooper Health’s motion for dismissal and ruled that Ciecka had presented sufficient evidence of retaliation to proceed to a jury trial.

In denying Cooper Health’s motion for dismissal, the trial court found that Ciecka’s evidence would enable a “jury to infer that retaliation caused [him] to be placed on a [performance improvement plan] and terminated.”  In support of this conclusion, the trial court pointed out that Ciecka’s “employment evaluations were positive in the time leading up to the [performance improvement plan] before he made his discrimination complaint.”  The trial court also noted that the alleged performance problems identified in the performance improvement plan were “never identified in a performance evaluation.”  The trial court further observed that many technologists, most of whom were younger than Ciecka, “had the same deficiencies” identified in Ciecka’s performance improvement plan, yet they were not put on a performance improvement plan or otherwise disciplined.  From this evidence, the trial court determined that a “jury could chose  to read between the lines and link the few weeks between [Ciecka’s] discrimination complaint and [the performance improvement plan] with the inconsistencies and contradictions in Cooper Health’s changing assessment of [Ciecka’s] job performance to conclude that Cooper Health unlawfully retaliated against him for making a complaint of age discrimination.”

Free Consultation With Inverness Retaliation Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing retaliation victims.  If you have been retaliated against for complaining about discrimination in the workplace or have questions about being subjected to a performance improvement plan after complaining about discrimination in the workplace, please contact our office for a free consultation with our Citrus County, Florida retaliation attorneys.  Our employment and labor law attorneys take retaliation cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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