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Accused of Racial Discrimination After Firing an At-Will Employee

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  • 11-08-2015, 01:33 PM
    chyvan
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post
    We also spent about $50k in just recruiting the guy, and will like spend another $50k to find a replacement.

    This is the problem I'm having with the story.

    Quote:

    Quoting throwaway64759
    View Post
    We are in at-will state so we thought it was fine.

    You were willing to piss away $100K for what? A personality conflict. Even if it wasn't motivated by discrimination, where does any company get away throwing away that kind of money because they don't like someone? Sure, you can do it, but come on, that's a lot of money to waste just to prove a point.
  • 11-08-2015, 01:38 PM
    throwaway64759
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting cbg
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    We do have one piece of documentation and that is the mid-year evaluation. The mid-year evaluation contains documentation of performance lapses. However, the mid-year evaluation was drafted by the higher up who didn't like him (not his immediate supervisor who did the annual performance review) with feedback from his immediate supervisor and another supervisor. t may be interpreted as subjective as there's no numerical scoring on a scale as with our annual performance review. There's also no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement. He was also the only one in the department to receive a mid-year evaluation.

    So, one and only one employee received a mid-year eval; that mid-year eval is the only documentation of any performance issues, and it was drafted by the person who wanted him fired? It's not dated, it doesn't follow the format of your usual evals, it's not signed, and from the sounds of things no one even knew about it?

    You seriously can't see how that is going to look if those facts are ever put in front of a judge or jury?

    "In order to establish a prima facie case against his or her employer, a terminated person alleging discrimination must be able to show that:

    (1) he or she is a member of a protected class (i.e. age, gender, race, etc.);
    (2) he or she was performing the job at a level that met his or her employer’s legitimate expectations;
    (3) he or she was nevertheless fired; and
    (4) the employer sought someone else to perform his or her functions after he or she was terminated."

    Would the mid-year evaluation with documented performance issues suffice in disproving (2)?
  • 11-08-2015, 01:46 PM
    jk
    Re: Termination of Protected Class Employee in At-Will State
    It was asked either directly or implied;

    is this the only employee that has any performance issues? It makes it quite suspicious that this is the only employee that has ever deserved a mid year evaluation. If so congratulations on having the very best staff ever.

    Otherwise it it is suspicious that the black guy (presumption on my part) is the only one to ever receive a mid year evaluation.


    the mid year evaluation might make it even worse if no others have ever been given one. It looks like he was being singied out for some reason and since you have dealt with performance issues with all the white guy's without a mid year evaluation, guess what it looks like?
  • 11-08-2015, 01:48 PM
    cbg
    Re: Termination of Protected Class Employee in At-Will State
    Okay, since you seem to need it spelled out in simple words:

    Would the mid-year evaluation with documented performance issues suffice in disproving (2)?

    No. The mid-year evaluation with documented performance issues, the way you have described it, would not even come close to suffice in disproving (2).

    Not. Even. Close.

    Is that now quite clear to you?
  • 11-08-2015, 01:54 PM
    throwaway64759
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting jk
    View Post
    It was asked either directly or implied;

    is this the only employee that has any performance issues? It makes it quite suspicious that this is the only employee that has ever deserved a mid year evaluation. If so congratulations on having the very best staff ever.

    Otherwise it it is suspicious that the black guy (presumption on my part) is the only one to ever receive a mid year evaluation.


    the mid year evaluation might make it even worse if no others have ever been given one. It looks like he was being singied out for some reason and since you have dealt with performance issues with all the white guy's without a mid year evaluation, guess what it looks like?

    OK, but how is this any different from a written warning given to a poorly performing employee to create a paper trail for subsequent dismissal?

    - - - Updated - - -

    Quote:

    Quoting cbg
    View Post
    Okay, since you seem to need it spelled out in simple words:

    Would the mid-year evaluation with documented performance issues suffice in disproving (2)?

    No. The mid-year evaluation with documented performance issues, the way you have described it, would not even come close to suffice in disproving (2).

    Not. Even. Close.

    Is that now quite clear to you?

    "The fact that the employee may have met expectations in the past is irrelevant; she must show that she was meeting expectations at the time of her termination."

    The mid-year evaluation indicates the employee was not meeting expectations. Could you please elaborate as to why (2) is not disproved then?
  • 11-08-2015, 02:05 PM
    jk
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    OK, but how is this any different from a written warning given to a poorly performing employee to create a paper trail for subsequent dismissal?
    its not but since this is the only guy that it has ever happened to, either there was a paradigm shift in disciplinary actions where he was the first guy to receive one (where if there have been none since either you have the perfect work force or the claim becomes obviously false) or it shows this guy was picked on for some reason other than his performance. Is something other than performance documented? If not, it sure looks a lot like discrimination.
  • 11-08-2015, 02:06 PM
    chyvan
    Re: Termination of Protected Class Employee in At-Will State
    The mid-year evaluation only proves that one was written. It doesn't prove that it was actually true, or maybe even given to the former employee. If this makes it's way to court, the fact finder is the one that will make that decision, and you may not like it.
  • 11-08-2015, 02:08 PM
    cbg
    Re: Termination of Protected Class Employee in At-Will State
    I already did. More than once. If you're incapable of understanding the difference between a legitimate performance appraisal and the travesty that you've described, I don't know how to help you.
  • 11-08-2015, 02:17 PM
    llworking
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post
    OK, but how is this any different from a written warning given to a poorly performing employee to create a paper trail for subsequent dismissal?

    - - - Updated - - -



    "The fact that the employee may have met expectations in the past is irrelevant; she must show that she was meeting expectations at the time of her termination."

    The mid-year evaluation indicates the employee was not meeting expectations. Could you please elaborate as to why (2) is not disproved then?

    Look, you are asking the same questions over and over again and getting the same answers.

    Your company has a serious problem. Your company needs an attorney on board to handle the problem. The situation as you describe it is very damning for your company. You allowed a new higher up with an ego problem to cause this problem for your company.

    See an attorney first thing tomorrow morning. Make sure that you explain the problem the same way that you explained it here, so that you do not accidentally leave something out.
  • 11-08-2015, 06:31 PM
    Taxing Matters
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post
    Would the mid-year evaluation with documented performance issues suffice in disproving (2)[/b]?

    It would if that was the same evaluation process ALL employees were subjected to. But if the minority employee is the only one to be given that evaluation process and that then leads to his/her dismissal then you still have a serious illegal discrimination problem. An employer cannot treat employees differently because of race. Subjecting employees of one race to a different evaluation process than employees of other races is still illegal discrimination. That reinforces the employee’s claim of discrimination, not help the company defend against it.

    Hopefully you can now begin to see why companies that are serious about avoiding illegal discrimination claims have a real disciplinary process in place that applies to all employees equally and that allows for solid documentation of real performance issues. When you do things by making it up as you go along you open yourself up to illegal discrimination claims.
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