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Performance Improvement Plan Used to Retaliate After Age Discrimination Complaint


A survey of employment retaliation cases will show that employers attempt to use many different methods to take action against employees who make complaints about illegal conduct. Not all employment actions are considered “adverse” employment actions that would rise to the level of retaliation. It typically depends on the specific situation. In a recent case out of New Jersey, the federal court dealt with an allegedly retaliatory performance improvement plan.

Ciecka v. The Cooper Health System

The lawsuit filed in federal court in New Jersey, a radiology technologist alleged that he was first placed on a performance improvement plan (PIP) and then terminated shortly after making a complaint about age discrimination. There was evidence presented that shows the technologist did not have any performance issues prior to his discrimination complaint and the court found that evidence sufficient to allow his claims to go to trial.

The Reason for Termination was Highly Questionable

In this case, the employee specifically alleged that two months after he made an informal complaint of age bias he was placed on a performance improvement plan. According to the plan, the employee was demonstrating a lack of competence in using certain operating room equipment. However, the evidence shows that his two prior performance evaluations rated him “exceeds expectations” and did not mention any issues with his competency in using that equipment. A few months after being placed on the PIP, he was terminated for failing to improve under the PIP.

Evidence Sufficient to Establish Retaliatory Motive

The employee’s age complaint was based on direct references made by his supervisor about his age. The technologist was 52-years-old. The court determined that a jury should be allowed to hear the case, as it would be reasonable for the jury to “read between the lines.” The employer in this case argued that several physicians and technologists state the technologist’s skills were deficient, including his competence in working with that specific equipment. However, the court found evidence that would lead to the reasonable inference that the employee was placed on a PIP and then fired as a form of retaliation for his age discrimination complaint.

Methods of Proving Retaliation

When it comes to performance evaluations in retaliation and discrimination cases, evidence of inconsistencies in performance history can be very helpful in proving a case. In the case of the technologist, not only was he overall rated as “exceeds expectations” in the two prior evaluations, but he also received scores of 4 out of 5 for his competency in operating room technology during those same evaluations. This evidence makes the discipline that he received highly suspect.

Additionally, the technologist offered proof that he was treated differently from other staff radiology technologists. Specifically, he showed that other technologists had the same deficiencies with the operating room equipment yet none of them were put on a PIP or otherwise disciplined.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880

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