Image of Does subjecting an employee to heightened scrutiny evidence retaliation?

Does subjecting an employee to heightened scrutiny evidence retaliation?


Subjecting an employee to heightened scrutiny evidences retaliation

Where an employer jumps on an employee’s first instance of misconduct or poor performance and subjects the employee to heightened scrutiny, the employer’s reliance on that alleged change in performance can be deemed a pretext for retaliation.

For example, in Colgan v. Fisher Scientific Co., an age-discrimination case, the Third Circuit held that Jack Colgan established pretext where Fisher Scientific terminated his employment shortly after Mr. Colgan declined an offer of early retirement, based on a single performance evaluation that was inconsistent with his thirty-year tenure at the company. Throughout his entire career as a machine operator with Fisher Scientific, Mr. Colgan regularly and consistently received positive performance evaluations. When he declined the company’s request that he retire, he was assigned substantial additional responsibilities and then the company gave him a surprise, premature evaluation, the worst he had received during his tenure at the company. The Third Circuit held that, in the context of Mr. Colgan’s long and well-rated service at Fisher Scientific, the single negative review was “compelling circumstantial evidence” that the company’s reliance on Mr. Colgan’s supposed performance issues was pretextual.  Colgan v. Fisher Scientific Co., 935 F.2d 1407 (3d Cir. 1991) (en banc), cert denied 502 U.S. 941, 112 S. Ct. 379 (1991).

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.