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

Does subjecting an employee to heightened scrutiny evidence retaliation?

Yes, jumping on the first instance of poor performance or misconduct indicates pretext, especially where the employee has a record of strong performance prior to engaging in protected activity.  Examples include:

  • 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) (after many years of service and consistently good evaluations, the employee was fired after a single bad review).
  • Farrell v. Planters Lifesavers Co., 206 F.3d 271, 285 (3d Cir. 2000) (although the employer pointed to complaints about the employee’s performance, the decision to fire her for performance reasons came only three or four weeks after it praised her and asked her about her interest in a promotion).
  • Jackson v. University of Pittsburgh, 826 F.2d 230, 233-234 (3d Cir. 1987) (claim survived motion for summary judgment because the employee had never been criticized about his work, and he was terminated for alleged performance problems).
  • Gallo, 765 F. Supp. at 210, (employee had never been criticized until she announced she was pregnant, and shortly after that she was terminated).
  • Hugh v. Butler County Family YMCA, 418 F.3d 265, 267-69 (3d Cir. 2006) (employer’s reason could be deemed pretext where employee fired for poor performance despite no warnings and policy requiring supervisors to attempt to resolve problems through counseling first).
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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.