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).
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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