A performance improvement plan (or “PIP”) is not discriminatory by itself. But scores of employees who have bought “Work Laws Exposed” and utilized their free phone consultation with me have described feeling like their boss was trying to “get back at them” by setting astronomically high goals at the employees next appraisal or in a PIP.
- One female employee told me how she used FMLA leave to take her autistic son to a series of therapy sessions; soon after returning to work her boss placed her on a PIP and assigned her completely unattainable goals that she had to meet “or face termination”;
- One older male employee told me how he noticed that his boss, a first time supervisor, was driving out all the employees who were also older and more experienced; when the employee told HR that the supervisor was targeting older workers and pushing them out of their jobs, HR told the supervisor, and the supervisor immediately place the employee on a PIP that included goals no one could possibly satisfy.
Although these are but a couple of examples of how a bully boss can create a hostile work environment by setting unfair goals for employees, the truth is that I hear examples of this happening each and every week. The bad news angle of this: bosses probably won’t stop doing this anytime soon. The good news angle? Now there is something more you can do to fight back against your bully boss.
Why Does This Happen So Much?
What your boss is doing is trying to get back at you, punish you, or drive you out of your job by “focusing on performance.” That’s what HR and defense lawyers (which I am one, if you recall) tell bosses to do. “Don’t call employees names or taunt them, because that discriminatory. Instead, focus on performance.” Of course what lawyers and HR people mean is to focus on the employee’s actual performance — to hold that person accountable to the same standards that every other employee is held to.
But is that what actually happens? You know the answer if you are reading this. The boss doesn’t merely hold the employee to the same standards as others. The boss is an angry bully who is determined to get rid of the employee, so the boss creates crazy “work plans” and PIP’s that Superman could not satisfy. And here’s the key — this is the part you need to identify in your own workplace — the “extra” part of a work plan or PIP, the part that goes beyond what other employees have to achieve and is solely imposed on you so that you will be “set up to fail”, THAT is what makes it discriminatory. And by discriminatory, I mean illegal.
You can complaint to the EEOC or your state’s Dept of Labor and they will punish your company and your boss. Does that sound too good to be true? Well, here is an example of just such an employee who recently took his boss and company to court for this very thing.
Recent Real Life Case
In Willnerd v. First National Nebraska,(http://www.ca8.uscourts.gov/opndir/09/03/073316P.pdf) Jeff Willnerd sued his bank-employer for violating the Americans with Disabilities Act (“ADA”). What the bank really did, however, was run Jeff out of his job by telling him that he had to meet crazy-high loan production goals or be fired. Other employees with Jeff’s same job did not have to meet these same goals. No one at that branch of the bank had ever been assigned such high production goals, nor has any employee since. Since Jeff was being treated so differently than he other employees, he needed to ask himself, how am I different? Why single me out and not the others?
The bank claimed that Jeff was terminated as part of an economically motivated reduction in force — and that Jeff specifically was selected because of his poor performance.
Jeff believed that reason he was singled out was because of his voice.
Jeff Willnerd began working at the bank in Beatrice, Nebraska in 1982. He ultimately worked there for 20 years, but in 1999 his voice started to cut out on him. His condition “baffled his doctors” and “it took considerable exertion for [him] to speak.” By 2001 his mysterious medical condition had reduced his voice to a mere whisper. Even then, however, his numerical production numbers and performance reviews were comparable to other employees at the branch.
Despite his solid performance one of the corporate supervisors, Christopher Kisicki, expressed concerns about Jeff’s voice to other employees, asked customers about their perception of Jeff’s voice, and was present when Jeff’s co-workers made fun of his voice.
In 2001 bank headquarters in Omaha began consolidating branch functions at the corporate office. In February of 2002 Kisicki and another corporate supervisor, Ulferts, met with employees at Jeff’s Beatrice branch about cross-selling services and increasing sales. Later Kisicki and Ulferts testified that they were mainly concerned with the under performance of two personal bankers at the time.
Despite that, only Jeff received a production quota after the meeting. Jeff characterized the quota “as an impossible to meet goal established to guarantee his failure.” Kisicki and Ulferts told Jeff to double his production volume from $2 million to $4 million, or he would be fired. The court noted that this goal required Jeff to “single handily outperform the entire branch’s mortgage-lending voume at a level the branch ultimately failed to achieve at any time prior of following his termination.”
In May of 2003 Ulferts met with Jeff and told him that he had 90 days to improve his “overall proactive sales effort” or he would be fired. No other employee at the Beatrice branch of the bank received such an ultimatum. Although Jeff’s sales production did increase, he did not meet his production quota. Ulferts described Jeff’s improvement as “a good effort.” Nevertheless, in September of 2003 Ulferts terminated Jeff from the bank where he had worked for 20 years.
Jeff Willnerd Sues First National Bank
Jeff filed suit in court, alleging that the bank fired him from his job in violation of the Americans with Disabilities Act. Specifically, he said he was discriminated against when the Ulferts and Kisicki assigned him unattainable quotas, then terminated him for failing to meet the un–meetable quotas.
The bank tried to argue that it was solely concerned with Jeff’s performance numbers, that Jeff had been warned that he would be fired if he didn’t “meet his numbers” and that when he didn’t meet them he was fired.
Court’s Holding About Unattainable Goals
The court found for Jeff, finding that the bank’s “strictly performance” argument for terminating Jeff was a mere subterfuge for it’s desire to get ride of him because of his voice condition. The court made the following statement, which is worth copying and keeping on hand at your desk:
The impossible to meet goals, together with Kisicki and Ulmer’s comments and inquiries about Jeff’s voice, made the bank’s “strictly performance” reason for firing Jeff unbelievable.
The Undercover Lawyer’s Take-Away Tips:
1. Ask Yourself if Your Performance Goals are Realistic: You should not have to live under the pressure and threat of having to meet an astronomical performance goal or face termination from your job. A court will be willing to at least evaluation whether your PIP or appraisal was truly meant to increase performance, or was actually a screen for a discriminatory desires to terminate you.
2. Compare your performance goals to others: If you DO feel that your bully boss is assigning you impossible to meet goals in a PIP or appraisal, double-check yourself by comparing your performance goals to the goals assigned to employees who are at your same level. This was a big part of why the court sided with Jeff in the case above; no other employees had any performance quotas, let alone quotas as difficult to satisfy as Jeff’s.
3. Listen and Document What You Hear. Your case becomes many times stronger when you document discriminatory sounding remarks made by management. Jeff found employees who testified that management allowed people to make fun of Jeff’s voice, and management actually talked to customers about Jeff’s voice. It’s this evidence combined with the impossible quotas that together put Jeff’s case over the top. Write down everything you hear that might even possibly be interpreted as discriminatory and you’ll give your case a huge boost.
Your Boss Ever Retaliated Against You in Your Appraisal or ‘PIP”?
If you have experienced this or seen it at your own work, tell us about it in the comments section below or in the forum at http://www.undercoverlawyer.com/forum/
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