Hostile Work Environment Definition
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Can Your Abusive Boss’s Unattainable Goals for You Actually be Discrimination Against You?

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:

Regarding the quota, we have previously held that it is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up an employee for failure. Willnerd v. First National Bank (citing Denesha v. Farmers Ins. Exch., 161 F3d 491, 499 (8th Cir 1998) (holding the imposition of unattainable production goals on an employee was evidence supporting a jury’s finding of discrimination)).

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/

If you want more practical insider secrets to taking back your workplace from a bully boss or harassing supervisor, check out the store page at http://www.undercoverlawyer.com/store-page

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Comments

  1. Abused worker says:

    Hi there,
    I hope I get some help here. I’ve purchased and read the book. It has very important keys for me to use if I want to fight. However, I am still confused on what actions to take, and whethere any of them will really guarantee for me to be untouchable.
    I work at a company with the same boss for over 3 years. He is moody at times, but I am able to handle most of those moods,bullying,harrasement, laughs,breathing down my neck, mostly I think be cause I am a jewish mother and a wife. This past week it was impossilbe because, I am thinking, I am being retaliated against. What originally happened is that I was written up for something that my boss set me up for, which wasn’t my fault at all, and when I was presented with a warning, I was surprised, because he clearly knew it was due to his fault. At that point I refused to sign the understanding of the worning and let him know that I will fight, and scheduled to see our CFO (HR resigned 2 weeks prior) I have spoken to CFO and he let me know that the new HR that will be coming in will be taking over and investigating. My boss was aware that I was speaking with CFO. Next few days he was very nasty, trying to give tidious projects that are not as important as some other due to dealines (in accounting department) I was unable to take his harrassement and got really sick the next 2 days. I was furious when I met 2 recruiters when waiting for an elevator with my bosses business cards. I was still feeling weak, but I desided to go to see the CFO again to share my fears that my boss is getting ready to replace me because I spoke to him about his behavior towards me. When the new HR came This past week he came up with a unrealistic list of duties for me to be done before the end of the day. During that day there were other urgent requests that had to be taken care of which he was verry well aware of, because I was replying to his email with my completions, to wich he replied “lets descuss before your departure”. I did what was possible and was gettign ready to leave, when he approached me. He accused me of not completing the tasks that weren’t even on the list he provided me that morning and replied with a long email 20 minutes I left with everything I supposedly failed to do that day.

    for this case discrimination seems the answer to go about.

    Another way is gender discrimination. He was harrassing a woman before I joined, and he got another girl during my woring there fired. And about a year ago he hired a girl intern eventhough we have the budget. I know once he was using a temp who was a male and wanted to hire, the guy refused and never came back.

    There are a few other ways I can go. I already have special priveleges as starting my work day early and leaving earlier that everyone else. And use my vacation time to substitute for my early departure for Shabbat. I am not sure if that is why he wants me out(we are aproaching early sundown)

    I also have a disablility my employer and co-workers don’t know about. so far I am able to work but stress gives me flare ups.

    This is what I mean when I say I am confused.

    Please Help me with my best way.
    Abused Worker

  2. Alaskaemployee says:

    My boss, Becky is the worst. I don’t know where to start. Myself and our past clerk endured hostility for four months from our immediate supervisor NZ. Becky would not do anything and often sided with NZ, stating, “she’s your supervisor do as she says. Or, I wish you could just get along, and finally, I’m so sick of hearing about your problems with NZ.”

    When I finally went over Becky’s head and wrote an email to our Div. Director, I received a threat of insubordination and formal hearing notice from Becky. (I was cleared.)

    Months later I receive a bad evaluation and the investigation was included in the evaluation. Before rebutting the evaluation, I email our State of Alaska Dept. Commissioner to say,” I’m going to rebut this and I expect retribution if I do.” 9 days after the evaluation talk, Becky suddenly comes up with a new threat of firing stating formally that I yelled at her and was threatening to her in our meeting 9 days prior.

    Only I recorded the conversation and the tape showed she lied. But she had already lined up my new boss Elaine to attest in writing that she heard me yell.

    I filed an EEO complaint and tomorrow I have a feeling EEO may be sweeping it under the rug when they call me with the results of the investigation, because today I received another trumped up bad evaluation and again there’s about new 3-4 lies (the last eval also had libelous statements) and this one also mentions the second investigation where I was marched through the humiliation of defending myself because they said the tapes weren’t that clear. (…We couldn’t always hear Becky, they said. What’s important is you can hear me clear as day and I did not yell or ever sound threatening on the tapes.

    I wrote to the Governor about this. I’m ready to write to all of the Alaska newspapers if EEO does not tell me tomorrow that they are going to stop this harassment and recommend the removal of these two evaluations.

    Is one and a half years of complaining and receiving retribution reasonable from an entity like the STATE OF ALASKA?

  3. Alaskaemployee says:

    I forgot to mention. This woman ran into the back of my car. (Miles from work.) While my boyfriend was driving and he was sitting at a stop sign. There was no sound of brakes, wham she rear-ended him without warning. He didn’t know who she was and she was beligerent to him. He did not have a cell phone to make a police report and he let her go because there was no damage and he didn’t think he was hurt. The next day his neck began to hurt and has hurt for the past 18 months.

    I told my boyfriend you can’t file a police report, I will never make permanent status at my job because Becky has it out for me. If I did not make permanent I could have lost my 80% medical and retirement at 55. (I’m 53) When I became permanent 6 months later, the insurance company said too bad you’ll have to sue Becky.

    I think she may have run into him on purpose. She was mad at me for going over her head with my complaints against NZ, along with all of the other deliberate stuff she has done to me at work, I can’t help but think this. There can only be so many coincidences.

Trackbacks

  1. pligg.com says:

    Can Your Boss’s Unattainable Goals for You Actually be Discrimination Against You? | UndercoverLawyer…

    A boss’s imposition of unattainable goals on an employee can be a discriminatory effort to set up an employee for failure and create a hostile work environment….

  2. Can Your Boss’s Unattainable Goals for You Actually be Discrimination Against You? | UndercoverLawyer…

    A boss’s imposition of unattainable goals on an employee can be a discriminatory effort to set up an employee for failure and create a hostile work environment….

  3. Can Your Boss’s Unattainable Goals for You Actually be Discrimination Against You? | UndercoverLawyer…

    A boss’s imposition of unattainable goals on an employee can be a discriminatory effort to set up an employee for failure and create a hostile work environment….

  4. tecigg.com says:

    Can Your Boss’s Unattainable Goals for You Actually be Discrimination Against You? | UndercoverLawyer…

    A boss’s imposition of unattainable goals on an employee can be a discriminatory effort to set up an employee for failure and create a hostile work environment….

  5. Can Your Boss’s Unattainable Goals for You Actually be Discrimination Against You? | UndercoverLawyer…

    A boss’s imposition of unattainable goals on an employee can be a discriminatory effort to set up an employee for failure and create a hostile work environment….

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