The Employer’s Retaliatory Dirty Trick: Setting An Employee Up For Failure

Employers, our wrongful termination lawyers in Sumter County, Florida know, have a bagful of dirty tricks they use to retaliate against employees who complain workplace discrimination. When dipping into their bagful of retaliatory dirty tricks, employers will subject employees to disciplinary action, unfavorable work schedules, reduced hours, or performance improvement plans. Playing the long game, some employers will retaliate against employees by setting them up for failure. For example, employers will obstruct the efforts of employees to succeed at their job by imposing unrealistic performance requirements, assigning them the most difficult job duties, withholding work-related assistance, or implementing an increased workload. In the most egregious retaliation cases, employers will even sabotage the work performance of employees in order to fire them for poor performance.

In this article, our wrongful termination lawyers in Sumter County, Florida explain how the alleged facts in Allen v. United States Postal Service, 63 F.4th 292 (5th Cir. 2023) are illustrative of how employers’ dip into their bagful of retaliatory dirty tricks.

Wrongful Termination Lawsuit

In that case, a woman named Allen brought an employment discrimination lawsuit against her former employer, the United States Postal Service (“USPS”), pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA prohibits employers from discriminating against employees on the basis of age. To protect employees, the ADEA contains an anti-retaliation provision. The ADEA’s anti-retaliation provision forbids employers from retaliating against employees because they complained about perceived age discrimination in the workplace. Allen alleges, in relevant part, that USPS violated the ADEA by firing her because she complained about perceived workplace age discrimination.

In April 2018, USPS hired Allen as a city carrier assistant. In July 2018, before Allen’s probationary period lapsed, the station manager fired Allen. Allen initiated an Equal Employment Opportunity (“EEO”) complaint regarding her termination. She alleged that USPS fired her because of her age, marital status, and disability. In November 2018, Allen and USPS resolved the EEO complaint in a written settlement, pursuant to which Alleen would be reinstated as a carrier assistant. On December 8, 2018, Allen began her reinstated position, subject to a renewed ninety-day probationary period.

The facts and circumstances of Allen’s second period of employment are disputed. USPS claims that Allen was “inefficient,” “resulting in expanded street time and delayed mail, which cost the USPS additional money.” An employee evaluation form indicated that, as of January 7, 2019, Allen’s performance was “unacceptable” in three of six areas subject to evaluation. Allen’s performance was “satisfactory” in three of the six areas subject to evaluation. According to her supervisor, Allen’s “deficiencies included poor scanning, clock ring errors, and delaying the delivery of mail.” USPS claims that Allen “was not receptive to feedback” and “was advised of her deficiencies,” but her “work did not improve.”

Worker Claims She Was Set Up To Fail

Allen’s evidence “tells a different story.” Allen claims that the station manager and her supervisor “set her up to fail so [the station manager] could terminate her for poor performance.” For example, Allen alleges that her supervisor instructed her to “clock in daily to the street time code upon her arrival at work,” which forced her to “perform office duties while on street time,” thus “creating the appearance of expanded street time.” Further, according to Allen, the delayed mail was due to Allen’s supervisor “hiding mail from her and not giving her an arrow key to open mail receptacles on her route.” According to Allen, another carrier sorted her mail, “so it was often missorted.” “Dealing with missorted mail added to her street time and resulted in delayed mail.” Allen also states that the station manager and her supervisor would hide mail and parcels from her before she left on her route, and then would call her back, claiming that she had left mail and parcels. Allen claims that she did not, as her supervisor says, leave her scanner in the building. Allen says that her scanner was “taken by someone” when she went to the restroom, and she could not deliver mail until she received another scanner.

On January 6, 2019, approximately one month into her reinstated employment, Allen initiated another EEO complaint. She alleged that she was being targeted for age-based discrimination and retaliation for her prior EEO activity.

USPS fired Allen on February 26, 2019. The letter of separation, signed by the station manager, lists three reasons for Allen’s termination: (1) “failure to perform work which meets the expectations of the position”; (2) “failure to accomplish tasks in an efficient and timely manner”; and (3) “failure to work at a sufficient speed to keep up with the amount of work required by the position.”

Evidence Of Retaliation

The trial court dismissed Allen’s retaliation claim. On appeal, the United States Fifth Circuit Court of Appeals reversed the trial court’s decision and reinstated Allen’s retaliation claim. In reversing the trial court, the Fifth Circuit focused on Allen’s allegations that USPS “made it impossible for her to succeed upon her reinstatement.” The “uniting theme” of Allen’s allegations, the Fifth Circuit explained, is that the station manager and her supervisor “set her up to fail so that the [store manager] could terminate her for poor performance” by “obstructing her efforts to succeed at her job, including hiding her mail, making her clock into street time when she was in fact in the office, and denying her the tools necessary for deliveries.” “None of these facts,” the Fifth Circuit pointed out, “was discussed by the [trial] court.” These facts, the Fifth Circuit reasoned, suggest, at best, Allen’s “innocence of poor performance and, at worst, sabotage.”

Based on this evidence, the Fifth Circuit concluded that “a reasonable jury could find” that “USPS’s proffered explanation for Allen’s termination is false or unworthy of credence” and thus a “pretext for retaliation based on her EEO activity directed against the USPS.”

Sumter County Wrongful Discharge Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our wrongful termination attorneys in Sumter County, Florida have fought for the rights of wrongful termination victims for more than twenty years. If you have been wrongfully terminated or have questions about whether you have been wrongfully terminated in violation of employment law, please contact our office for a free consultation with our wrongful termination lawyers in Sumter County, Florida. Our employee rights law firm takes wrongful termination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.