pretext for discrimination? retaliation/wrongful termination

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Latest post 08-01-2006 12:48 PM by LynnM. 15 replies.
  • 07-28-2006 12:04 PM

    pretext for discrimination? retaliation/wrongful termination

    This all started as a terrtory dispute.

    My employment agreement stated my territory and the markets I would be working in. I was also given a follow up document with the countys avaialble to work in my territory. However, over 1/3 of the territory offered ended up belonging to an affilaiate company which has all exclusive rights to that market. It turns out that I would NEVER have had the opportunity to work that area. (Breach of contract/fraudulent inducement?)

    6 months down the road they eliminate another 1/3 of my territory and giving it to a new hire. I started making alot of noise about this and my boss retaliated by fabricating a poor performance review saying I was not meeting quota with a performance improvement plan. In reality my peak performance has been 129% and my lowest was 111% of goal the entire time I have worked there. It was between mar/apr/may that it slid to 111% but went back up to 121% in June and July. They said because of that downward turn I am being written up and provided with a performance improvement plan for poor performance. Is this ridiculous or what? I am number 6 in the comapany and have always been in the top 10. I am over 40 and feel this may be a pretext to replace me with someone younger. I know for a fact that the other 30 salespeople below are not receiving poor performance reviws and nowhere near even 100% of their goals. Overall it is a youth oriented company (dot.com)

    Anyway I refused to sign the written warning because I thought it was completely ridiculous. Even though I did not sign it and was being harassed to sign it, I still met the terms of the improvement plan for June and July.

    After their continued harassment of demands to sign this document I told them I felt I was being treated differently and I wanted to register a formal complaint as stated in the handbook. The handbook states that there will be no retaliation as well as an investigation with the complaint procedure. This was not done. I also called the company president to voice my concerns since HR was not cooperating. He was out of town and I could not reach him. Another attempt was made to get me to sign and agree with the poor performance review. I emailed HR late in the afternoon and told them that I was going to discus it with an attorney as well as the Dept. Of Labor and the EEOC. I was terminated the next morning. Retaliation?



  • 07-28-2006 1:20 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    IFit is a pretext for age discrimination you need to file a complaint with the EEOC.

    Signing a performance related document does not mean you agree with it, only that you have read it. Refusing to sign it is insubordinatin and could be legitimate grounds for termination.

    The handbook is not enforcable as a contract.
  • 07-28-2006 2:26 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    How do you prove if it was for age discrimination? It's not like they would be as easy as looking into my file and seeing if they wrote that I am too old for the job and to replace me with a younger model!

    I was not going to sign a fabricated poor performance review and improvement plan that I did not agree with. They have already said that my terminaination was due to poor performance/quota which is absolutely not true and provable by no shadow of a doubt.
  • 07-28-2006 3:32 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    "I was not going to sign a fabricated poor performance review and improvement plan that I did not agree with. "

    Did you read what I wrote?? Signing it does not indicate agreement. Refusing to do so accomplishes nothing.

    As for proof of age discrimination - well, you have to show you were treated differently because of your age. Generally that requires showing a pattern of people being trested differently because of age.
  • 07-29-2006 2:31 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    If I go to EEOC and go to mediation or if they file a charge can I ask for reinstatement even if if I get a leeser or better job?
  • 07-29-2006 9:17 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    Get a lesser or better job where?

    You can ask for reinstatement. Doesn;t mean you'll get it.
  • 07-30-2006 8:41 AM In reply to

    • Cica
      Consumer
    • Top 25 Contributor
    • Joined on 09-23-2003
    • Posts 6,519

    Feedback [*=*] re: pretext for discrimination? retaliation/wrongful termination

    As is generally indicated on these review forms, all that your signature means is that you are acknowledging receipt, not that you agree with the statements. You can be terminated for refusing to sign it (as I learned from one of the HR reps who contributes to the boards).

    If it's any consolation I don't think that my technique of signature was exceptionally brilliant. It was comprised of the written statement on the form: "Please be advised that it is now my intent to contact EEOC" -- followed by no signature.

    I probably could have been dumped...
  • 07-30-2006 10:36 AM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    I don't know why you guys are so hung up on a signature. They are not going to shove a false document and make me sign it--no way. That is not even the issue here. I maintained a percentage of 117%-129% of my quota the entire time I was employed and they were trying to give me a written warning for poor performance/quota and a performance improvment plan. I was NOT going to sign it, because it was ridiculous. They were actually making a point that I started at 129% and went to 117% and I was getting written up for this downward trend. Evn though it was already halfway through the next month and I was already back up to 121%.

    The performance improvement plan that I refused to sign said I had to sell a certain amount for June and July. I was already at that point for June when they did this, but they refused to acknowledge it. Guess whht? I sold 1 and a half times what they asked for and STILL got fired. How dare they attack my performance when over 2/3 of the salespeople are not even at 100%!

    It only started after they hired a younger new hire to take half my territory. And that was after they had already breached my contract for another third of my territory from the beginning.

    They had already breached my contract by not giving me a big part of the territory promised in writing. In fact I have found out that legally that part of the territory belongs to an affiliate that has exclusive rights. I believe this was fraudulent inducement.

    I made some noise in the beginning from the first breach, but when they gave this new hire half of the rest of the territory 6 months down the road I was very angry.
    Circumstances due to Hurricane Katrina have made it impossible to have thi part of the territory to stay viable and the new hire got that part. She has no experience with my clientele either. I have know my clientele for years from a previous job. She has now been with the company a month and a half and has sold absolutely nothing. I think it is hilarious.


  • 07-30-2006 3:35 PM In reply to

    • Cica
      Consumer
    • Top 25 Contributor
    • Joined on 09-23-2003
    • Posts 6,519

    re: pretext for discrimination? retaliation/wrongful termination

    "I don't know why you guys are so hung up on a signature. They are not going to shove a false document and make me sign it--no way."

    Okay. You didn't sign it. (But now you're unemployed.) You'll need a little more than the age differential between you and one employee to support your claim that it is an age discrimination issue.

    Considering the fact that you were contracted, it would be to your benefit to have an attorney review your contract, and evaluate the sequence of everything that transpired prior to your termination.

    Good luck.



  • 07-30-2006 4:47 PM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    They didn't give me a reason at first but now they are saying poor performance/quota was the reason I was terminated which is obviously false and a pretext. They breached my contract to begin with and it escalated when they gav away MORE of my territory down the road and with the new hire.
  • 07-30-2006 11:02 PM In reply to

    • Cica
      Consumer
    • Top 25 Contributor
    • Joined on 09-23-2003
    • Posts 6,519

    Feedback [*=*] re: pretext for discrimination? retaliation/wrongful termination

    By contract I am presuming that you are talking about a written agreement that outlines the employee/employer relationship for a specified time (e.g., May 15, 2006 to May 14, 2008).

    You really should have an attorney review it in its entirety. A fundamental breach that could result in your dismissal for just cause includes breach of rules/company policy; insolence; disobedience; and, refusal to sign written warnings.

    Over a message board we can only give basic responses to questions. No one has copy of your contract.

    Use the Find a Lawyer thing to the right to find an employment law/contract attorney in your area.

    Again, good luck.
  • 07-31-2006 8:13 AM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    You guys aren't reading! I was NOT fired for not signing the warning and improvement plan. Get off of this ridiculous thing. It is really silly. Signing it made me agree with the warning and the improvement plan no matter what you say and I wasn't going to give in to the lies.
    I will not sign a fabricated warning. I was fired for poor performance/quota which is ABSOLUTELY false (pretext)
    I was way above 100% the entire time and at least 2/3 of the sales staff was not even at 100%
    The breach occurred in the beginning when they offered me a territory that they never intended for me (and legally could not offer me) to have. Then 6 month later they give another chunk of my territory to a new hire. This left me with only 1/3 of the territory that I was promised in the offer after they had already taken the part that they could not give me and it would be impossible to sustain a quota on this small of a territory.
  • 07-31-2006 8:43 AM In reply to

    • Cica
      Consumer
    • Top 25 Contributor
    • Joined on 09-23-2003
    • Posts 6,519

    Ok [+0+] re: pretext for discrimination? retaliation/wrongful termination

    Okay. Don't talk with an employment law/contract attorney. Continue to post repetitive rabble on a message board, and knock anyone who attempts to assist.

    I'm outta here. (Again...good luck!)



  • 07-31-2006 12:46 PM In reply to

    Disagree [)*(] re: pretext for discrimination? retaliation/wrongful termination

    Absent a contract which guaranteed you that territory for the entire time of your employment, taking it away from you was perfectly legal.
  • 08-01-2006 9:10 AM In reply to

    re: pretext for discrimination? retaliation/wrongful termination

    You guys aren't reading! They did not intend for me to have the part of the market that was owned by the affilliate that was in my agreement. My agreement states that I will be a ________ manger for "A/B" market. The "B" market was never available for them to give me due to affiliate exclusivity and they never intended for me to have it. I never was able to set foot in that market to sell.
    I believe that is fraudulent inducement and or misrepresentation

    Th second part is 6 months down the road they took half of "A" market and gave it to a new hire.

    .
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