Attempting to Document Performance Issues After the Termination

If you’ve ever seen the legal term “post-hoc” and wondered what it meant, it means “after the event.” And this is at the heart of this common type of pre-text. Documenting performance issues after the event – for instance, after already punishing someone – is generally not acceptable behavior.

If a company does document a performance issue, but only after they’ve already terminated the employee, that’s generally a sign that the “performance issue” was a pre-text.

What Does It Mean?

A well-managed and non-discriminatory company will document performance issues or behavior problems with an employee very close to the time, if not immediately upon discovering, those problems.

Generally, the company wants to make a record of the issues, and then address those issues with the employee very quickly. That way, they can nip problems in the bud, get the employee back on track, and prevent any problems in the business.

But when a company fires or demotes someone, or chooses not to hire someone, and then only later documents the reasons for this action, rather than before or during the action, that is generally indicative that the “reasons” were in fact a pre-text.

What Are Some Examples?

In the case of Santiago-Ramos v. Centennial P.R. Wireless Corp, Ms. Santiago-Ramos believed that she had been fired from her job because she’d had a child, and wanted to have another. When she was fired, the company never gave her a reason why – they just let her go. After several weeks, she resolved to take legal action against the company. Only after finding out that Ms. Santiago-Ramos was going to take legal action, the company then created a memorandum identifying the reasons why they terminated Ms. Santiago-Ramos – and back-dated it to the date of her termination. The court found that this was evidence of pre-text.

In the case of City of Salem v. MCAD, the court found that in the case of a hiring decision, reasons to deny an applicant must be present at the time of the decision, and must also be the actual reason the decision was made. In this case, a gentleman applying to be a police officer, despite having the highest scores in a performance evaluation, was not treated fairly during the interview process. He was not told what the format of the interview process was, when other applicants had been told. He was not given instructions that other applicants were given. Ultimately, he did not receive the 2nd interview that all other candidates were granted, and was not selected for one of the four open positions.

In the ensuing legal action, the Police Chief explained that he had several good reasons not to hire the gentleman; other officers had had interactions with him that suggested he did not have the right temperament for police work. However, it was found that these “good reasons” had not been properly documented, came well after the events occurred, and also did not excuse the fact that the gentleman had been unfairly treated during the interview process. The reasons given for not hiring the gentlemen in question were a pre-text, and the court found against the hiring authority.

Go Back To The List of Pre-Texts


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