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Performance improvement plan was contrived to retaliate: suit
Los Angeles County
Superior Court of Los Angeles County, Los Angeles
Employment – Retaliation; Discrimination – Fair Housing Act; Employment – Wrongful Termination, California Family Rights Act
Mark Flores v. Office Depot Inc., Jorge Vazquez and Does 1 through 100,
February 6, 2017
Mark Flores (Male, 58 Years)
Eric A. Panitz;
DesJardins & Panitz LLP;
Mark Flores ■ J. Bernard Alexander, III;
Alexander, Krakow + Glick, LLP;
Mark Flores ■ Joshua M. Arnold;
Alexander, Krakow + Glick, LLP;
Anthony Reading; Ph.D.; Psychology/Counseling; Beverly Hills,
CA called by:
Eric A. Panitz, J. Bernard Alexander, III, Joshua M. Arnold ■ Marianne Inouye; M.B.A.; Economics; San Marino,
CA called by:
Eric A. Panitz, J. Bernard Alexander, III, Joshua M. Arnold
Office Depot Inc.
Helene J. Wasserman;
Littler Mendelson, P.C.;
Jorge Vazquez, Office Depot Inc. ■ Eric A. Cook;
Littler Mendelson, P.C.;
Jorge Vazquez, Office Depot Inc.
In June 2013, plaintiff Mark Flores, 56, a supply chain supervisor for Office Depot, in Long Beach, returned from medical leave after undergoing neck surgery. Four work days later, Flores was placed on a performance improvement plan. Two months later, in August 2013, Flores was terminated from his position. Flores sued Office Depot Inc. and his supervisor, Jorge Vazquez. Flores alleged that the defendants’ actions constituted wrongful termination, retaliation in violation of the California Family Rights Act and the Fair Employment and Housing Act, and failure to prevent retaliation. Vazquez was ultimately dismissed from the case, and the matter continued against Office Depot only. Flores claimed that he angered his supervisor, Vazquez, by taking a medical leave and by complaining to human resources about how Vazquez had directed him to "performance manage out" two older employees. Thus, he claimed that his performance improvement plan was contrived. Plaintiff’s counsel contended that Office Depot’s Human Resources Department failed to conduct a good-faith investigation in response to Flores’ complaints of discrimination and retaliation, despite the fact that Vazquez had failed to document any prerequisite counseling or coaching prior to the issuance of the performance improvement plan and despite Flores’ long history of performance evaluations, which "met" or "exceeded" expectations. Vazquez testified that Flores’ peers had problems trusting and working with Flores. He alleged that as a result, he submitted five "Manager’s Record of Discussion" reports to human resources prior to issuing a performance improvement plan to Flores. Defense counsel contended that Office Depot’s decision to terminate Flores’ employment was wholly appropriate under all of the circumstances and that it was absolutely unrelated to any alleged protected category and/or activity. Defense counsel presented evidence at trial that Flores had been coached on his interpersonal skills, savvy, and peer relations for a significant period of time before he was actually placed on a performance improvement plan. Counsel contended that Flores was placed on a formal performance improvement plan after he failed to improve in areas that had been well-noted in his prior performance evaluations and other documents that noted areas for improvement. Defense counsel also noted that the plaintiff’s psychological expert testified that Flores had been coached by multiple managers prior to being placed on a formal performance improvement plan. Defense counsel further argued that there was no evidence that Flores had made any complaints about any alleged improper conduct by Vazquez prior to being placed on the performance improvement plan. Counsel maintained that once the complaint was made, a thorough investigation was conducted by Office Depot’s highly experienced human resources team. In response, plaintiff’s counsel argued that several witnesses impeached Vazquez’s stated reason for the performance improvement plan. Plaintiff’s counsel also argued that human resources failed to confirm that prior coaching and counseling had occurred, which should have been confirmed by the existence of the manager’s records of discussion, as prepared by Vazquez as a prerequisite to any issuance of a performance improvement plan to Flores. Thus, counsel argued that Office Depot’s Human Resources Department approved the issuance of the performance improvement plan, despite the non-existent manager’s records of discussion. Counsel further argued that, in response to Flores’ complaints of discrimination and retaliation, the western regional director failed to issue even-handed instructions to human resources about conducting an investigation of Flores’ version of the facts, but, instead, presumed that Vazquez’s version of events was accurate, wholly ignoring the possibility that Flores’ version of events was accurate and truthful.
Flores, a 17-year employee of Office Depot, claimed that he suffers from emotional distress as a result of his termination. He subsequently sought counseling, which he claimed he will continue to undergo. Thus, Flores sought recovery of economic damages for past and future medical expenses, and non-economic damages for his past and future emotional pain and suffering. He also sought recovery of punitive damages against Office Depot. Defense counsel contended that Flores’ physician’s reports reflected that Flores was feeling fine and that Flores was planning international travel within days of being placed on the performance improvement plan. Thus, defense counsel argued that it was not until several months after the lawsuit was filed, and nearly two years after his termination, that Flores first sought mental health treatment.
The jury found that Office Depot violated the California Family Rights Act and the Fair Employment and Housing Act. It also found that Office Depot’s actions constituted retaliation and failure to prevent retaliation. Thus, the jury determined that Flores’ damages totaled $10 million, including $2 million in general damages, and $8 million in punitive damages based on the failure-to-prevent-retaliation claim.
Mark Flores: $29,000 Personal Injury: Past Medical Cost; $40,000 Personal Injury: Future Medical Cost; $8,000,000 Personal Injury: Punitive Exemplary Damages; $867,000 Personal Injury: Past Lost Earnings Capability; $710,000 Personal Injury: Past Pain And Suffering; $354,000 Personal Injury: Future Pain And Suffering
Daniel S. Murphy
10-2 as to FEHA retaliation; 9-3 as to CFRA retaliation; 10-2 as to failure to prevent retaliation; 9-3 as to punitive damages
9 male/ 3 female
This report is based on information that was provided by plaintiff’s and defense counsel.