Evidence of Sabotage is Compelling in Wrongful Termination Cases
Wrongful termination cases involving sabotage are probably the most difficult to prove but also
the most likely to result in massive, multi-million dollar damage awards, including an award of
punitive damages. Sabotage can come in many forms - so many that a complete list of all the
ways in which it can be achieved would be impossible to make. However, speaking generally,
sabotage involves deliberate conduct designed to subvert, obstruct or destroy. Just a few
examples of sabotage I have seen in my practice involve: 1) providing an employee with a work
schedule and then disciplining the employee for not being at work on a date and time the
schedule provided shows the employee was not scheduled to be at work; 2) issuing a "write up"
to an employee for alleged misconduct on a particular date, and then altering the date after
learning the employee was not at work on the date in question; and 3) putting obscene material
on an employee's computer while the employee is away from the desk, and then getting a
manager to go search the employee's computer for something else knowing the manager will
spot the obscene material and take disciplinary action. Another great example of sabotage can be found in the Oscar Award winning movie
Philadelphia. In Philadelphia, actor Tom Hanks plays a lawyer with HIV/AIDS who is fired
shortly after his condition begins to outwardly manifest itself through skin lesions. The law firm's
stated reason for termination is failure to complete important legal paperwork by a certain
deadline. In reality, Tom Hanks' character completes the paperwork by the deadline, but the
law firm "loses" the paperwork to make it appear as if it had never been completed. The movie
Philadelphia is loosely based on a true story.
With technological advances, sabotage is becoming easier to prove in some respects. Most
computers store what is called "metadata", which includes information about
computer-generated documents such as the date and time it was drafted or modified. In
modern lawsuits, it is possible to discover metadata in order to show certain
computer-generated documents were created or modified after-the-fact in an attempt to cover
up the truth. Metadata can also be used to show certain computer-generated documents do
exist or at one time existed, which can be especially powerful evidence where there is a dispute
over the existence of those documents. Despite these advances in technology, sabotage remains difficult to prove. Generally speaking,
the word of one person against the word of another will not be enough to convince a judge or
jury. The key to proving sabotage is documentation and witnesses. Where computers or other
electronic devices are involved in the sabotage, a computer forensics expert is essential. 1/2
Evidence of Sabotage is Compelling in Wrongful Termination Cases
Sabotage comes in many forms. The one common denominator in sabotage is that the
conduct, no matter what form it takes, is cruel and malicious. Accordingly, where the employee
can prove sabotage, the employer faces massive liability. 2/2