Former employee says Under Armour destroyed evidence crucial to her wrongful termination lawsuit
A former Under Armour employee who says she was fired for reporting on inappropriate work behavior says the company and a former manager “willfully destroyed” communication data that is crucial to her wrongful termination lawsuit.
Cynthia Pajak, a former regional director who was fired in December 2018, asked a federal judge for permission to amend her lawsuit to include allegations that the company failed to protect the information as required by court rules. She seeks damages or, at the least, wants a potential jury to be instructed that they can draw an “adverse inference” on why cell phone, email and other information was purged.
Pajak filed her federal lawsuit in 2019, alleging Brian Boucher and Under Armour forced her out because she started reporting on and documenting inappropriate behavior by male employees. Boucher was the former Head of Stores for Under Armour’s North American and Global Retail Operations until he left the company in March 2019, according to court documents.
Some of the incidents alleged include a 2018 meeting in Clarksburg where a manager did a “striptease” act, taking of his shirt, and another manager who told a female employee at the meeting she “was hot and he wanted to be her boyfriend.” One employee posted a picture of himself in nothing but a Speedo-type bathing suit on a company message system, the lawsuit alleges.
Pajak, who’d worked with Under Armour for six years, said in the filing that she enjoyed her job and had no intention of leaving prior to her 2019 firing, despite pressure from Boucher and others. According to the lawsuit she made nearly $250,000 annually in salary, bonuses and company stock.
In the latest amended complaint filed on February 18, Pajak looks to expand the lawsuit to add claims of spoiling the evidence against Boucher and Under Armour. The company and Boucher have until Friday to respond, and a hearing has been scheduled for March 4.
The issue relates largely to Boucher’s cell phone, which was issued and controlled by Under Armour, according to court documents.
Court documents state that Under Armour was notified of a duty to retain any relevant evidence related to Pajak in February 2019 as she pursued her eventual lawsuit against the sportswear company.
Pajak’s attorneys wrote in the filing that during a deposition, Boucher “testified he had erased vast amounts of data before providing his devices to Under Armour” prior to his departure in March 2019. Pajak claims some of the deleted data includes text messages between she and Boucher as well as inappropriate text messages from Boucher to another unnamed employee.
According to a transcript of Boucher’s deposition, he maintained that he forwarded all relevant communication regarding Pajak to a company employee and gave his cell phone and laptop to company representatives to be searched and archived for legal purposes.
However, according to the deposition, Under Armour’s representatives said they could not retrieve any communication between Boucher and another female employee. Boucher said he wasn’t sure if he had activated the phone’s online backup and that “as I was getting ready to leave the company, I cleared up a lot of emails.”
Attorneys for Under Armour declined to comment while Boucher’s attorney did not return requests for comment. An Under Armour spokesperson declined to comment.
Under Armour’s attorneys have argued that Pajak was fired for a lack of performance, while Pajak’s attorneys write that Boucher set up a sham “performance improvement plan” to have a pretext for firing her and weaken any potential action she could take against the company.
“Under Armour willfully destroyed evidence by failing to effectuate its own retention policies and failing to preserve data relevant to Ms. Pajak’s claims, despite its knowledge of the impending litigation and the subsequent litigation hold in place,” the complaint reads.
“Without this evidence, Ms. Pajak will be prejudiced in the presentation of her case because she does not have access to the relevant information that Under Armour failed to preserve,” Pajak’s attorneys wrote.
