By Jason Zuckerman  |  Is a negative performance evaluation an actionable retaliatory action or adverse employment action? If you have been retaliated against for complaining about discrimination in the workplace or have questions about being subjected to a performance improvement plan after complaining about discrimination in the workplace, please contact our office for a free consultation with our Citrus County, Florida retaliation attorneys. Instead, courts require claimants to show an adverse employment action resulting from their employer’s discriminatory and/or retalia… ... Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. However, a negative performance review, by itself, is not enough to support a claim under either New Jersey’s anti-discrimination or whistleblower laws. “An adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 15-4075 (D. N.J. Feb. 14, 2017) illustrates that a suspicious or undeserved performance improvement plan can be evidence of an employer’s desire to retaliate against and eventually fire an employee for complaining about discrimination. For instance: You received a negative performance evaluation. , Washington DC Employment Lawyers. See, Ross v. Douglas Cnty., 234 F.3d 391, 397 (8th Cir. However, problems arise when performance evaluations are influenced by factors outside of your control or when employers abuse their managerial authority by conducting evaluations in a discriminating way. Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. An effective performance evaluation system can help you avoid legal problems by helping you stay on top of performance and conduct issues when they first surface, giving employees notice that they need to improve, and providing evidence of fair treatment if employees must be disciplined or fired. Retaliation is an illegal practice in which an employer takes an adverse employment action against you for taking FMLA leave. A significant contradiction between yearly performance evaluations, and the proffered non-discriminatory reasons. It’s to our company’s benefit to resolve them as soon as possible. When doing so, employers will then use the performance improvement plan or negative performance evaluation to justify the employee’s eventual termination. The principle of all retaliation laws is that an employer cannot take action against an employee who exercises the employee’s right to make a good faith claim of employment discrimination, or assist another employee who has made an employment discrimination complaint. Is a negative performance evaluation an actionable retaliatory action or adverse employment action? For these reasons, Ciecka believed that he was “set up to fail” because of his discrimination complaint. (C) The denial of my merit salary increase for 2012. When a pattern of discriminatory conduct is alleged, specific individual acts should be viewed as a whole, rather than as isolated incidents. For Information Contact. When it comes to performance evaluations in retaliation and discrimination cases, evidence of inconsistencies in performance history can be very helpful in proving a case. You’ll also have the evidence you need to rely on your evaluation in court, if it comes to that. To schedule a preliminary consultation, click here or call us at (202) 769-1681. In denying Cooper Health’s motion for dismissal, the trial court found that Ciecka’s evidence would enable a “jury to infer that retaliation caused [him] to be placed on a [performance improvement plan] and terminated.” In support of this conclusion, the trial court pointed out that Ciecka’s “employment evaluations were positive in the time leading up to the [performance improvement plan] before he made his discrimination complaint.” The trial court also noted that the alleged performance problems identified in the performance improvement plan were “never identified in a performance evaluation.” The trial court further observed that many technologists, most of whom were younger than Ciecka, “had the same deficiencies” identified in Ciecka’s performance improvement plan, yet they were not put on a performance improvement plan or otherwise disciplined. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area. (B) The unfavorable early 2011 performance evaluation I received from Supervisor. Hiring a proven and effective advocate is critical to obtaining the maximum recovery in a discrimination case. 4. , Retaliation A retaliation complaint must be filed with Ethics within 6 months of the day you received the evaluation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. Employee performance reviews are an integral part of a successful business. Title VII of the Civil Rights Act of 1964. If left unaddressed, an illegitimately negative review or one that holds the employee to unrealistic or disparate expectations can often formulate the foundation for a manager to levy further unwanted performance reprimands against the employee, including Performance Improvement Plans, Corrective Actions, disciplinary warnings, or even termination. Contacting Zuckerman Law or providing information to Zuckerman Law about a potential legal claim does not create an attorney-client relationship with Zuckerman Law. In the aftermath of an employee making or supporting a claim of discrimination, performance evaluations … An evaluation merely causing a loss of prestige or status is not actionable.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. Ciecka was fifty-two years old when he was fired on December 11, 2014. Despite his positive performance evaluations, Ciecka was put on a performance improvement plan a few weeks after he complained about age discrimination. However, the process that employers use to evaluate employees must be objective and fair, or else it could result in a discrimination claim.. One example of alleged bias is the lawsuit recently brought against Yahoo by one of its former male editors. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. We believe it’s important that employees aren’t afraid to speak up about any issues. They tend to take suggestions for performance improvement personally and negatively. Seek reviews from the staff, the key personnel or the immediate supervisor. 2000). This Custom WebShop™ attorney website is designed by NextClient.com. Documentation shows that your evaluation – and any job decisions based on it, such as discipline or termination -- is grounded in objective, job-related facts, not illegal considerations such as discrimination or retaliation. But sometimes it's not. 3. Categories: In some cases, an employer’s system for performance evaluations can have a disparate impact on employees. A performance evaluation system is a systematic way to examine how well an employee is performing in his or her job. The United States Supreme Court has recognized that “adverse actions” are not limited to those actions which are economic or tangible. If you return from leave to find that your job has been eliminated, your pay has dropped, or you are asked to perform a different kind of work than previously, you may have a case for FMLA leave retaliation. An environment of fear can only be harmful in the long run. © 2021 Zuckerman Law, All Rights Reserved. Generally, a “poor performance evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s employment. All rights reserved. Are disclosures or complaints about internal controls protected under the SOX whistleblower law? Negative Performance Reviews and Workplace Retaliation by Arkady Itkin One of employers’ favorite ways of retaliating against employees or creating a paper trail for terminating a worker who complains about harassment or discrimination or who demands to have the opportunity to exercise his disability rights at workplace , is by engaging in a campaign of issuing negative performance reviews. The crux of Ciecka’s case was that the circumstances of his employment changed drastically after he complained about age discrimination in June 2014. Maryland employment discrimination Does a retaliatory investigation of a whistleblower violate whistleblower retaliation laws? Then, the court quoted one of the most important recent California Supreme Cases on retaliation Yanowitz v L’Orea l: “Adverse treatment that is reasonable likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of FEHA”. As editor of the Glass Ceiling Discrimination blog, Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues. Constantly review performance for the period. By Jason Zuckerman | Last updated: September 21st, 2020 Courts have held that where performance improvement plans and negative performance reviews precede an eventual termination, they may constitute adverse actions. Performance review examples help in guiding people responsible for drafting performance evaluations to effectively appraise an individual and draft their assessments.. Are disclosures or complaints about the books and records provisions of the FCPA protected under SOX? Once again, this behavior should be suspect if you have a record of good work and positive performance reviews in the past. Asserting EEO rights is called "protected activity." 1998). The company maintained it had fired Pagel for poor performance — for his weak showing in the ride-along with Kremer and overall lack of sales production. Workers enjoy many legal rights outlined by various federal, state and local laws. For example, depending on the facts, it could be retaliation if an employer acts because of the employee's EEO activity to: reprimand the employee or give a performance evaluation that is lower than it should be; transfer the employee to a less desirable position; engage in verbal or physical abuse; 5. As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog. We’ll follo… Pagel sued for FMLA interference and retaliation. Discriminatory actions should not be viewed individually, with each act itself required to constitute an “adverse employment action,” but rather the court should determine whether the actions, viewed as a whole, were discriminatory and connected to one another. Anti-Money Laundering Whistleblower Protection Law. 10.10 civil rights—title vii—"adverse employment action" in retaliation cases An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from making or supporting a … That month, Ciecka told Human Resources that his immediate supervisor, a man named LeBender, made references to his age. Methods of Proving Retaliation. From this evidence, the trial court determined that a “jury could chose to read between the lines and link the few weeks between [Ciecka’s] discrimination complaint and [the performance improvement plan] with the inconsistencies and contradictions in Cooper Health’s changing assessment of [Ciecka’s] job performance to conclude that Cooper Health unlawfully retaliated against him for making a complaint of age discrimination.”. Ciecka was employed as a radiology technologist by Cooper Health. 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Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing retaliation victims. Having dedicated their practice to representing employees who have been retaliated against for complaining about discrimination in the workplace, our Citrus County, Florida wrongful discharge attorneys have learned that employers often use performance improvement plans and negative performance evaluations as weapons to punish employees who complain about discrimination. This case serves as a reminder to employers that a performance evaluation has the potential to give rise to a retaliation claim. 6. Performance evaluations are not regulated under employment law. Poor performance reviews don’t need to be a pretext for firing. Having dedicated their practice to representing employees who have been retaliated against for complaining about discrimination in the workplace, our Citrus County, Florida wrongful discharge attorneys have learned that employers often use performance improvement plans and negative performance evaluations as weapons to punish employees who complain about discrimination. Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship with Zuckerman Law. However, these rights mean little if employees must suffer retaliation for exercising these rights. Our No Retaliation company policydescribes our provisions towards employees who file reports for harmful, discriminatory or unethical behaviors. Courts have held that where performance improvement plans and negative performance reviews precede an eventual termination, they may constitute adverse actions. You believe this happened because you stepped forward to report improper governmental action. Consider the degree of difficulty of a given task. That retaliation included: (A) Supervisor’s discontinuance of my modified work schedule. They know that if the performance evaluation is less than stellar, they risk alienating the employee. pay, benefits, awards or training; referral for mental health evaluations under reference 1d; and any other significant change in duties or responsibilities inconsistent with the member's grade. Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment. Other Aspects of Poor Performance Reviews. 17. 2004) (citations and internal quotation marks omitted). When interviewed by Human Resources about Ciecka’s age discrimination complaint, LeBender admitted to commenting on Ciecka’s age. Judge the output, not the potential of the employee, for potentials are limitless. Notice: Due to COVID-19, we will be conducting all consultations either via video chat, phone, or email and our offices will remain open from 8 AM - 5 PM. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. If you notice, the word systematic implies the performance evaluation process should be a planned system that allows feedback to be given in a formal—as opposed to informal—sense. No one likes an unsatisfactory performance review, especially one that you believe to be motivated by unlawful discrimination and/or retaliation. Feedback or performance evaluation, in and of itself, is not bullying. Even though the anti-retaliation laws are very broad, employers remain free to discipline or terminate employees for poor performance or improper behavior, even if … State and federal courts recognize that “adverse employment actions” include actions short of those causing economic disadvantage. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers. While a poor review may be recognized as discriminatory, courts often require additional evidence to prove employer retaliation. In that case, Michael Ciecka (Ciecka) brought a retaliation lawsuit against his former employer, The Cooper Health System (Cooper Health), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Cooper Health filed a motion with the trial court seeking dismissal of Ciecka’s retaliation claim. The trial court denied Cooper Health’s motion for dismissal and ruled that Ciecka had presented sufficient evidence of retaliation to proceed to a jury trial. Because his performance did not improve, Cooper Health maintained, Ciecka could not establish that he was fired in retaliation for complaining about age discrimination. ... including a negative performance evaluation that did not include a … Compare the target or standards set by the company to the performance of the employee. Last updated: September 21st, 2020. On December 11, 2014, Ciecka was fired for failing to improve his performance while under the performance improvement plan. Allegations of retaliation described in paragraph 4a(1) will be referred to, and The content on this website is the property of Zuckerman Law and may not be used without the written consent thereof. Discriminatory or unethical behaviors harmful in the long run in the past that Cooper Health system, No exercising rights... 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