Monday, May 21, 2012

Can a Poor Performance Review Be Considered an "Adverse Employment Action"?

One of the elements of a discrimination claim is that the employer take an "adverse employment action" against the employee.  For an employer's act to constitute an adverse employment action it must "constitute '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.'"  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  Whether an action is an adverse employment action for a plaintiff to help meet their prima facie case is often the subject of litigation and recently the Court of Appeals for the Sixth Circuit had to decide whether a negative performance review constituted an adverse employment action, which is a fact-specific inquiry.


Traditionally, a negative performance review does not constitute an adverse employment action, unless "the evaluation has an adverse impact on an employee's wages or salary." Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 322 (6th Cir.2007).  However, in Goldfaden v. Wyeth Laboratories, Case No. 10-1799 (6th Cir. 2012), the 6th Circuit concluded that a warning letter issued to an employee constituted an "adverse action" even though the employee quit her job before she could suffer any consequences from the warning.  Why?:
She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been.... We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment....
The other adverse employment action alleged was constructive discharge but the plaintiff failed to meet her burden given her conduct prior to the negative review in violating a company policy.  The Court nevertheless held that the negative review "howed that she was “in jeopardy of suffering” a “tangible employment action” as a result of the warning letter which “downgraded [her] evaluation.”  Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000).


The plaintiff ultimately still did not prevail on appeal as she could not show that she was treated differently than other similarly situated males, another element of the prima facie case under Title VII.  The Court further noted that even if the plaintiff did show a prima facie case, she still couldn't show pretext on the part of the employer.

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