Appraisal must be tied to adverse action to be retaliation

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in Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Supervisors often feel as if they are walking on eggshells after an employee has filed a discrimination complaint. After all, just about anything they do after a complaint has been filed could be seen as retaliation.

If supervisors ask what to do, tell them this: Treat the employee as you would any other. Don’t provide special consideration. Use common sense. If the employee’s performance has been slipping, go ahead and note that on a performance appraisal.

Recent case: Yves Gelin filed a discrimination complaint against his employer, the IRS. When he received his next performance appraisal, he felt his supervisor had “downgraded” him. You guessed it—he sued for retaliation.

But the trial court tossed out the case, and the 2nd Circuit Court of Appeals upheld the dismissal. Gelin never showed how the performance appraisal harmed him, so he couldn’t make a case for retaliation. In fact, since the appraisal was overwhelmingly positive and ranked Gelin as “outstanding,” his subjective impression of being downgraded didn’t matter. (Gelin v. Paulson, Secretary of the Treasury, No. 05-6043, 2nd Cir., 2007)

Final note: Win retaliation cases with good documentation and fair play. Here, the IRS could back up its appraisal; it ranked Gelin lower in areas before he complained.

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