Court: Less than stellar review isn’t retaliation — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Court: Less than stellar review isn’t retaliation

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in Discrimination and Harassment,Human Resources

Some employees who file discrimination claims are on the lookout for retaliation. It’s easy to see why: Proving retaliation is often easier than proving the underlying discrimination that was the basis for the original complaint. That’s because retaliation can include any materially adverse action that would cause a reasonable employee not to complain in the first place.

Still, an ordinary employer action—such as preparing a performance review that’s generally favorable—isn’t retaliation, even if the employee thinks he deserved a better review and more praise.

Recent case: Gary worked for the IRS as an international examiner. He handled a very complex case that he believed should have made him eligible for a promotion. When a black woman was promoted, Gary filed an EEOC complaint.

Shortly afterward, he received a very good performance appraisal that rated him highly for his work on the complex case. In fact, the total score was the highest Gary had ever received in his IRS career.

Nevertheless, he sued, alleging retaliation. He said he deserved even more praise, especially in his narrative section his supervisor prepared.

The court said he had no retaliation case. Retaliation cannot be trivial and must involve some injury or harm. Gary may have been annoyed at not being as highly praised as he wanted, the court said that wasn’t grounds for a retaliation lawsuit. (AuBuchon v. Geithner, No. 12-3991, 8th Cir., 2014)

Final note: A poor performance review can be retaliatory in some cases. For example, a sudden poor review following a discrimination complaint might be retaliation if it follows years of positive reviews, especially if the review was tied to a pay increase, bonus or promotion opportunity. Essentially, retaliation can’t be based just on hurt pride—it has to involve something that has a material adverse effect.

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