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Before approving discipline, check last review

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in Discrimination and Harassment,Human Resources

When a supervisor recommends discipline or anything else that could be viewed as an adverse employment action, be sure to check the employee’s latest evaluation before you approve it. If what the boss says is currently going on appears inconsistent with the evaluation, find out why. Then make an independent decision.

Recent case: Eva worked as a special agent for the U.S. Drug Enforcement Administration. She requested assignment to the Virgin Islands office when an opening occurred.

Agents on assignment sign agreements that define the length of the placement. Then they need their supervisor’s recommendation to continue that assignment. An extension is worth an additional 20 days of paid leave in the agent’s home location.

Eva got the island assignment. When her assignment was nearing an end, she asked her supervisor to recommend an additional year. That would have earned her the additional leave, plus continued payment of a cost-of-living adjustment. (Agents assigned to the Virgin Islands receive extra pay to cover higher expenses associated with living on a Caribbean island.)

But Eva’s supervisor didn’t recommend the extension. In fact, he sent his supervisor a memo outlining 25 problems with Eva’s performance. Eva wound up accepting a transfer to Florida.

Then she sued, alleging sex discrimination.

As part of her claim, she pointed out that the same supervisor who had just criticized her performance had praised her profusely in her most recent evaluation.

In fact, some of the praise he heaped on her was for work he now called substandard.

The court said the evaluation was potential evidence that the supervisor’s later criticisms were discriminatory. Her case will go trial. (Sala v. Hawk, No. 10-3268, 3rd Cir., 2012)

Final note: The court decided that losing out on additional leave and no longer receiving the pay adjustment counted as adverse employment actions.

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