Image of Is a negative performance evaluation an actionable retaliatory action or adverse employment action?

Is a negative performance evaluation an actionable retaliatory action or adverse employment action?

Courts have held that where performance improvement plans and negative performance reviews precede an eventual termination, they may constitute adverse actions.  See, e.g., Winston v. Verizon Servs. Corp., 633 F.Supp.2d 42, 51 (S.D.N.Y. 2009); see also McBroom v. Barnes & Noble Booksellers, Inc., 747 F.Supp.2d 906, (N.D. Ohio 2010) (citing cases and finding “evidence in the record that the negative appraisals and performance plans supplied the necessary foundation for Plaintiff’s eventual separation” sufficient to constitute adverse actions).

“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. 2011) (internal quotation marks omitted).

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. 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. 2004) (citations and internal quotation marks omitted).

When a pattern of discriminatory conduct is alleged, specific individual acts should be viewed as a whole, rather than as isolated incidents.  See, Ross v. Douglas Cnty., 234 F.3d 391, 397 (8th Cir. 2000). 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.  Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1998).  State and federal courts recognize that “adverse employment actions” include actions short of those causing economic disadvantage.  The United States Supreme Court has recognized that “adverse actions” are not limited to those actions which are economic or tangible.  See, Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998).

 

Maryland Washington DC Virginia Employment Lawyers

best sexual harassment attorneys Washington DC Maryland VirginiaHiring a proven and effective advocate is critical to obtaining the maximum recovery in a discrimination case.  Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.  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.  And his experience as a public defender enables him to feel at home in any courtroom and communicate effectively with the jury.

Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.  As editor of the Glass Ceiling Discrimination blog, Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues.

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.  Contact us today to find out how we can help you.  To schedule a preliminary consultation, click here or call us at (202) 769-1681.

Avatar of Jason Zuckerman

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. 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.