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Is it Difficult to Challenge a Poor Performance Evaluation from my Employer?


In nearly every employment discrimination case, the defendant employer alleges that the employee filing the lawsuit engaged in some type of conduct that led to the discipline or termination of which they now complain. Indeed, it is most often the employer's only defense. Defending against those allegations by your employer can be tough, especially when the issue is a negative performance evaluation.

Subjectivity of performance evaluations

Unfortunately, the statements and ratings made in performance evaluations can be highly subjective. What one supervisor may see as poor performance may not be viewed that way by another supervisor. Since employment discrimination law does not allow the courts or the jury to substitute their judgment for that of the employer, it is difficult - if not impossible - to show that the negative ratings are false.

The plaintiff disagreeing with the employer's assessment of their performance is simply not enough. A case out of New York demonstrates how difficult this type of employment discrimination case can be.

Davies v. New York City Department of Education

Naomi Davies was a tenured school teacher, employed by the New York City Department of Education. She had been employed as such for more than 20 years, and she claimed to have a "sterling performance record" during that time. She alleged in her lawsuit that, after taking FMLA leave, her teaching performance began to be unfairly evaluated. This, she claimed, was retaliation for taking FMLA leave.

Her supposedly "spotless" performance up until the point she took FMLA leave, however, is insufficient to establish retaliation. The Department alleged that she began receiving complaints from students and other teachers about her unsatisfactory performance for several months. Unless Davies could show that those complaints and resulting poor evaluations were false, her case would not be successful. The problem with her claim, as the Court of Appeals described it, was as follows:

"Davies does not challenge the substance of the unsatisfactory evaluations. Instead, she claims that for the past twenty years she has had a sterling performance record and the EBA's timing and close scrutiny of her performance is circumstantial evidence that the EBA was deliberately developing a case against her."

Courts are usually very hesitant to doubt job evaluations. That is especially true in a case where the job at issue requires specialized knowledge, such as education.

What does this mean?

Essentially, an employee cannot use his or her excellent past performance as a shield against subsequent unsatisfactory performance evaluations. Regarding the timing of her negative reviews, which was another argument she made for retaliation, the law clearly states that temporal proximity between protected activity and an adverse employment action, alone, is insufficient to establish a claim.

So what does this mean for plaintiffs in employment cases? It means that the existence of any negative performance evaluations should be addressed early on, between attorney and client. The reality is, courts will agree with employers that contemporaneous performance reviews are generally the best measure of an employee's performance. So, if there are negative reviews, they must be dealt with.

If you have received negative performance evaluations, and suspect it may be retaliatory, or if you have questions regarding your employment rights, please contact our firm either online or by calling us at (205) 265-1880.

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