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An Example of a Lowered Performance Review as Evidence of Discrimination


A recent employment discrimination case against Verizon demonstrates how a lowered performance rating can be sufficient to establish unlawful discrimination and/or retaliation in the workplace. This Pennsylvania case involves claims of age discrimination and FMLA retaliation which ultimately resulted in the termination of an employee as part of a purported reduction in force. The jury found for the employee and rendered a $454,000 judgment. The federal appellate court upheld the verdict.

Facts regarding employee performance review

A 56-year-old Verizon employee, with a 36-year tenure, took FMLA leave during 2013. After returning to work, she was authorized to work half-days for a few months. Three weeks after her return, she received a formal mid-year performance review. That review, which included a notation regarding her FMLA leave, was lower than her usual review rating. The “Developing” rating she received indicated that she was not meeting her objectives or expectations and needed to improve. The fact that her performance review specifically mentioned her leave time was significant.

Termination based on reduction in force

In 2014, the company went through a reduction in force. Typically, management was required to follow a formal rate-and-rank process in determining who should be laid off during a reduction in force. However, with regard to this employee, the managers manufactured a way to rate her so they could justify putting her up for termination. At the time, she was exceeding the district average in terms of her job performance. Had the managers conducted the process as they were supposed to, the employee would not have been ranked at the bottom and, therefore, chosen for termination. Instead, another younger employee who had actually been placed on a performance improvement plan would have been ranked lower than her.

The jury returned a verdict for the employee

The employee’s age discrimination and FMLA claims were brought to the jury which ultimately found in favor of the employee and awarded her approximately $450,000 in back pay, front pay, and pain and suffering damages. The appellate court upheld the verdict ruling that employers are not allowed to consider an employee’s use of FMLA leave as a negative factor when taking adverse employment actions against employees. In this case, the employee received a lower performance score based on her use of FMLA leave. That lowered score, in turn, was used as a factor in the decision to terminate her as part of the reduction in force.

With regard to her age discrimination claims, the court determined that there was sufficient evidence upon which the jury found she was terminated because of her age. Specifically, the use of the rate-and-rank protocol in deciding who to terminate during the reduction in force was not only subjectively used, but also not conducted in accordance with the company’s policy. If it had been, a much younger employee would have been terminated instead.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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