Can a Performance Evaluation Constitute Retaliation?

An adverse employment action, as a prerequisite for a viable retaliation claim, does not have to be an ultimate employment decision—such as termination or demotion. The alleged retaliatory conduct need only have been such that it may have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.53, 68 (2006).  If this standard is met, then the conduct by the employer is “materially adverse” and will support a retaliation claim.

The factors a court can consider in determining whether the employer’s actions were materially adverse are:

• the effect the act had on the employee’s prestige;

• the effect the act had on the employee’s opportunity for advancement;

• the effect the act had on the employee’s pay;

• the effect on the employee’s core job duties;

• the effect on the employee’s ability to obtain outside employment.

The court, in Metropolitan Transit Authority of Harris County v. Douglas, 2018 WL 1057629 (Tex. App.—Houston 2018), considered whether an employee’s performance evaluation could constitute “materially adverse” conduct to support a retaliation claim.  Because whether or not conduct by the employer is “materially adverse” is a fact specific inquiry, the court looked at the factual circumstances surround the poor performance evaluation.  The court took the facts alleged by the employee as true because the employer was asking that the employee’s retaliation claim be dismissed by reason of failing to state a prima facie case.

Taking the facts alleged by the employee as true, the court noted that the employee’s performance evaluation was lowered at the request of her supervisor shortly after she filed her discrimination complaint.  Her performance evaluation was lowered from “distinguished” to the lower than any of her six peers.  Her lowered performance evaluation was inconsistent with her performance evaluations for the three previous years.  Not only did having the lowest performance evaluation among her peers lower her prestige, but it reduced her opportunities for advancement because performance evaluations are an important factor in determining which employees are given opportunities for advancement.

Based on these factors, the court concluded that the lowered performance evaluation “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Accordingly, the employer’s motion to dismiss was denied.

This case serves as a reminder to employers that a performance evaluation has the potential to give rise to a retaliation claim.  In the aftermath of an employee making or supporting a claim of discrimination, performance evaluations for the employee should be scrupulously objective.  If the employee, who was previously consistently given good performance evaluations, is given a poor evaluation, the employer should have a persuasive explanation with objective evidence to support the explanation.

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