Mary-Kathryn Zachary
08/01/2000
Supervision
Page 23-26
Copyright (c) 2000 Bell & Howell Information and Learning Company. All rights reserved. Copyright National Research Bureau Aug 2000

There is no question evaluating employee performance can be an uncomfortable workplace experience. Supervisors can reasonably expect some evaluations will give rise to hurt feelings, defensive reactions and arguments. They may also give rise to lawsuits. The following discussion illustrates ways in which performance evaluations may trigger lawsuits and highlights two recent cases in which such evaluations were a central part of the litigation.

The types of lawsuits resulting from performance evaluations are many and varied. For example, slander and libel suits may result from untrue statements made in a performance evaluation that are conveyed to third parties, such as co-workers or individuals in the community. While a supervisor might want to, or even be required to, discuss impending or completed evaluations with appropriate company management, the' supervisor should be careful not to communicate the contents over broadly, such as to fellow employees without a need to know and to those outside the company. Additionally, any information contained in the evaluation should be factual.

Other lawsuits might allege that the supervisor engaged in intentional infliction of emotional distress by the content or nature of the evaluation, triggered a wrongful discharge of the individual, used the evaluation to retaliate against the employee for something unrelated to the performance being evaluated, or violated one fo the anti-discrimination laws. With respect to the anti-discrimination laws, suits based on performance evaluation have been filed under state statutes, under Title VII of the Civil Rights Act of 1964 (alleging discrimination based on race, color, religion, sex or national origin), the Americans with Disabilities Act (alleging discrimination based on disability,) the Age Discrimination in Employment Act (alleging discrimination based on age) and Section 1981 of the Civil Rights Act of 1866 (alleging discrimination based on race in the making of contracts).

Of interest is the fact that supervisors can trigger litigation both by saying too little and by saying too much with respect to performance evaluations. For example, an employer was sued and held liable for giving a black employee good performance reviews but never advancing her within the company. The employee concluded the company was engaged in unlawful race discrimination by not promoting her despite her good performance. In reality, the company valued the employee and wanted to keep her happy. Her supervisor gave her good performance reviews, even though she needed improvement in areas, in order to avoid litigation. Unfortunately, the effect of that strategy was to keep her from learning the things she needed to change to progress within the company and resulted in litigation anyway.

Another example was a recent case in which a black employee was sharply criticized in her performance evaluation and subsequently terminated. The employee maintained her supervisor was discriminating against her on the basis of race in violation of state law and Section 1981 of the Civil Rights Act of 1866. In support of her claims, the employee contended that she and her supervisor had a strained relationship that was unlike the relationships between the supervisor and white employees. Among other things, she accused the supervisor of the following: not adequately informing her of her responsibilities; giving her instructions on bits of paper; criticizing or laughing at her in meetings and in other contexts; failing to acknowledge her input or praise her publicly; informing her she was not a team player; telling her she was not of the caliber to be a company manager; treating her work differently from that submitted by white employees; and omitting her from a gift list.

The source of most of the employee's complaints was the supervisor's evaluation of her job performance, specifically one year's detailed performance appraisal in which the employee was rated below target in several areas and received negative comments even in satisfactory areas. Some of the employee's concerns were directed to the specific criticisms and some to what she characterized as feedback that was too general to be useful. A month after that performance appraisal , a meeting was held between the employee, her supervisor and the human resources director for a performance review. The employee's performance, her conflicts with the supervisor and other possible employment opportunities were discussed. The following month the employee was terminated.

The employee subsequently sued, claiming she was the victim of race discrimination and a hostile work environment, that she was wrongfully discharged because of her race and/or in retaliation for her complaints about race discrimination, and that the supervisor engaged in intentional and negligent infliction of emotional distress. The company argued the employee was terminated for performance-related reasons in that she performed poorly in her job and did not improve after receiving specific negative feedback. It stated there were no other jobs available for which she was suited. The district court dismissed all of the employee's claims. The appellate court affirmed.

In addressing the employee's contention that she performed her job well, the appellate court noted its job as a court was not to determine whether a reason given by the company for termination (here, poor job performance) was wise, fair, or even correct - it just had to be the actual reason for the discharge. The employee had not convinced the court the reasons for her discharge were not the real ones. For example, the employee did not offer any evidence her supervisor actually believed the employee's performance was good. All of the evidence submitted by the employee, in particular, the employee's performance evaluation, indicated the supervisor actually did not believe tie employee's performance was good. Rather than produce evidence that showed the supervisor's assessment was dishonest or not the true reason for her termination, as required by law, the employee only disputed the merits of the evaluation.

With respect to the other allegations made by the plaintiff, the court dismissed them as the types of disagreement and misunderstandings that are ordinary occurrences for a workplace, not indications of racial animosity. To have prevailed, the employee would have had to convince the court the reason for the employee's alleged treatment was race discrimination, not differing beliefs about performance quality. Although the employee argued the supervisor did not treat white employees in the same manner, the court did not believe any differential treatment was due to race as opposed to the supervisor's views with respect to the employee's performance. The court viewed the employee's accusations of racial motivation as mere "speculation." Rather, the court viewed the conflict as related to differences of opinion, and stated "no court sits to arbitrate mere differences of opinion between employees and their supervisors."

The employee's claims with respect to a racially hostile environment failed for the same reasons. In addition to the earlier discussed allegations, the employee stated she received inadequate coaching, had to repeat work, was unreasonably required to work late and was denied work opportunities given to other managers. However, again, she could not convince the court any, such complaints were racial in nature. Even if the supervisor did not like the employee, and such dislike made the employee's work life more difficult, the court stated employers are not required to like their employees. Any questions about the supervisor's management style and practices, without proof of racial discrimination, were for the company to deal with, not the courts.

The court acknowledged the evidence suggested the supervisor was tough and demanding, and her criticism of the employee may have been blunt and at times unfair. However, such problems occur routinely at work, are inevitable and are not always due to unlawful discrimination. To hold otherwise, the court noted, would mean supervisors could not evaluate employees of another race without the prospect of a lawsuit, even though suchevaluation is necessary for the effective functioning of a company. The dilemma faced by a supervisor in such a situation was apparent to the court. Insufficient criticism leads to charges of insufficient feedback. Too much criticism leads to charges of discriminatory harassment. Either way, the supervisor may be hauled into court, as was the situation in the case before the court. In fact, the employee complained of both insufficient and excessive feedback. In the court's mind, the dispute was nothing more than a routine difference of opinion and personality conflict, and not racial discrimination. Hawkins v. Pepsico, Inc., 81 FEP Cases 1670 (4th Cir. 2000).

Another recent case also dealt with a critical performance evaluation. On an employee's first day back at work from a six week psychiatric leave, despite his tearful requests that a performance evaluation be postponed, he was given a 20 minute negative oral review by his supervisor accompanied by a 20 page written evaluation criticizing his performance for the three months prior to the leave. As a result of the performance evaluation, the employee suffered a nervous breakdown. He sued for intentional infliction of emotional distress and disability discrimination under the ADA. The defendant was granted summary judgment by the lower court. The emotional distress claim was appealed, and the appellate court upheld the trial court. In doing so, the court found that giving a performance evaluation is a customary, expected business practice and does not rise to extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress, even if the evaluation is negative. Jarrard v. United Parcel Service, Inc., No. A99A1871 (Ga. Ct. App. Jan. 25, 2000).

In the above cases, the company, and the individual supervisor, were sued because of sharply critical performance evaluations. They suffered no liability because of the courts' perceptions that these were routine performance evaluations that are customary in the business world and may sometimes by unpleasant. In neither instance was the employee able to show that the negative evaluations were motivated by unlawful discrimination or the intent to inflict emotional distress. Had the employees been able to show such motivation, the outcome would have been different. Of particular concern to courts is a pattern of negative performance reviews adversely affecting a protected class.

As noted earlier, a company, and an individual supervisor, may also bace liability because of overly positive evaluations. Sometimes the supervisor genuinely likes the employee and doesn't want to upset him or her. Other times, the supervisor doesn't want to deal with confrontation. If the company later decides to terminate an employee for poor performance, its task is difficult. The employee will immediately point to the prior good evaluations and question the motivations of the company. Another situation with respect to performance evaluations that may lead to litigation is one in which a supervisor is "building a case" against an employee. In this situation, the supervisor is aware of the need to document poor performance. However, the superivosr concentrates only on the poor performance of that individual and ignorres similar misconduct by other employees. The disparate treatment will later come bace to haunt the supervisor and the company as it may be used to support the employee's argument of unlawful discrimination. Additionally, problems may occur with performance evaluations because of the natural human tendency to remember most clearly the more recent events. Therefore, the most recent events tend to be the ones most reflected in performance evaluations. They may not be the most accurate reflection of performance over the entire evaluation period. Finally, the supervisor's attitude during a performance evaluation may be an important factor in whether or not litigation will result. Even though the courts in the two cases discussed in this article ultimately ruled in favor of the companies and the supervisors with respect to the unlawfulness of the conduct, the time, money, morale, and public relations issues accompanying litigation are still a significant cost. In the first case, the court noted the supervisor was blunt and perhaps unfair. In the second, the supervisor persisted with an evaluation despite the tears of a newly returned employee. It is possible a different su-' pervisory approach might have avoided dealing with a lawsuitat all.

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IN A NUTSHELL

1) Performance evaluations can lead to lawsuits under state and federal antidiscrimination laws, as well as state tort theories, such as intentional infliction of emotional distress and defamation.

2) Liability can result both from overly positive evaluations and from overly negative evaluations, as well as from saying both too much and too little.

3) In conducting a performance evaluation, a supervisor should be careful to make sure any factual statements made are true, and information related to the evaluation be given only to those with a need to know.

4) Supervisors should take care to make notes throught the evaluation period for a more equitable assessment of the period in question and should take care to treat employees in the same manner with respect to documentation.

5) The most liability results from evidence of a pattern of performance evaluation that adversely affects those in a protected class and from evidence of intentional wrongdoing with respect to performance evaluations.