Negative Performance Review Not an Adverse Action - COTW #74

Lawsuits generally require damages. Employment discrimination lawsuits generally require a very specific type of damages, beginning with the "adverse employment action." This employment law Case of the Week provides some great analysis of whether and when a negative performance review can satisfy that "adverse employment action" requirement.

OK, you probably already read the headline of this post. But, it's actually a little more complicated than that. Eastern District of Pennsylvania, take it away:

Plaintiff also argues that he received lower performance ratings because of defendant's alleged discrimination, and that these lower performance ratings constitute adverse employment actions. The Court of Appeals has previously held that when a negative performance evaluation is accompanied by an increase in pay, the evaluation is not, by itself, an adverse employment action. Tucker v. Merck, 131 Fed. App'x at 857 (affirming district court's finding of no adverse action when plaintiff presented no evidence that negative evaluations impacted plaintiff's compensation); Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (failing to find adverse employment action, despite negative evaluations, because plaintiff “was not demoted in title, did not have his work schedule changed, was not reassigned to a different position or location ..., did not have his hours or work changed or altered in any way, and ... was not denied any pay raise or promotion as a result of these reprimands”). Even a negative evaluation that results in a less than expected wage increase is not per se an adverse employment action. Equal Emp't Opportunity Comm'n v. Wyeth Pharm., 2004 WL 503417, at *2 n. 3 (E.D. Pa. March 11, 2004). Therefore, because of the clear precedent within this circuit, plaintiff's negative performance evaluations are not adverse employment actions.

Raffaele v. Potter, 2012 WL 33035 (E.D. Pa. Jan. 6, 2012). So, the negative review itself is not an adverse employment action - but keep an eye out for pay decrease, demotions, changes in schedule, and other changes to "terms and conditions of employment." <- Legal catchphrase! 

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.