Performance Appraisals - Some Recent Survey Data

Performance appraisals are a constant source of legally related issues, and now comes a consultant with survey data raising questions as to how effective they are. Although the headline,Little value to employee reviews, survey finds from the Seattle Times seems a little overstated, there is no question the problems discussed in the article are real. Starting with the lack of supervisory candor.

Just At the Lawsuit Stage, But Employee Challenges Management Proselytizing

In this case not only for a religious view of the world, but for a Baptist one. The Lakeland, Florida Ledger has the story, Lawsuit Alleges Religious Coercion.

One More Confusing Factor: State Law and the New Part 541 Regulations

I have mentioned several times the confusion caused by the political battles over the Department of Labor's attempt to modernize the regulations which govern the so called white collar exemptions to the wage and hour law. But as if that weren't enough, the AP story this weekend points out yet another layer, the interaction with existing state law. Illinois voted even before the final regulations were published to ignore them. But another 17 states have existing laws which will not be automatically supplanted by whatever version emerges from the Washington political wars. The Las Vegas SUN headline sums it up, New Overtime Changes Spark Confusion and the story lists the states which will stay in flux no matter what finally happens in Washington. Fortunately, Texas is not one. All we have to do is understand the new regulations and any accompanying legislation and have a crystal ball for prognosticating what will ultimately happen on the legislative scene.

Who Says The IRS Is Never Fun and Games?

It may be a more exciting place than I would ever have thought given the one piece of evidence that a white male provided to bolster his claim of reverse discrimination, required for such a claim in the 7th Circuit. His evidence,

at a training exercise early in his term of employment with the IRS, two female employees climbed onto a government vehicle, danced on top of it and proceeded to “moon” the audience, yet were not disciplined.

Without commenting on such a sight, the Court merely noted it failed to see how such evidence showed the IRS favored minorities or women in its employment practices.Katerinos v. U.S. Dept. of Treasury (7th Cir. 5/12/04).

Famous Last Words - "I Don't Think I Will Have Any Trouble Proving...."

In this case, the rest of the sentence was "that a lady with one hand is disabled," but as any experienced trial lawyer knows, almost anything can prove a stumbling block at trial. Here, a jury verdict for Caterpillar is affirmed when the quoted lawyer was unable to prove that a one handed lady was disabled and could operate a high speed scanner at the employer's required productivity level. Hoffman v. Caterpillar, Inc. (7th Cir. 5/11/04). Here the real key was an in court showing of a videotape of the plaintiff operating the equipment, a showing which not only convinced the jury that she could not meet the standard, but also made the exclusion of her expert who would have said she could, irrelevant.

4th Cir. Explores Parameters of "Adverse Employment Action" In Assignment Case

As discrimination claims become more nuanced, one of the more frequent battlegrounds is whether an employer's decision is an "adverse employment action" sufficient to merit Title VII protection. Anyone who has any familiarity with corporations and the politics that are often played in those organizations, know that assignments that may appear similar in some respects may have substantially different impacts on the upward mobility of one's career. That certainly is what the plaintiff, who was heading a large contract with the Washington Metro for his employer thought when he was reassigned to a marketing and business development position and relieved of his managerial duties on the Metro project.



Resigning a month later he sued for racial discrimination. In granting summary judgment the district court found:

There was no demotion. There was a transfer of responsibilities. The man’s salary was not affected. He received his bonus. He still had professional-level work. He was still, if he wanted to be, on track for promotion. There simply is not in this record the adverse action that would satisfy that element.

In affirming the Court noted the obligation to balance the need for protection against discrimination with the need to make sure that a possible lawsuit did not hang over an employer's head on every employment decision. A balance it found the district court properly struck. James v. Booz Allen & Hamilton, Inc. (4th Cir. 5/14/04) [pdf]. A strong argument can be made that federal courts and discrimination litigation are not calibrated finely enough to be an effective tool for resolving such questions. The question does remain -- what is the best way to address legitimate questions concerning discrimination where decisions are of necessity more subjective.

Unusual Twists - But Still A $1.3 Million Verdict for San Diego Detective

The headline from The San Diego Tribune site gives the outcome, $1.3 million awarded in bias case, but the story itself is even more interesting. The basic claim of the undercover detective Felipe Arroyo was that he was given more work because of his ability to speak Spanish. He converted that to a discrimination claim based on national origin. When he filed a formal complaint, two weeks after a failed mediation, he was reassigned closer to home, which he said was retaliatory because it made his undercover work more dangerous. After three hours of deliberations, the jury agreed with his position, awarding $425,000 on his discrimination claim and more than doubling that amount with a $900,000 award for retaliation. The San Diego Police Department's position was that he was a cop and being a cop is a dangerous business. Obviously, not an argument that sat well with this jury.