Review tied to lesser raise is adverse action

Gillis v. Georgia Department of Corrections, 11th Cir., No. 04-11014, Feb. 18, 2005.

An evaluation that directly prevents an employee from receiving a significant raise is an adverse employment action under Title VII of the Civil Rights Act of 1964, the 11th U.S. Circuit Court of Appeals has held.

The Georgia Department of Corrections used a uniform evaluation process by which every employee was given one of three overall ratings--"did not meet expectations," "met expectations" or "exceeded expectations"--that automatically determined the amount of each employee's salary increase.

Thalia Gillis, a black woman, had worked for the department since 1987. Under the department's evaluation system, Gillis received an "exceeded expectations" rating only once, in 1995.

In 2000, Gillis' supervisors, Alvina Chance and Nan Duffey, gave Gillis a "met expectations" rating on her evaluation. Chance allegedly told Gillis that no matter what she did on the job, she would never receive an "exceeded expectations" rating. Duffey and Chance gave only two employees "exceeded expectations" ratings that year, both of whom were white.

Based on these events, and on Duffey's use of the word "nigger" to refer to Gillis after she filed an internal grievance, Gillis sued the department for race discrimination. Gillis alleged that she was denied the "exceeded expectations" rating because she was black, and, as a result, her raise was 2 percent smaller than it otherwise would have been.

The district court held that Gillis' evaluation could not be considered "adverse" because it was not negative (she "met expectations") and Gillis was not penalized (she received a raise). Therefore, the district court granted the department's motion for summary judgment.

On appeal, the 11th Circuit found that Gillis' evaluation and Gillis' compensation were "inextricably intertwined." If "actions that affect compensation" are adverse employment actions, the court reasoned, so is an evaluation that "directly disentitles" an employee to a certain raise. That was the case here, the 11th Circuit concluded, so Gillis' case should go forward.

RELATED ARTICLE: Professional Pointer

Increases should not be automatic, based only on an employee's evaluation rating. Employers should maintain a written policy making raises non-obligatory and based on the totality of circumstances. Keep in mind, however, that nothing substitutes for the careful consideration of whether disparities in proposed salary increases are justified by legitimate and demonstrably nondiscriminatory reasons.

BY JOHN A. BERG, AN ATTORNEY WITH THE FIRM OF CONNELLY SHEEHAN HARRIS IN CHICAGO, AN AFFILIATE OF WORKLAW NETWORK.

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