What is an Adverse Employment Action?

Originally published by Thomas J. Crane.

What happens when an employee is subjected to harsh treatment, but that harsh treatment does not include termination, demotion or loss of pay? In Welsh v. Fort Bend ISD, 941 F.3d 818 (5th Cir. 2019), the court addressed what is an adverse personnel action. Ms. Welsh was a teacher at Fort Bend ISD. Ms. Welsh was required to undergo some training and was placed on a Performance Improvement Plan (PIP). She successfully completed the PIP. She later claimed the PIP was discriminatory.

The Fifth Circuit pointed out that a written reprimand can constitute adverse employment action, but mere criticism cannot. While other cases have held the opposite, that written reprimands cannot constitute an adverse employment action. An employment action that does not affect job duties, compensation, or benefits cannot constitute adverse personnel action. But, the court found the PIP was not a reprimand. It was an opportunity for growth. (Yes, the court really said that). The Plaintiff argued that having a PIP in her file will cause her to lose promotion opportunities later. It will act as a bar. But, she could point to no evidence of that. So, the Fifth Circuit affirmed the grant of summary judgment against her. See the decision here.

This reminds us that we always need evidence of contentions that to us seem obvious, but to a judge not so much.

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