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Promotion Could Be Adverse Employment Action

Posted Tuesday, May 14, 2019 6:28 am

The U.S. District Court for the District of Hawaii, in Pratt v. State of Hawaii, Dept. of Public Safety, recently held:  (1) a promotion that set an employee up for failure could constitute an adverse employment action for purposes of retaliation; (2) a causal link can be inferred when the adverse employment action occurs just two months after the protected activity, but not when there is a nine-month lag; and (3) a negative performance evaluation can constitute an adverse employment action if the evaluation had a final or lasting consequence, such as delaying a promotion or raise.

Background

Keiron Pratt began working as a Deputy Sheriff for the State of Hawaii Department of Public Safety (“DPS”) in 2002.  In 2004, after becoming openly gay at his workplace, Pratt alleged that he was repeatedly and frequently sexually harassed by coworkers.  In 2008, Pratt filed a complaint with the Hawaii Civil Rights Commission (“HCRC”) and the Equal Employment Opportunity Commission (“EEOC”), and later sued DPS in state and federal courts.

In 2014, Pratt alleged that he was again subjected to sex discrimination, a sexually hostile work environment, and retaliation.  He again filed complaints with the HCRC and the EEOC, and sued DPS in state and federal courts.  According to Pratt, this second lawsuit was resolved in his favor pursuant to a settlement agreement in 2016.

Pratt alleged that even after the settlement, DPS continued to subject him to a sexually hostile work environment, sex discrimination, and retaliation.  According to Pratt, in December 2016, DPS took Pratt’s Sheriff’s badge away from him, which prevented him from performing his duties as a Deputy Sheriff.  On February 1, 2017, DPS demoted Pratt from Deputy Sheriff to Office Assistant in the Hawaii Paroling Authority (“HPA”).  On February 22, 2017, Pratt filed another complaint with the HCRC and EEOC (“February 2017 EEOC Charge”).  According to Pratt, in April 2017, DPS converted Pratt’s job title from Office Assistant to Parole Officer at the HPA.  In November 2017, DPS issued Pratt an unsatisfactory performance notice, giving him three months to improve, and requiring him to meet weekly with his supervisor.  Pratt initiated the latest lawsuit in December 2017.

Retaliation

To establish a claim of retaliation, Pratt had to show:  (1) he acted to protect his Title VII rights; (2) an adverse employment action was taken against him; and (3) a causal link existed between the two events.  There was no question that the first element was satisfied by Pratt’s February 2017 EEOC Charge, so the Court focused on the second and third elements.

Job Title Change

Pratt argued that his change in title from Office Assistant to Parole Officer constituted an adverse employment action.  Even though a transfer from a clerical Office Assistant position to a Parole Officer could be considered a promotion, Pratt argued that DPS purposefully placed him into a position where they knew he could not succeed.  The Court agreed that a job change that sets an employee up for failure could constitute an adverse employment action.

The Court next looked at whether a causal connection existed between the February 2017 EEOC Charge and the job title change.  Because only two months passed between the February 2017 EEOC Charge and the April 2017 title change, the Court determined that a causal link could be inferred based on temporal proximity.  Accordingly, the Court allowed Pratt’s retaliation claim to proceed based on the title change.

Unsatisfactory Performance Letter

The Court, however, did not allow Pratt’s retaliation claim to proceed based on the November 2017 unsatisfactory performance letter, which was sent nine months after the February 2017 EEOC Charge.  The nine-month lag, together with the absence of any direct or circumstantial allegation that the letter was related to the February 2017 EEOC Charge, led the Court to conclude that Pratt failed to allege how the letter could be construed as retaliation.

Sex Discrimination

Pratt’s claim for sex discrimination was also dismissed.  To state a claim for sex discrimination, Pratt had to demonstrate that (1) he belonged to a protected class; (2) he was performing according to his employer’s legitimate expectations; (3) he suffered an adverse employment action; and (4) other employees with qualification similar to him were treated more favorably.

The Court first found that Pratt failed to properly allege that similarly situated employees were treated differently than him while he was at the Sherriff’s office.  Turning to the question of whether the negative performance evaluation at HPA constituted an adverse employment action, the Court noted that not all forms of negative treatment in the workplace constitute an adverse employment action.  The inquiry is fact-specific, and the Court determined that Pratt failed to allege how the performance evaluation had a final or lasting adverse consequence, such as delaying a promotion or raise.

Takeaways

  • A promotion that sets an employee up for failure could constitute an adverse employment action for purposes of retaliation.
  • A causal link can be inferred when the adverse employment action occurs just two months after the protected activity.
  • A causal link cannot be inferred, however, when nine months have passed between the protected activity and the adverse employment action.
  • For purposes of a discrimination claim, whether a negative performance evaluation can constitute an adverse employment action is a fact-specific inquiry, but the employee needs to show that the evaluation had a final or lasting consequence, such as delaying a promotion or raise.
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