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December 21, 2012

HR Fact Friday: Retaliation or Poor Performance

Filed under: Performance Management10:28 am

A director for student financial aid at a Texas university complained to an outside auditor about nonexempt workers being deprived of their comp time and/or vacation time and offered a range of other concerns. She was fired after making these complaints, which she believed was retaliation. However as you will read, a well documented performance review was a key piece of evidence in the ensuing litigation which; in part ended up carrying the day for the employer.

What happened. “Samantha” spent 17 years in financial aid at Texas A&M University–Corpus Christi before heading up the office of financial aid and scholarships at Texas A&M University–Commerce, or TAMUC, in March of 2006. When an outside auditor visited for an annual review in November 2008, she asked whether Samantha had any concerns, which opened the floodgates.

In part, Samantha had a problem with TAMUC’s policy of awarding comp time rather than overtime to nonexempt employees (a practice that’s permitted to public employers) but requiring them to use it all before using their paid vacation, which expired at the end of every year. Other concerns included an alleged failure to “draw down” allotted federal funds and prepare monthly reconciliations for them.

The auditor duly reported all issues up the chain of command, including TAMUC’s president. At no time, however, did either Samantha or the auditor state that the comp time issue violated the Fair Labor Standards Act (FLSA), a claim Samantha later made in court.

She received a positive evaluation and a raise in May 2009. But in September, she was counseled to create a training manual and to spend more time with other subordinates rather than only with her favorite one. In early December, one of the subordinates who complained she’d been shunned also charged that department members were still not being trained and that Samantha tended to “lash out” at people. Management decided to fire her, and she sued.

She charged violation of FLSA and of the Texas Whistleblower Act, claiming that managers had treated her very coldly after her complaints to the outside auditor. A judge in federal district court ruled entirely in TAMUC’s favor, and Samantha appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.

What the court said. Because Samantha was simply doing her job by reporting her concerns to the auditor, appellate judges agreed that she had not blown any whistles and that the university had not retaliated against her. Lasater v. TAMUC, U.S. Court of Appeals for the 5th Circuit, No. 11-11068 (2012).

Point to remember: To judges, Samantha’s positive evaluation and raise didn’t look at all like retaliation.



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