Ask The Lawyer

By Debra Roth

Q & A Session – Performance Rating

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

In 2009, I fell and broke my ankle. I had two surgeries in January 2010 and January 2011. My work fell behind due to my disability and was given no accommodation. My work load actually increased during those periods. Before my injury, I received ratings of 3 but then I was given a written Performance Improvement Plan with bad marks on data entry. I did, however, receive high marks for customer service as a continued to keep up my projects as a realty specialist and delivered a successful project to the customer even during the time I was incapacitated. My performance ratings are now at level 1 due to failure to upload into the electronic file system and keep one limited hard file.  Another realty specialist also could not keep up the hard file or upload their data. However, I was the only person to be rated for not doing so. I now have an EEO claim against my agency and a union grievance on another issue both pertaining to the discrimination. I have continued to receive reprisals and retaliation. Because of the continued reprisals and retaliations, do I have a good basis to go to the Office of Special Counsel based on the retaliation?

A:

The Office of Special Counsel deals with whistleblower reprisal and you have not described any described any whistleblowing activity. Therefore, I think either EEO or a union grievance (most likely not both) would be the best way to address your concerns.

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

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