Employee’s Own Perception of Her Performance Is Not Determinative, and What Is An Adverse Employment Action, Anyway?

The U.S. Court of Appeals for the Fifth Circuit reaffirmed the principle that an employee’s subjective perception of her own performance does not support a discrimination claim, while also providing guidance on the types of actions that are or are not adverse employment actions necessary to establish a discrimination claim.

In Price v. Wheeler, the employee claimed race discrimination and harassment, in part because she received a rating of “fully successful” rather than the “outstanding” that she thought she deserved. The Fifth Circuit, however, noted that “her subjective belief about her own performance is insufficient to demonstrate that her supervisor had a discriminatory motive in assigning her a lower rating.” Thus, this affirms that it is the employer’s – not the employee’s – view of the employee’s performance that is relevant.

Also of interest to employers, the case provides many examples of the types of actions that do not constitute adverse employment actions. Under Title VII, an adverse employment action, which is defined as an “ultimate employment decision, such as hiring, granting leave, discharging, promoting, or compensating,” is required in order to sustain a discrimination claim. In this case, the employee asserted a number of negative actions, but the Fifth Circuit found the following did not rise to the level of an adverse employment action: administrative matters (such as failing to provide a necessary format for a particular task, removing documents, failing to sign a document, failing to meet), the occasional assignment of administrative tasks outside the normal job description, oral reprimands, performance evaluations, presentation opportunities, employee awards, the temporary revocation of telework privileges, and the denial of a single leave request. On the other hand, a suspension without pay is an adverse employment action.