In University of Massachusetts Dartmouth, 45 MLC 136 (March 19, 2019) Hearing Officer Kendrah Davis found that UMASS Dartmouth retaliated against Donald King (King) for engaging in protected, concerted activity including filing a grievance and trying to enforce his contractual right to take FMLA leave. One day after filing a demand to arbitrate his FMLA leave grievance, King received an evaluation with “marginal” and “unsatisfactory” ratings. In all of his prior evaluations, King had received “very good” and “outstanding” reviews. King was also subject to scrutiny by the new director. The director questioned King’s use of FMLA calling it “disgusting” and “disrespectful” to his co-workers, and told him she was not a “fan of unions.” UMASS also deviated from its own past practice of having evaluations completed by King’s direct supervisor.
The hearing officer determined UMASS retaliated against King by giving him negative evaluation ratings which disqualified him from receiving a salary increase. Although UMASS provided legitimate, non-discriminatory reasons for conducting the evaluation, the Union was able to show that but for filing of the grievance, King would not have received the negative ratings. The hearing officer based her findings on: (1) the lack of notice to King that he was in danger of receiving a negative evaluation; (2) the timing of the negative evaluation in relation to King’s FMLA grievance; (3) the Employer’s deviation from its practice for conducting evaluations; and (4) the additional scrutiny applied to King’s request for FMLA leave.
Employers must proceed with caution when evaluating an employee who has engaged in concerted activity. Do not over scrutinize. Identify and document specific concerns, and communicate to employees if they are at risk of receiving a negative evaluation. This evidence can be extremely helpful in rebutting allegations of retaliation.
