In today’s politically correct environment employee feedback has become a challenging proposition for managers. Having a tough conversation is even more difficult when the employee is not receptive and thinks he has done no wrong. At performance review time, the wrong words and/or intonation could lead to a lawsuit.
In the case of Cassandra Ballard-Carter, she worked for Vanguard Group in Pennsylvania starting as a processing associate in 1996. In 2007 she became a client relationship administrator (CRA). Ballard-Carter was responsible for running a client retirement plans on a day-to-day basis. As a CRA she also partnered with Client Relationship Managers (CRM) in the execution of client services needs. She also worked directly with clients on operational issues, service adoptions and plan enhancements. Ballard-Carter reported to a Client Administration Manager (CAM) who then reported to the CRM who is responsible for the overall client relationship.
To be a successful CRA client relationship management skills, excellent verbal and written communication skills, and the ability to exercise good judgment in decision making is necessary. However, for Ballard-Carter, her communication skills were not as good as expected. Her manager stated that there were issues with her spelling and grammar and that she would become defensive when he attempted to talk with her about it. “I tried to deliver [feedback regarding her communication skills] in one of those one-on-one sessions, and Cassie [Ballard-Carter] essentially said to me she didn’t want to talk about it . . . she would at times leave the room or at other times she would just refuse to meet with me.”
Ballard-Carter was transferred to a new CRM in 2011, who wanted to know more about her and asked her former managers about her performance. The CRM was told about Ballard-Carter’s weakness with communication and presentation skills and was warned about her grammar and spelling. Ballard-Carter’s new CRM then had a discussion with her about performance expectations and requirements, especially writing and presentation skills, and opportunities to improve. Ballard-Carter became defensive, realizing immediately that the feedback had to have come from her old CRM, and stated that she felt she was working in a “hostile work environment because people were talking about her behind her back.”
In early 2013 Ballard-Carter self-diagnosed hearing issues and dyslexia and underwent a hearing examination. She was diagnosed as having moderate hearing loss in her left ear and severe hearing loss in her right. She was never diagnosed, however, as being "deaf," or even "partially deaf," nor was Ballard-Carter ever diagnosed as being dyslexic. She thought she was dyslexic because she experienced difficulty with her "ability to think." She did not believe that her manager was sufficiently sympathetic to her conditions.
During 2013 Ballard-Carter filed two complaints against her supervisor, which Vanguard investigated. One, however, was made anonymously through the employee hotline. Neither investigation yielded her desired results with a finding of harassment.
In 2013 a number of clients complained about Ballard-Carter, and her manager discussed it with her. In early 2014, Ballard-Carter received her performance review for 2013. She received a rating of “Further Development Needed”—one step below her 2012 performance review rating of “Fully Successful” and one step above the lowest rating of “Did Not Meet Expectations.” There were three “areas of development” that she was asked to improve upon during her 2013 mid-year evaluation, including “written communication as well as presentation of data back to the client” and “how [she] respond[s] to developmental feedback.” These issues were again her developmental issues for 2014.
Ballard-Carter then went on medical leave for hip issues and failed to return. In September 2015, she filed a lawsuit against Vanguard for disability discrimination and for harassment under the ADA. After discovery, Vanguard filed a motion for summary judgement which the trial court granted.
First, the court stated that a hostile work environment claim under the ADA requires “a showing that: (1) [the plaintiff] is a qualified individual with a disability under the ADA; (2) she was subject to unwelcome harassment; (3) the harassment was based on her disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) that [the employer] knew or should have known of the harassment and failed to take prompt effective remedial action.”
The trial court found that the behavior and statements complained of by Ballard-Carter were not harassment. The trial court pointed out that her supervisor was trying to help her improve performance and was not trying to terminate or implement any adverse employment action. The performance was clear, and Ballard-Carter refused to accept responsibility for her short-comings. Her inability to accept criticism did not equate to an environment of harassment. Her claim was dismissed.
The takeaway for HR managers is that employees are becoming more sensitive and creative in expressing their displeasure with negative feedback. HR needs to train managers how to have difficult conversations and how to express themselves in a way that is a positive employee experience, even though negative feedback is involved. Employee expectations should also be established for performance feedback.
Sources: Carter v. Vanguard Group, No. 15-05370 (Eastern District of Pennsylvania, 7/26/16), The Legal Intelligencer 8/9/16