Supervisors and employees, alike, may dread the annual evaluation process. The apprehension and resistance associated with completing evaluations manifests in the numbers. The Human Resources Division of the Ohio Department of Administrative Services (ODAS) tracks the completion of evaluations from 23 state agencies on a quarterly basis. Roughly 83 percent of evaluations were completed last quarter, although only 63 percent were completed on time. Yet the Ohio Administrative Code requires the evaluation of classified employees.¹ Even setting the Code aside, these numbers are troubling because evaluations are not only a key management tool, they are extremely helpful, if done correctly, in litigation.

As a management tool, employee evaluations are essential to securing high-level performance. ODAS promulgated the Ohio Performance Review System (OPRS) Manual as well as evaluation forms for different classifications. The manual and the forms are a valuable resource. The manual offers step-by-step instructions on how to move through the evaluation process, which is supposed to be a year round endeavor, not just an annual event. The manual also teaches supervisors how to set goals and objectives with the employee, and even offers comparative examples of well-written and poorly-written goals.

Ideally, in the evaluation the supervisor acknowledges accomplishments, identifies future expectations and provides the employee with a view of his or her role in reaching the over-arching mission of the agency or department. Generally, performance deficiencies, even minor ones, should not be addressed for the first time in a performance evaluation. Annual evaluations also should never be a substitute for placing an employee on a Performance Improvement Plan, which is generally much more detailed and often provides a schedule for regular management feedback.

Complete, accurate employee evaluations such as those in the ODAS format, can be valuable sources of evidence in litigation. For example, the evaluation format urged by ODAS does not rely upon a mere numerical ranking. A narrative format, like that promulgated by ODAS, is advantageous because even when there are clearly defined criteria for what distinguishes a “one” from a “two” in a performance category, the decision to rank an employee a “one” may be subjective in part. Also, remembering, years later in a lawsuit, what the factual basis was for rating, for example, a female a “1,” and rating a male a “2,” in the same performance category, is sometimes tricky. The structure of the OPRS forms avoids this situation, and puts the supervisor in the position of identifying concrete examples where an employee’s performance has fallen short or exceeded expectations, using previously established goals and measurements. The OPRS Manual explains that when an employee fails to meet a goal, the employer should instruct the employee about what steps are required to achieve compliance. Having this performance history at the ready when litigation commences is a tremendous boon.

Evaluations of employees with Family Medical Leave Act (FMLA) certifications deserve special mention. Supervisors must be careful to measure the performance of these employees based upon time worked. So, if the employee worked for a total of nine months, the evaluation cannot be based on the goals for a twelve month period. The question supervisors should ask is: “Did the employee perform his job well when he was working?” If the answer is “no,” the evaluation should specifically identify how the performance was inadequate. Comments in evaluations of employees with FMLA certifications also require care. Even language that appears to be considerate can be problematic: “Understandably, Jane’s care of her son over these past few months has taken her away from the office and made it difficult for her to process her typical high level of claims.” This example, while clearly sympathetic, still suggests that Jane has fallen below her supervisor’s now inappropriate expectations, which the employee might claim is interference with the employee’s rights under the FMLA.

In the private sector, where evaluations are frequently the means to a pay raise, the receipt of a bad evaluation may be considered evidence of discrimination or retaliation. For Ohio civil servants, this is not generally true. DAS had aspirations, in 2000, to use evaluations as a basis for merit step-increases. However, former Step 7—the merit step—was eliminated from the Ohio Revised Code in 2004 by Senate Bill 189, and since that time annual evaluations rarely affect an employee financially.² Seldom are evaluations of public civil servants formally consulted when an employee applies for a promotion. As a result, claims that an evaluation prevented an employee from receiving a promotion or a raise in pay are not as prevalent as in private sector employment. Thus, evaluations factor largely in federal cases involving a public employee who has been probationarily removed, or where the employee is claiming that a bad evaluation was given to punish the employee for a prior complaint of discrimination.3

Another area where evaluations play a large role is when the plaintiff-employee’s attorney identifies several other employees as “comparables.” These are usually employees in the same classification as the plaintiff-employee, supervised by the same supervisor, and who are not part of the plaintiff-employee’s protected group (i.e. race, gender, or national origin). These employees’ annual performance evaluations will be subject to extreme scrutiny. Every written word, every checked box will be questioned to determine if the supervisor evaluated the performances of all like employees the same, regardless of their race, gender, national origin, religion, etc. That is why it is important to perform thorough, accurate evaluations of all employees, not just those who have performance problems. In fact, if a supervisor evaluates only those employees with performance problems those employees may claim that this “targeted” evaluation is evidence of discrimination.

Some of the most vexing cases are where there is a removal for performance issues but there are either no performance evaluations for the plaintiff-employee or the performance evaluations indicate that expectations were met, with little explanation. Sometimes, there is also no written documentation regarding disciplinary efforts. Of course, the supervisor often will be able to testify about events that led to the removal; but, without documentation there is a risk the supervisor will not recall all of the incidents, or critical, (if minute), details because there is no documentation to jar his memory. There is also a risk that there will be factual disputes about certain incidents that are hard to refute because, again, there is no contemporaneous writing that shows what the supervisor understood to be the problem. One solid step to avoid having insufficient evidence to support disciplinary action is to commit to performing annual evaluations right away, every year.

Nicole S. Moss
Associate Assistant Attorney General

¹ See O.A.C. 123:1-29-01 and 123:1-29-02.
² From a litigation standpoint, this diminishes the evaluation’s impact. Hollins v. Atlantic Co., Inc. 188 F.3d 652, 662 (6th Cir. 1999); Primes v. Reno, 190 F.3d 765, 767 (6th Cir. 1999) (holding that if a low evaluation has no direct and immediate affect on an employee’s raise or promotion, it is a de minimus employment action).
³ Halfacre v. Home Depot, U.S.A., Inc., 221 Fed. Appx. 424, 433 (6th Cir. 2007).