Can being denied promotions or superior ratings be classified as continued retaliation?

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Can being denied promotions or superior ratings be classified as continued retaliation?

About 3 years ago, I filed a discrimination complaint with my employer and EEOC. As a result of the complaint, I was still receiving backlash and filed a retaliation complaint. After investigating, my employer indicated that she was guilty of bad behavior and was disciplined. I was kept on her team and continued to have issues and eventually was forced to request a move to another team. Throughout all of this, I continued to excel at my work performance but could never receive a promotion or an exceeds performance rating, although I showed how my work excelled that of others. Since my move to the other team, I have been informed that I excel at my job duties and am deserving of a promotion but because of the past filing against

my previous manager and director who also must cosign on my ratings, I am unable to promote. Per my current manager, I was recommended for a superior rating and because all the management team must agree, he is unable to give me the rating or promotion that I deserve. Hence, a salary increase and ability to receive bonuses is diminished. At present, I am at the lowest level in my department and am unable to qualify for other jobs without a promotion. It was recommended by my HR Department that I simply request the promotion that is due. I did that and am constantly told the same thing, Keep performing at your level, and it will happen. I have watched others being promoted that do not exert the level of effort that I do. Do I have other options as a result of this continued retaliation? I am exhausted and would like to seek legal remedies if able to.

Asked on January 10, 2019 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You could potentially sue your employer (bring a private lawsuit) for retaliation in violation of the anti-discrimination laws. But be warned--it may be difficult to win unless you have either witnesses who will testify that you are being retaliated against or some "smoking gun" document/email/etc. which states that you are being denied promotion due to your complaint. The problem you have is that there is no right to or guaranty of a promotion--an employee never has to be promoted. Whether to promote someone is highly subjective and discretionary. If you sue and your employer can come up with pretty much any plausible reason for not promoting you (examples: they believe you are lack leadership skills or the right temperment; other people promoted had some experience or credential or qualification you lacked; despite skill at your job, coworkers find you difficult to work with; etc.) and the court finds that reason credible, you will fail to carry your burden of proof (as the person suing, the onus is on you to prove your case) and lose. The odds of winning are probably less than 50%, because of the burden of proof and that promotions are so inherently discretionary to begin with.
It's not a "legal" suggestion, but have you considered the pragmatic option of seeking a different job? I have worked in a company where, despite top performance, I did not get promoted to the next level because, quite simply, I was not well liked and was not a great fit for corporate culture--performance matters less for promotions than being well liked in most cases. I went elsewhere rather than continue to beat my head against the wall.


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