Short answer?  Yes.

We've all seen it before: an employee who has a history of performance problems, including belligerent interactions with co-workers and supervisors writing a rebuttal to a performance review that addresses these issues.  Usually, the rebuttal is a self-serving denial of any wrongdoing and an attempt to blame everyone else for the conflicts.

So, what is the normal reaction of management?  Nothing.  Let's face it, the rebuttal is not going to be sufficient to change the manager's mind about performance and I'd be willing to bet, at least half the time the full rebuttal is not even read.

A recent case reported by Bloomberg BNA, Tasciyan v. Medical Numerics, reminds employers that they must pay attention to employee comments in a performance review.  In Tasciyan, the Plaintiff had a history of abusive interactions with co-workers and supervisors.  When that was documented in her 2009 performance review, she wrote in response that she felt she had not been promoted due to the fact that she was the only female employee of the company.

Fast forward two months when she has yet another explosive outburst and is fired, she then claims she is being terminated for complaining of gender discrimination in her performance review.  In this case, there was some additional evidence presented that the supervisors asked her to remove her comments from the performance review.  However, I can certainly imagine a claim under similar facts where the employer never paid any attention to the comment in a rebuttal.  In that case, a judge or jury is not going to accept as a defense, "oops, never noticed that."

Employers should be careful to address any such complaints in a review and promptly investigate them.  This is true even if you think the employee is just saying anything to deflect blame.

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