by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
Responding to a Negative Annual Review & Performance Improvement Plan
Have you ever been set up? You know what I mean – you don’t “get” the joke someone else just told, then you suddenly realize the reason you don’t get it is because the joke is on you?! Perennially, I get questioned about whether a professor should worry about suddenly getting a negative annual review, or (worse yet) I am asked how serious they should consider being the subject of a PIP (Performance Improvement Plan). Allow me to unpack these conjoined challenges. I will first tell you that, sudden or not, ANY negative annual review needs to be responded to in writing, or it may be the last thing you see in writing about you. AND, if you become the subject of a PIP, KNOW that you had perhaps consider starting your job search. Why must I make these alarming declarations? I make them because your employer’s (think Dept. Head, or even Dean) “concern” over the arc of your professional accomplishments is dripping with an undercurrent message to you that things have gotten so bad that they feel they have had to resort to writing you about these concerns. At least, whether you believe it or not, this is the message that your employer intends for you to get. And you cannot let these entireties about you go unanswered.
So, what do you do with a bad annual review – sudden or not? Let me first address what I will identify as a worsening string of annual reviews. In a way, a string of worsening annual reviews becomes like an annual PIP. The only way to turn this downward spiral into an arrested attempt to “show you the door,” is to write your detailed response. This applies to a sudden negative annual review too (sudden in that this sudden Review is way different than all those that preceded this “first” bad one). And when I advise by using the words “detailed response,” I mean it. Your response should be written like your Master’s/Doctoral thesis, with tabbed attachments (if appropriate), and all that goes into refuting the broad sweeping conclusion that you once were great – but now you are not! Get help with this missive. Don’t try to go it alone. I am not trying to drum up business for Higher Ed lawyers here – it’s just that I know you! We really cannot effectively judge the length and or breadth of such a reply for ourselves. It’s too personal and too much about being able to fairly evaluate ourselves. In your response you will be either too deferential, too angry, or too verbose – or worse, give up some legal claim or claims you may want to make later. So, ok, I guess on that last bit of advice, it wouldn’t hurt to get some legal advice because responses like these are tricky. Unless you “see” a legal land mine (that the law often intentionally puts in your path), you may blow yourself up and lose a claim or claims unwittingly without knowing it.
One other great piece of advice for you, whether you are on tenure track, already tenured, or subject to post tenure review, (whether you are at a public or private college or university), do NOT trust those who appear to be kind, caring, concerned folks in human resources (HR). They aren’t your friends; they most likely had a hand in drafting your negative annual review, or played a part in creating a PIP you couldn’t possibly complete successfully. Some have told me that I am too hard on HR types – but I push back and simply respond that I am just calling “balls and strikes” and alerting my clients that HR professionals are paid by your employer. Take a look at their paycheck – their allegiance is to your employer, not you.
Finally, don’t get too dramatic about a negative annual review, or an impossible PIP. See it as your opportunity to turn the tables. It’s your opportunity to put your “case,” or your side in front of your bosses. If that negative review is unfair, say so in a well-reasoned written reply. If the PIP makes performance impossible because it is too short a period of time to accurately measure your performance, or if it has too many tasks for you to perform well, or if it is just non-sensical, say so, IN WRITING, but get help before sending in your response and ask for more time if you need it. Don’t forget that the very act of giving you a negative review, or PIP, can be an act of discrimination in and of itself. Have I said you need help with this response? Yep, I have. Please don’t put off getting that help. Just how you answer that negative review, or how you push back on that PIP, can have real consequences not only in your present position, but in a new job you have in the future. A well-reasoned written response can tell your story if you find yourself unexpectedly out on the job market and need to explain what happened to you. Be independent, but do not be afraid of asking for help - it may be the strongest thing you can do!”
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”
