SkloverWorkingWisdom™ MODEL NEGOTIATION LETTER:

“PUSHING BACK” AFTER RECEIVING
POOR PERFORMANCE REVIEW/PERFORMANCE IMPROVEMENT PLAN

*****See Below*****

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Subject: Responding to Poor Performance Review/P.I.P.
To: Direct Manager and HR Representative
How to Send: Email
Purpose: Pushing Back – Creating Record of Errors/Different Views

[Sent by Email]
To: Martha Vendo, Equity Research Director
Paul Mondschein, HR Representative
Fr: Jennifer Henderson
Re: RESPONSE TO POOR PERFORMANCE REVIEW;
60-Day Performance Improvement Plan (“P.I.P.”)
Dt: July 18, 2008

Dear Martha and Paul:

Last week we met and discussed my Mid-Year Performance Review. I was surprised and disappointed to receive a Negative Overall Rating, and be placed on a 60-Day Performance Improvement Plan (“P.I.P.”). By this memo, I respond, and ask that this written response be placed in my Human Resources file.

A. The Facts are Mistaken:

In our meeting, I was told that my negative review was based on four things: (i) I had produced just six (6) research reports this first half year; (ii) I had been absent from the office without authorization nine (9) days; (iii) my expense sheets were not filed timely, and (iv) I was often unavailable and non-responsive to requests for information from the sales force.

These facts are provably false: (i) Though my name appeared as Lead Researcher on only six (6) research reports, I was the researcher and author of eight (8) other major reports. On these, however, I was asked to take secondary credit by the Head of Research, Brian Duggan, which I can easily document. As author of fourteen (14) research reports (including the ones Brian took credit for), that ranks me No. 1 in the department as to productivity. This must be noted, and corrected. (ii) Each of the nine (9) days I was absent from the office was for a surgery in February in Chicago, and recuperation; it was approved by my division chair. (iii) My expense sheets were not timely filed only because the software to do so was not installed by the IT department until last week; I will get their confirmation of that fact. (iv) Finally, I have many “Thank You’s” in my files from Sales Force staff referring to me as “the best resource in the department.”

B. Because the Facts are Mistaken, the Conclusions are In Error:

The facts upon which the Performance Review and PIP are based are false; the conclusion is as faulty as the facts upon which it is based.

C. The Procedure Used Was Incorrect, Unfair and Seemingly Designed to Falsely Accuse Me

Our Employee Handbook requires that, before any P.I.P. is imposed on an employee, the employee be first given notice of the alleged problem or deficiency, in writing, and be told who allegedly complained against him or her. That was not followed here. Our Policy Handbook also provides that the employee being given a P.I.P. be permitted to have his or her entire HR file available for review; that was denied me. Furthermore, an employee given a P.I.P. is also supposed to be permitted his or her own representative in the room; no one told me of that right.

The reason we have rules is to make sure that people are treated fairly, and not treated unfairly because of improper reasons, or personal vendettas, etc. I believe that this denial of the proper procedure, itself, must be investigated because you have violated important company rules. I am therefore requesting that this all of your records, notes, files and emails on this matter memo be forwarded to both General Counsel and our Chief Compliance Officer; please confirm by return email that you are doing so, and not covering up what has happened.

D. I believe the Reason for My Review Motivation is Improper, and Perhaps Illegal:

I cannot be certain as to why this has taken place. However, two things come to mind: (i) After I reported Jason Nell, the CFO’s son, for insider trading, Jason told me “My father will get you back.” I believe this faulty Performance Review may be motivated by retaliation, a violation of both company policy and the law. (ii) I am 57 years old, and none of my colleagues are over 34. I am constantly told, in public, “you should retire soon” by my colleagues, and my direct supervisor. I believe the perception that I don’t produce much is based on my age and the decision to give me a poor performance review was age-motivated in violation of law.

E. I suggest three (3) Solutions to this Problem

I strongly suggest that three (3) solutions be considered to address this problem: (i) My Performance Review and the P.I.P. should be discarded, and entirely removed from my file. (ii) The Review should be performed by an independent, objective team, perhaps from the General Counsel’s Office, or even an Independent HR Consultant. (iii) The multiple errors be reported to the Chief Compliance Officer, whose responsibilities include investigation of (a) retaliation, (b) illegal discrimination, (c) violation of company policies, and (d) filing of false reports in company business.

If, however, the decision is that I am not wanted in this position, or this company, any longer, I would be amenable to an amicable transition/departure so long as it included a severance package appropriate to the circumstances, and that recognized my 21 years of service. Be clear: by this memo I AM NOT RESIGNING, and have no intention or desire to do so.

At your earliest opportunity, please respond. I have taken the liberty of copying three people on this memo, as I believe they are appropriate contactees under Company Policy: The Head of Corporate Human Resources, our Chief Compliance Officer, and our General Counsel.

Sincerely,
Jennifer Henderson

cc: Norman Holzter, Head of Corporate HR
Barbara Skyloff, General Counsel
Kate Squires, Chief Compliance Officer

*** This letter is not, and is not intended to be, legal advice, which must be provided only by an attorney licensed to practice law in your locale. Nor is it intended as a substitute for legal advice. Instead, it is suggested as a model to be considered in conjunction with legal advice.

© 2008 Alan L. Sklover. All Rights Reserved; Commercial Use Prohibited

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