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Venting by email lands employer back in court

May 4, 2016

Article courtesy of SBAM Approved Partner ASE
Author: Kristen Cifolelli

As HR professionals and their business colleagues know, any information that is communicated electronically can come back to haunt the organization later on as evidence in an employee lawsuit. But it is easy to forget when you go on email to communicate strategy about how to handle a difficult employee issue.  Managers air their frustrations, not thinking about the optics and the legal exposure they create if these communications are discovered later on.

For Volvo Group North America, LLC, emails between an employee’s supervisor, management, and HR venting frustrations about the employee’s need for military and ADA leave landed the organization in legal hot water, despite their meticulous efforts to meet their legal obligations.  

LuzMaria Arroyo was employed with Volvo out of their Joliet, Illinois facility from June 2005 through November 2011. She was an Army Reservist and a veteran who suffered from post-traumatic stress disorder (PTSD). Volvo terminated her 2011 for violating the organization’s absenteeism policy.  According to Arroyo the real reason was discrimination based on her need for military leave and her PTSD requiring accommodation under ADA. 

During her tenure at Volvo, Arroyo was deployed twice to Iraq and Kuwait, once from April 2006 through May 2007 and again from April 2009 to August 2010.  She also took regular leave for weekend drills, training, and other military activities.  In total Volvo approved, and she was able to take, over 900 days of military leave during her 6½-year tenure.  

Upon her return from her second deployment, Arroyo was diagnosed with PTSD. Volvo granted FMLA leave from December 23, 2010 through March 22, 2011 in order for her to seek treatment for her medical condition. When she returned she began ongoing therapy and Volvo accommodated her under ADA, allowing her to leave her shift early or arrive late once a week to attend these therapy sessions. She also requested, and Volvo approved, additional accommodations including a quiet place to meditate before work and during breaks, the support of a mentor, additional breaks and support during panic or anxiety attacks.  

Beginning in the fall of 2010 through November 2011, Arroyo began to arrive late to work; these “occurrences” under Volvo’s attendance policy ranged from one to 22 minutes. The reasons for them were unrelated to her PTSD.  In August 2011 Arroyo received a written warning as well as a suspension for her mounting “tardies.”  In September 2011, she filed an internal complaint requesting an investigation for disability-based harassment. Volvo assigned an investigator to follow up on the complaint, but Arroyo refused to answer any of the investigator’s questions.

In the first week of November 2011, Arroyo arrived to work late twice more. These occurrences brought her to the final step in the company’s discipline process, and she was fired.

 Arroyo filed suit, claiming violations of USERRA and the ADA. Volvo produced her attendance record and also showed that five other employees were disciplined, and one of them terminated, for violating the attendance policy. Volvo, having hired her knowing she was an Army Reservist, never disciplined for either her military, FMLA or ADA-related absences.  The District Court ruled in favor of Volvo and awarded summary judgment.  Arroyo subsequently appealed and the 7th Circuit court reversed the District Court’s decision, ruling in favor of Arroyo. 

Key to the court’s decision were emails between Arroyo’s various supervisors, higher management, and HR which included the following:

  • Questioning whether they had to give Arroyo drive-time off to get to and from out-of-state military training, and whether she should be disciplined 
  • Her absences were causing undue hardship to the business
  • Expressing dissatisfaction that she was taking too much time off
  • Complaining to the Director of Labor Relations that Arroyo wasn’t keeping in touch during one of her deployments
  • Emails between supervisors when she requested FMLA leave that she was “becoming a pain with all of this” and “several rumors for Arroyo not being here” including that “she’s on vacation in Hawaii.”

The emails actually showed that Volvo was aware of and worked to comply with their legal obligations.   The court also affirmed that frustration alone does not support a claim of discrimination, but can be a motivating factor to an adverse employment action. In Volvo’s case, the emails expressing management’s frustration with her time off often transitioned directly to a discussion about disciplining her under the organizations attendance policy.  The court surmised that there was enough evidence to support a claim that the emails could permit a reasonable jury to conclude that Volvo was looking for a reason to terminate her. 

The moral of story for employers is that anything they say in an email and text, could be used as evidence to show there was a discriminatory motivating factor that was later tied to an adverse employment decision.  Supervisors and managers need to be trained on this issue. HR needs to make sure not to get caught up in the email cycle, and to encourage the discussion of difficult employee situations over the phone. 

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