Print this post if you want to discourage your managers and supervisor from putting dumb sh*t in emails that might one day get shown to a jury and end up costing your business a mint.
Last night, I read this opinion from a federal judge in Wisconsin. It’s about an employee (let’s call him “Plaintiff”) who suffered from depression and anxiety. Plaintiff worked for the same employer (a/k/a “Defendant”) for over a decade until he felt that he had no choice but to retire. Somewhere in between, Plaintiff’s disabilities led him to take leave under the Family and Medical Leave Act and apply for different jobs — some lateral transfers, others promotions — that might have mitigated the effects of these mental health conditions.
Plaintiff never got these jobs for which he applied. Defendant always selected someone else for seemingly legitimate reasons (e.g., more qualified candidate; Plaintiff’s disciplinary record, etc.).
But Plaintiff wasn’t buying it. He claimed that Defendant passed him over for other positions because he took FMLA and eventually filed a disability discrimination complaint. We call that retaliation.
What is retaliation?
Retaliation claims under the FMLA and ADA require three familiar elements: (1) the employee engaged in statutorily protected activity (e.g., taking FMLA leave or complaining); (2) the employer took adverse action against the employee (e.g., not getting a promotion); and (3) the protected activity caused the adverse action.
That third “causation” element can be challenging to prove. Rarely does a plaintiff have direct evidence of retaliation. But “if a plaintiff can assemble from various scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more likely than not that discrimination lay behind the adverse action,” then a jury (rather than a judge) will decide the retaliation claim.
Put another way, “direct evidence of this causal connection—akin to the employer announcing, “I ate the last cookie in the jar”—is exceedingly rare.” Plaintiff had none. “What he does have, however, is an array of circumstantial evidence, the equivalent of the trail of cookie crumbs leading from the jar back to the employer’s office.”
The E in Email stands for “Exhibit,” as in Exhibit A.
The cookie crumbs are emails. And, damn, did he have emails!
Like the ones where Plaintiff’s supervisors referred to Plaintiff as “F’ing crazy,” “Walter Mitty,” “a head case,” a “little baby,” a “piece of sh*t,” “f**king nuts,” “the loser,” a “dumbass,” a “nut case,” “seriously unstable,” a “crazy dude,” and “the reason God made Bombay Saphire [sic].”
Or how about the email exchange between two supervisors in which one inquired about Plaintiff’s FMLA leave, mocked and revealed Plaintiff’s confidential EEO complaint, and consistently derided Plaintiff because of his disability.
And then, there was the one that Plaintiff’s supervisor sent right after rejecting Plaintiff’s application for a promotion. Plaintiff had previously emailed another supervisor to explain that his 2010-11 discipline and performance issues were attributable to mental illness. In response, that supervisor emailed Plaintiff’s supervisor and warned him to “Be careful.” Plaintiff’s supervisor replied, “I was very careful to keep it to his lack of performance,” a statement that might imply that there were additional, unspoken reasons that he needed to avoid.
And let’s not forget the email from a supervisor who confirmed that her plan was to either force Plaintiff to retire or fire him.
What do you think? Could this be retaliation if these supervisors knew about Plaintiff’s FMLA leave and EEO complaint? Yes, a jury will have to decide whether this “avalanche of emails,” as the court put it, is enough to help prove retaliation.
Here are my general rules of thumb when it comes to company email:
- If you wouldn’t want it read to a jury, don’t send it.
- If you wouldn’t want to pay a lawyer like me to attempt to explain away your stupid emails to a jury, don’t send it.
- If you really, really want to send that email, wait 24 hours, then double delete it, and don’t send it.