If, like me, you deal with HR compliance and employment law issues regularly, you’ve yelled the title of this blog post at others.
(And if you don’t deal with HR compliance and employment law issues regularly, dude, WTH are you doing here?)
I thought of this last night as I read this Sixth Circuit decision. The facts are a bit more elaborate, but the short of it is that the defendant says it responded to complaints from the plaintiff’s subordinates. The plaintiff claimed it retaliated against her after she advocated for a disabled employee.
When a terminated plaintiff claims retaliation, she bears the ultimate burden of proving that the employer’s proffered reason for firing her was a mere pretext.
Did the employer fire the employee for the stated reason or not?
Here, two months before the defendant abruptly suspended and terminated the plaintiff and within mere days after the plaintiff complained to in-house legal counsel, the plaintiff’s superiors exchanged what the Sixth Circuit described as “strategy” emails.
Grab your popcorn.
One superior began, saying she had been thinking about “the best approach to ending [the plaintiff’s] employment.” She explained that the plaintiff “no longer demonstrates the qualities we need” in a supervisor and that multiple issues “severely diminished her credibility.” So, she proposed “immediately releas[ing the plaintiff] from her duties” and giving her 21 days to accept a settlement. If the plaintiff refused, the superior proposed convening a Disciplinary Review Conference to “seek her discharge.” “Given her years of service and lack of documented discipline,” the superior added, settlement appeared their “best option.” Another superior thought the plan was “worth a shot,” though he speculated that the plaintiff would “claim retaliation.” Another superior also signed on.
In two months more, the defendant fired the plaintiff, claiming that an investigation into the plaintiff yielded findings that some employees found the plaintiff unpleasant, abrasive, or unfair. But, also consider that the plaintiff had worked for the employer for 14 years without “documented discipline.” Her only performance review in the record was positive. And just a year before the plaintiff’s termination, a supervisor offered to recommend her for promotion. But the defendant fired her notwithstanding.
That’s curious too.
Altogether, a reasonable jury could find that the defendant’s stated reasons were not its actual reasons.
Folks, there’s a time for using email to document conversations, performance issues, etc. But since we know that the “E” in email stands for “Exhibit,” there’s also a time when a phone conversation serves as a good substitute for creating the lousy evidence that a jury should never see.