Monday, October 12, 2015

Why an Email Is Not Like a Phone Call

Last week the 7th Circuit overturned the District Court’s grant of summary judgment in favor of Volvo Parts of America against employee Luzmaria Arroyo who claimed that she was fired because of her military service in violation of USSERA and her disability of post traumatic stress disorder in violation of the ADA.  What is especially noteworthy is that the  Court, in reversing the summary judgment ruling, relied primarily on the emails between employer representatives to find that a trial should occur to determine whether plaintiff’s military service was a basis for her discharge. To borrow from Shakespeare, the employer may be hoisted by its own petard. Here’s what happened:

The plaintiff in this case was a member of the military reserves prior to and continuing through her employment with the defendant. As such she was required to attend annual as well as special trainings throughout her employment. She was also deployed to active duty on more than one occasion. In all, she was on military leave  about 900 days during the six and one half years of employment with Volvo.

Although the defendant always granted her leave for her training and service, her supervisor did become frustrated with not only the duration of her absences, but with the fact that she would ask for additional days off over and above her training duty to travel to her military unit in Georgia and for rest and recuperation after service. Her supervisor expressed this frustration in several emails, and other company representatives also opined incorrectly that she was not due travel time as part of her leave for training so that the travel days required to drive to Georgia and back were counted against her as attendance violations. The plaintiff also alleges, which is supported again by company emails, that she was strongly urged to transfer to a military unit closer to home.

Finally, when the plaintiff  completed a deployment in August 2010, the company representatives again incorrectly discussed  via email that she was required to return to work immediately rather than within the 90 days allowed by USSERA. When she did return to work, the company offered her a severance package in exchange for her resignation. She refused the offer and was ultimately discharged for absence and tardiness violations.

While the company may ultimately prevail, its immediate problem is that it has to either pay an amount to settle this case or go to trial before a jury and try to convince them that it had no animosity against the military veteran who suffered from PTSD because she took time off to serve our country. That’s not exactly an enviable position to be in.

A couple of lessons for employers are clear from this case. The first one is to make it a policy or practice to not express personal opinion via email about employees who are exercising their protected rights. This is not only true of military service, but FMLA, ADA and other employee guarantees by law.  We agree that sometimes compliance with employment laws creates disturbances in the workplace and accommodating them can be frustrating at times, but consistent remarks of this nature can appear to be discriminatory when taken together, out of the context of day to day conversation, and coupled with an eventual adverse action. The trail of emails in this case seems to have virtually negated the fact that for six and one half years the defendant did accommodate plaintiff’s military service in a number of ways.  We have to believe that the employer would be in a different situation if the employees had just gotten their occasional frustration off their chests by way of a phone call and then moved on with their duties.

The second lesson is that employers should always base their decisions on accurate information. While the case reveals no evidence that the employees who gave inaccurate opinions about military leave rights did so with bad intent, it would have been far more helpful had the advice been more accurate. Military leave laws, like other employment protections can be complex in their application. Employers should consult with an experienced labor and employment attorney on matters such as these.