In Part One of this series, we discussed electronically stored information (ESI), the changing technological landscape, new discovery rules encompassing all ESI and what that means for HR in general terms.
In this segment, we’ll review two cases where ESI was used against an employer in litigation under the Family and Medical Leave Act (FMLA).
Part Two – Case Studies
The Adventure of the Terminated Speech Writer
In Shaffer v. American Medical Association, 662 F.3d 439 (7th Cir. 2011), a federal court addressed an allegation of Family and Medical Leave Act (FMLA) retaliation. Shaffer, a speech writer, claimed that the AMA terminated him in response to his request for FMLA leave for knee replacement surgery, while the AMA claimed that it had contemplated terminating him before his leave request due to the decreased demand on the speech-writing staff.
That would, of course, undermine a claim for FMLA retaliation, given that the employee is required to show a causal connection between his request for leave or taking leave and the “adverse employment action” or firing.
“Come, Watson, come!” he cried. “The game is afoot. Not a word! Into your clothes and come!” – Sir Arthur Conan Doyle, The Adventure of the Abbey Grange (1904).
In the course of discovery, Shaffer’s attorney uncovered a series of internal AMA emails, correspondence between Michael Lynch, Shaffer’s superior officer and Marietta Parenti, the AMA’s Chief Marketing Officer. Parenti had emailed Lynch to ask about eliminating a position to reduce the budget and Lynch initially responded that it was his preference to terminate the Communications Campaign Manager, Peter Friedman. Lynch even went so far as to say that cutting any additional positions beyond that of Mr. Friedman’s would be unnecessary.
Additional emails showed that Shaffer later notified Lynch that he would be having knee replacement surgery, that he would need four to six weeks of leave, and that he would be filing a short-term disability claim. Lynch then sent another email to Parenti indicating that he had changed his mind. He preferred to terminate Shaffer because the team was “already preparing for [Shaffer’s] short-term leave in January, so his departure should not have any immediate negative impact.”
Now, close your eyes and imagine an email with tendrils of gun smoke emanating from it. Yes, the smoking email gun. Elementary, indeed.
A Scandal in North Carolina
In Norman v. Beasley Mezzanine Holdings, 826 F. Supp. 2d 875 (E.D.N.C. 2011), a different federal court addressed a claim of Family and Medical Leave Act (FMLA) retaliation. Norman, an employee who suffered from irritable bowel syndrome (IBS), requested FMLA leave for her condition and was approved for 12 weeks of leave in January, 2010. She was terminated three months later, in April. According to her employer, Norman was terminated due to her declining sales performance, persistent tardiness and insubordination.
“There is nothing more deceptive than an obvious fact.” – Sir Arthur Conan Doyle, The Boscombe Valley Mystery (1891).
During discovery, Norman’s attorney uncovered – you guessed it – emails which painted a tremendously different picture. Specifically, Norman had received a laudatory performance evaluation immediately prior to her termination, indicating that she had exceeded her sales quota.
Another email indicated that Norman’s supervisor viewed her as a “weak link” in the month prior to her termination because of her condition, which is quite incriminating in a claim for FMLA retaliation. Yet another email indicated that Norman’s superiors did not consider her IBS to be very serious, expressing doubt as to whether her frequent absences were in fact caused by her FMLA-covered medical condition.
The combination of all of this ESI as evidence was enough to establish that Norman’s termination may have been motivated by her medical condition and/or her request for FMLA leave. And once that door is opened, employers are hard-pressed to close it again, particularly in the eyes of a jury or other fact-finders like mediators or arbitrators.
Both the superior officer in Shaffer and the supervisor in Norman made the tactical error of committing incriminating information to electronic permanency. Of course, both employers would have been better off complying with the FMLA’s anti-retaliation directives in the first place, but the commission of such information to electronic storage provides plaintiffs’ attorneys with direct evidence to make their cases.
HR should never be in the business of making plaintiffs’ attorneys’ jobs easier.
In Part Three of this piece, we’ll review some common pitfalls and best practices for HR when it comes to using good judgment about the information to convey using ESI, and the importance of protecting and preserving ESI for potential litigation.