Single E-Mail Negated Defense to FMLA Retaliation Claim

By Scott M. Wich Apr 19, 2017
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With e-mail, text messages and other electronic communications ubiquitous in the workplace, the written word has become as common as talking when it comes to business matters. However, in significant contrast to the spoken word, electronic communications have permanency. As recently highlighted by a federal district court, a failure to choose written words wisely can cause significant legal problems.

In March 2012, Deborah Stewart was hired by Wells Fargo as a treasury management sales consultant. She was assigned to develop and maintain business in Tennessee and northern Alabama. According to Wells Fargo, Stewart underperformed in her position. In the first year of her employment, she did not meet her sales goal. In 2013, her performance worsened and she was issued an informal warning. Due to a lack of evidence showing improvement, Stewart was issued a formal warning on June 26, 2013.

One week prior to receiving the warning, Stewart was diagnosed with myelopathy and was scheduled for surgery. On July 9, 2013, she requested a leave of absence, which, in turn, was granted a day later and designated by Wells Fargo as qualifying under the Family and Medical Leave Act (FMLA). On Aug. 26, 2013, Stewart returned to work.

When Stewart returned to work on limited duty, her supervisor warned her that she was still near termination, regardless of her leave of absence. After her return to full duty, Stewart's supervisor determined that Stewart had failed to show sufficient progress to justify her continued employment. The supervisor sent an e-mail to the human resources department for Wells Fargo, detailing performance-based explanations supporting a termination. Among those explanations, the supervisor commented that "Debby submits a request for a leave of absence."

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

Stewart sued Wells Fargo for retaliatory discharge under the FMLA. On a motion for summary judgment by Wells Fargo, the federal court ruled in favor of Stewart. It held that the supervisor's e-mail comment about the request for a leave of absence justifying discharge to be direct evidence of unlawful retaliation.

Wells Fargo supported its motion with evidence of Stewart's allegedly ongoing and unresolved performance deficiencies. It argued that those issues amounted to a legitimate, nondiscriminatory business reason for the discharge. The district court dismissed the argument, finding that the commonplace burden-shifting analysis of discrimination claims is applicable only in matters involving indirect evidence of discrimination. When claims involve direct evidence, such as the supervisor's e-mail detailing Stewart's request for medical leave as a justification for discharge, the district court held that a jury must determine whether the complained-of action violated the law. The court concluded that for summary judgment motions in cases involving direct evidence of discrimination, an employer's legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Stewart v. Wells Fargo Bank, N.D. Ala., No. 5:15-cv-00988-MHH (March 14, 2017).

Professional Pointer: Electronic communications constitute business records that can be subject to disclosure in litigation. Employers should properly train supervisors and managers on the appropriate use of such communications to avoid inadvertent comments that may have serious legal repercussions.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York City.

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