Virginia Case Illustrates Risks of Internal E-mail Communications

There was recently an employment discrimination case in Roanoke that provides a valuable lesson to HR professionals. Here are the key facts:

1. Manager supervises an employee whose job performance is deemed to be deficient. He drafts proposed written warning, and emails it to HR for review.
2. Employee belongs to protected class (e.g., race, age, gender, disability) and/or there is a reason for the company to exercise caution before implementing any disciplinary action against employee (e.g., lengthy service; employee has exercised rights–complained, taken FMLA leave; good performance reviews).
3. HR edits the proposed warning, and sends e-mail to manager with comments.
4. Company ultimately terminates employee citing poor performance as reason.

Sound familiar? This fact pattern could arise in any workplace. The manager sought input from HR as to a personnel matter, and HR performed one of its key roles. In this case, however, the terminated employee subsequently filed a lawsuit alleging that his termination was the product of unlawful discrimination and retaliation.

Here’s the critical lesson: With rare exception, all of the internal e-mails between HR and the manager are discoverable and must be turned over (produced) to the plaintiff in the normal course of the litigation. Thus, every word or phrase used by the manager or HR professional will be carefully scrutinized.

So why was this a concern? When the HR professional responded to the manager (step 3 above), she wrote, among other things, as follows:

I have reviewed the documentation that you have provided . . . There is a lot of substance here and I am fine with you proceeding. There is a lot of room for him to ‘trip up’ after this warning considering all the areas where he is below expectation.

According to the company, the employee’s performance problems continued. HR sent an e-mail to an executive to provide him with an update. The HR professional stated, among other things, that she was waiting to receive a follow-up performance review from the manager so that she could “scrub it to ensure it is appropriate since this will be highly sensitive and this document could end up being used in a file defending our actions.”

(As an aside, the employee/plaintiff was not aware of these emails when he filed his lawsuit. It was only in the course of formal discovery that he requested pertinent documents in the company’s possession, and the company was obligated to locate and produce them.)

The company filed hundreds of pages of documents and evidence with the Court to justify its termination decision, and asked the Judge to dismiss the case. The Judge refused to do so. In so doing, the Judge relied heavily upon the two internal e-mails from the HR professional.

[The Company] has sought to undermine [Plaintiff’s] case by marshalling evidence of Plaintiff’s failure to meet [its] legitimate job expectations. Plaintiff, however, has countered by arguing that the Company saddled him with impossible, illegitimate expectations that no employee could meet. In support of his argument, Plaintiff spotlights two e-mails from the Company’s head of human resources. One e-mail refers to performance expectations that could ‘trip up’ Plaintiff, and the other mentions Plaintiff’s latest performance review document and the need to ‘scrub it to ensure it is appropriate.’ Clearly, both e-mails are subject to more than one interpretation. These e-mails, standing alone, are sufficient to raise a triable question of fact regarding the legitimacy of the Company’s expectations . . . The fact-finder is free to use the evidence as a basis for rejecting the Company’s proffered explanation . . . The Court will therefore deny the Company’s motion for summary judgment. Phillips v. StellarOne, C.A. 7:11cv440 (W.D.Va. July 2012)

What can we learn from this decision? Electronic communications are here to stay. They can be efficient and effective. As shown herein, however, they can also be dangerous. Company managers need to know that everything they say and do, especially in their electronic communications, could be “fair game” and subject to production in an employment claim. Companies must ensure that management and HR receive training and education to avoid situations such as the one summarized herein.