February 07, 2022 Practice Points

Lesson Learned: Remind Clients Not to Say the Quiet Part Out Loud in Internal Emails

An anecdote for attorneys to use in warning clients to be mindful of what they put in emails, unless they want the jury to see their derogatory discussions about the opposing side in your case.

By Jessica Barnes

First of all, generally we should all be kind and respectful of everyone around us. And second of all, no matter how you feel about your coworkers or subordinates, you should never use profanity and disparaging remarks about them in your emails. Sounds simple enough, right? Well, if you’re skeptical of either of those two statements, learn a thing or two from Schneider v. United States Postal Service, No. 16-cv-00013-bhl (E.D. Wis. Jan. 28, 2022).

In Schneider, the plaintiff asserted claims against his former employer for failure-to-accommodate, retaliation, constructive discharge under the Rehabilitation Act of 1973, and improper disclosure under the Privacy Act of 1974, arising out of the employer’s alleged mishandling of the plaintiff’s mental-health needs. Both parties moved for summary judgment, and the employer’s motion was granted on all grounds, except the retaliation claim.

Both the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) prohibit employers from retaliating against employees who assert their rights under either statute. The court explained how retaliation claims under the FMLA and ADA require three elements: (1) The employee engaged in statutorily protected activity; (2) the employer took adverse action against the employee; and (3) the protected activity caused the adverse action. Taking FMLA leave because of medical ailments constitutes statutorily protected activity, so the plaintiff met element one. The denial of a promotion opportunity qualifies as a materially adverse employment action, and the plaintiff alleged that he was passed up for a promotion as a shipping solution specialist or mailing specialist, so element two was also met. Lastly, the court found that the causation element was met as well, because the evidence permitted a reasonable factfinder to conclude that the plaintiff’s taking of FMLA leave caused the adverse employment action.

What evidence supported this conclusion, you may ask? Well, the court described it as “an array of circumstantial evidence, the equivalent of the trail of cookie crumbs leading the jar back to the employer’s office.” Employer referenced the plaintiff in emails as “F*ing crazy,” “a little baby,” “a head case,” “f*ing nuts,” the “loser,” “seriously unstable,” and a “crazy dude.” In fact, in one of the emails, it was confirmed that there was a plan to either “force him to retire or fire him.”

The court acknowledged that some of these statements may qualify as “stray remarks.” Regardless, they were enough to create a jury issue on causation and for the plaintiff to survive summary judgment. Even though the court found that the employer provided legitimate, nondiscriminatory rationales based on a combination of poor past performance and insubordinate behavior, it still found that if the jury believed the plaintiff’s evidence, it could properly find that the rationales were mere pretext.

Thus, if your clients cannot play nice with their coworkers, or they despise a subordinate at their job, remind them: Please, do not say the quiet part out loud, especially in writing. Or else, be prepared for the not-so-nice emails to get your client in front of a jury on the retaliation claim against them.

Jessica Barnes is an associate at Babst, Calland, Clements & Zomnir P.C. in Pittsburgh, Pennsylvania.

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