Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

An individual claiming discrimination under USERRA need only prove that military service was a “motivating factor” in the adverse action—which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a “convincing mosaic” from which a reasonable jury could infer discriminatory motive.
In this case, the court concluded that emails completed this convincing mosaic, or at least enough of it for the case to go to a jury:

Taking all the evidence as a whole, a reasonable jury could infer that Volvo was motivated, at least in part, by anti-military animus toward Arroyo. There is evidence that from the beginning of her employment, her supervisors disliked the burden her frequent military leave placed on the company. They repeatedly discussed disciplining her and denied her rights, such as travel time, to which she was entitled. Some of the emails come close to a direct admission of management’s frustration…. 

Animus or frustration alone, however, does not support a claim of discrimination. It must have been linked, as a motivating factor, to an adverse employment action…. Again, we think a jury could reasonably conclude that there was such a link here. The emails expressing management’s frustration often transitioned directly to a discussion about disciplining Arroyo under the local attendance policy for her tardiness and absences.

Unlike diamonds, email messages aren’t forever, but they are pretty darn close. Employers need to train managers and supervisors to be vigilant in their care about what they reduce to writing in emails. Emails, especially those pertaining to the employment (or impending unemployment) of those in a protected class, must be vetted and re-vetted before being sent. Ask yourself this question: “Would I want this email read to a judge or a jury?” Unless the answer is an unequivocal “Yes”, do not send it.