SAY IT WITH ROSES, SAY IT WITH MINK, BUT NEVER SAY IT IN INK – OR ELECTRONICALLY

The Seventh Circuit Court of Appeals’ October 6 decision in Arroyo vs. Volvo Group North America, LLC shows that this limerick is applicable to more than one facet of life. download

Arroyo was an army reservist who, over the course of 6 ½ years, received 900 days of military leave, the bulk of which was for two deployments to the Middle East. Additionally, she took time off for drills and training. Upon her return from her second deployment, Arroyo missed additional work time for treatment for PTSD. She used FMLA for these absences and was allowed to leave early or arrive late to attend therapy sessions, was granted a quiet place to meditate before and during breaks, was provided a mentor, was given time off for counseling, and was provided breaks and support during panic or anxiety attacks.

Subsequent to the second deployment, Arroyo began to receive progressive discipline for minor infractions of the attendance policy—lateness of 1 to 22 minutes. Her supervisor retracted one of these initial disciplines because Arroyo claimed she was unaware that there no longer was a two minute grace period. Nevertheless, her tardiness continued. Subsequently, as her disciplinary record mounted, Arroyo filed an internal complaint for disability-based discrimination but then refused to answer any questions from Volvo’s investigator.

Consistent with Volvo’s attendance policy, Arroyo ultimately was terminated. She responded to her discharge by suing Volvo for violation of USERRA and the ADA. Volvo moved for summary judgment. In support of its Motion, Volvo not only established her poor attendance record, but that Arroyo was hired with knowledge of her military obligation and that she was never disciplined for any USERRA covered absences. Volvo, moreover, showed that it had disciplined five other employees, discharging one of them, for violation of the attendance policy. It, therefore, was awarded summary judgment by the trial court. Arroyo appealed.

Based on the above facts, one would think that Volvo’s lower court victory would be easily affirmed by the Appellate Court. It well might have been but for the following e-mails from her supervisors:

  • questioning whether they had to give her time off to drive to and from out-of-state training;
  • encouraging her to transfer to a local reserve unit;
  • complaining to higher management of her failure to stay in touch for planning/scheduling purposes during her longer deployments;
  • expressing dissatisfaction with the fact that Arroyo was away so long;
  • saying Arroyo “is really becoming a pain with all of this” and “several rumors for Arroyo not being here… she’s on vacation in Hawaii;” and,
  • offering Arroyo a voluntary separation package and expressing hope that she would accept it—which she did not.

The Appellate Court acknowledged that Arroyo was not disciplined directly for any military leave. Additionally, it agreed that these e-mails may demonstrate Volvo’s awareness of Arroyo’s rights, a discussion of Volvo’s rights and obligations, and its attempt to comply with the law. The Court further stated that animus or frustration with an employee’s exercise of their statutory rights, in and of itself, would not support a claim of discrimination. Rather, such animus and frustration must be linked, as a motivating factor, to an adverse employment action.

Nevertheless, the Appellate Court granted Arroyo’s appeal and remanded the case for trial. It did so because a motivating factor can be shown by circumstantial evidence such as suspicious timing, statements, or behavior. Here, the Appellate Court found all three. It did so because of the fact that Arroyo’s disciplinary problems only began after her last deployment and hospitalization for PTSD. Although Volvo’s frustration with her commenced at the beginning of her employment, many of her disciplines were for minor infractions—only a minute or two of tardiness—and the foregoing e-mails which often transitioned directly into discussions of disciplining Arroyo. The Appellate Court, therefore, concluded that these facts, particularly the e-mails, could permit a reasonable jury to conclude that Volvo, at least in part, was looking for a reason to discharge Arroyo because of the large number of absences due to her reserve status or her disability. Thus, Volvo will have the unenviable task of attempting to explain away these e-mails before the jury, which is likely to be very sympathetic to an injured reservist. This decision evidences that the World War II poster “Loose Lips Sink Ships” is still applicable in the digital era and may sink an otherwise valid defense to a discrimination claim

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
 
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