Here’s What Happens When the HR Manager Writes Smoking Gun Emails

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By Eric B. Meyer

Documentation is good; smoking-gun emails from the HR Manager not so much.

In Phillips v. StellarOne Bank, the performance of a once solid-performing employee appeared to go south, and ultimately culminated in his termination. That employee, Phillips, claimed that StellarOne terminated him not for poor job performance, but because of his age and his decision to take FMLA leave. And two emails from the HR Manager sealed the deal.

In the first email, the HR Manager responded to a written warning and correction notice that a supervisor planned to issue to Phillips.

When an email comes back to bite

In that email, the HR Manager wrote:

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 and the magnitude of improvements needed…”

That’s not the worst email I’ve ever read from an HR Manager. One could read this as constructive guidance to a supervisor to more carefully craft a performance improvement plan. On the other hand …

Here is a snippet from HR Manager Email #2:

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Hi [Chief Operating Officer]:

[Supervisor] was to have provided the performance review to HR so that we can 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. He has not yet provided it to us and we need some lead-time before March 25. Please let me know if you and [Supervisor] need more time or have any questions on this.

Thanks!

[HR Manager]

Sometimes, a phone conversation is better

Taken together, the court had little trouble concluding that the emails gave Phillips some triable claims:

These e-mails, standing alone, are sufficient to raise a triable question of fact regarding the legitimacy of StellarOne’s expectations and, by extension, Phillips’ prima facie case. The very same evidence calls into question StellarOne’s nondiscriminatory explanation for Phillips’ termination. The fact-finder is free to use the evidence as a basis for rejecting StellarOne’s proffered explanation, and may then couple that rejection with the elements of the prima facie case to infer the ultimate fact of age discrimination.”

Many companies and, by extension, their HR Managers, are concerned that when poor performers are fired, they may just turn around and sue. Good documentation can afford the employer a solid defense.

But by all means, remember that some emails make better telephone conversations. And consider having an experienced employment attorney calling some of the shots.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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