Anything you say can, and will, be used against you in a court of law.  That familiar phrase comes from criminal law as part of a criminal suspect’s Miranda rights.  But, it applies equally well in employment discrimination cases.  Anything that an employer says about an employee can, and will, be used by the employee to prove discrimination.  Moreover, by putting it in an e-mail, the employer preserves the evidence for the employee’s benefit.

One employer learned that lesson the hard way in Stewart v. Wells Fargo Bank, N.A., No. 5:15-cv-00988-MHH (N.D. Ala. Mar. 14, 2017).  In Stewart, the employee was hired in 2012 and had a documented history of poor performance in 2012 and the first half of 2013.  She received a formal performance warning on June 26, 2013.  When she received that warning, she informed her supervisor that she was having health issues that needed to be resolved.  On July 9, 2013,  Wells Fargo granted FMLA leave to Stewart for neck surgery, and she returned to work on August 26, 2013.

On October 5, 2013, the supervisor sent an e-mail to Wells Fargo’s Human Resources Office recommending termination of Stewart’s employment.  While that e-mail detailed several performance issues, it also stated termination was justified because “Debby submits a request for medical leave.”

Those seven words were sufficient to submit the case to a jury.  The trial court found the statement sufficient to constitute “direct evidence” of discrimination.  Direct evidence is evidence that shows a direct correlation between a discriminatory or retaliatory attitude and the employment action complained of.  Once an employee submits direct evidence of discrimination, the employer’s asserted reasons for termination can only be decided by a jury.  Thus, the trial court in Stewart, refused to dismiss Stewart’s claims and allowed a jury to decide whether poor performance or FMLA leave was the real reason for termination.

Employers should take the Stewart case as a cautionary tale about the necessity of thoroughly training supervisors.  The facts in Stewart indicate that there were plenty of performance reasons for terminating the employee.  But, the supervisor went beyond those reasons and listed protected conduct as a reason for termination.  And, once that reason was listed, the employer was stuck with it.  Employers should carefully train their supervisors on permissible and impermissible grounds for termination, and further train them on the proper way to document poor performance.