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E-mails Prove to be Manager's Downfall Created by

- M. Lee Smith Publishers

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The Internet and e-mail have vastly improved the lines of communication for business and proved to be a real benefit for employers. We are also beginning to see how these tools can be used to impose liability on employers. The following case out of Charlotte, NC, highlights the danger e-mail poses.

Facts

Christina Schippers was hired in 1997 as a financial analyst with First Union National Bank. She was later promoted to the position of events planner in the bank's fixed-income division that was part of the corporate and investment banking department. By the end of 2000, she was making approximately $70,000 a year in salary. Her performance reviews up until shortly before her discharge were all satisfactory.

In September 2001, with the completion of the merger between First Union and Wachovia Corporation, Schippers' first-level supervisors remained the same but her overall supervisor was changed to corporate events manager Deborah Covington.

As an events planner, Schippers' duties included marketing, event planning, and client development for the department. This responsibility included planning major events with large budgets. According to the bank, there was a policy that all event expenditures in excess of $50,000 required written approval by a senior manager. Her first-level supervisors weren't able to authorize such expenditures. According to Schippers, the regular practice in her department was to receive verbal authorization from her supervisors for expenditures despite the policy. While employed by the bank, she regularly authorized expenditures well in excess of the $50,000 policy limit with the knowledge of her supervisors.

In late October or early November 2001, Schippers reported to Covington that a co-worker had made racist comments at work, referring to one African-American colleague as "Aunt Jemima" and another as "Miss Prissy." Schippers indicated that some of those comments might have been overheard by another white co-worker and possibly some African-American co-workers. According to Covington, Schippers pleaded with her to not "breathe a word" of her allegation to anyone. Covington didn't investigate her allegation any further or speak with the individual or possible witnesses.

A few months later in January 2002, Covington fired Schippers. According to Covington, the firing was the result of seven incidents of rude behavior with co- workers and authorizing expenditures in excess of $50,000 without a senior manager's written approval in violation of bank policy.

Initially, Covington claimed that she had prepared a probationary letter to Schippers on January 10 based on the seven incidents of rude behavior, but after she learned of the unauthorized expenditures, made the decision on January 11 to fire Schippers instead. E-mails were uncovered between Covington and an HR representative, however, indicating that they were working on drafting the probationary letter at least two weeks after Schippers' firing and after a discharge letter had already been drafted.

Schippers sued for gender discrimination and retaliation. She claimed male managers at the bank engaged in similar behavior and weren't disciplined, and Covington was motivated to get rid of her because she had made the race complaint against Covington's "protégé."

Court's decision

The bank claimed that the seven incidents of rude behavior and the unauthorized expenditures were legitimate reasons for her firing. Examining Schippers' retaliation claim, the court found sufficient evidence to allow the claim to go to a jury. Particularly persuasive with the court was Covington's failure to investigate Schippers' complaint that a co-worker had made racist comments and Covington's willingness to place her on probation for rude behavior while failing to do anything about racist comments by the co-worker.

The fact that Covington prepared the probationary and discharge letters after Schippers had been fired allowed the possibility that a jury would disbelieve the bank's reason for firing her and suggested Covington was "cover[ing] her tracks." The e-mail between her and the HR representative also stated that Schippers was "taking the fall" for male managers on the policy violations, which raised doubt about the reasons' legitimacy.

As for Schippers' gender discrimination claim, the court found that her immediate supervisors were equally, if not even more, responsible for the policy violations because they knew about her expenditures and the policy but did nothing. Moreover, other male managers who regularly violated the policy or engaged in rude behavior with co-workers weren't disciplined. Therefore, both claims could go to a jury. Christina Schippers v. Wachovia Corporation, Civil Action No. 3:03-CV-421-H (W.D.N.C., March 31, 2005).

Practical pointers

If you allow employees to use instant messaging, the Internet, and e-mail in the workplace, it's critically important that you implement an effective policy concerning their proper use. Some employers have gone as far as training employees in proper use and format for e-mail correspondence.

While many employees and supervisors view e-mail and instant messaging on workplace computers as "informal" conversation, in the eyes of the law and the court it has the same effect as a signed letter on company letterhead. It's highly advisable that you remind managers and supervisors that e-mail doesn't disappear when deleted.

Managers and supervisors should ask themselves before clicking the send button whether they would want everybody in the company, lawyers, and a judge to look at that e-mail.

There are a couple other important pointers from this case. While the facts in the case were taken in a light most favorable to Schippers (meaning the court assumed most of the facts alleged by Schippers were true for this particular decision), the facts did show an employee performing at a relatively satisfactory level and a supervisor not regularly advising the employee when performance issues or workplace conduct came up. In the end, it appears the manager made the decision to fire probably based on legitimate reasons but then found herself scrambling to justify those reasons after the fact. That led to suspicion of the reasons.

While it's difficult as a busy manager or supervisor to regularly give employees performance evaluations and caution employees on workplace conduct, it's important to try to at least verbally counsel employees and note that in their personnel files. If a firing does result, it won't come as a complete surprise to the employee.

Finally, using rude behavior as a basis for discipline while failing to investigate an allegation of race discrimination was a critical mistake. If an employee with performance or workplace issues makes a discrimination or harassment complaint, this generally shouldn't stop the disciplinary process. It must be investigated, or it creates inconsistencies in discipline that are very damaging.

Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from <a href="/ncemp.shtml?HLe">NORTH CAROLINA EMPLOYMENT LAW LETTER</a>. North Carolina Employment Law Letter is intended as a report on topics of interest in labor and employment law. It is not intended as legal advice. Readers with legal questions or problems should consult legal counsel and should not rely upon this publication without advice of counsel.

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