A federal court in Covington, Kentucky, recently dismissed a retaliation claim based on e-mail evidence that the manager accused of retaliation didn’t know she was denying a request made by an employee who had filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and a subsequent lawsuit. The case illustrates the power of electronic evidence and how you can use it to your advantage.
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Debra Meyers, an assistant professor of history at Northern Kentucky University (NKU), sought advancement to several administrative posts at the university. However, she was turned down because of her “confrontational interaction” with other members of the NKU faculty and staff. Two EEOC charges and a lawsuit followed.
On May 7, 2012, Meyers asked NKU to pay $2,000 in tuition for two religion courses she wanted to take at the College of Mount St. Joseph in Cincinnati, Ohio. Beth Sweeney, NKU’s associate provost for administration, denied her request.
NKU has a tuition waiver policy for courses at Kentucky’s state universities. Obviously, a college in Cincinnati doesn’t qualify for tuition payments under the policy. Meyers promptly amended her discrimination complaint to allege that NKU’s failure to pay her tuition was retaliation for her EEOC charges and lawsuit.
Court’s decision
NKU asked the federal court to dismiss all of Meyers’ claims without a trial. The university argued that a jury didn’t need to decide any factual disputes and the undisputed facts entitled it to pretrial dismissal of the case. Meyers responded by voluntarily dismissing all of her claims except the allegation that NKU refused to pay her $2,000 tuition in retaliation for her other legal actions.
Meyers had to present four different types of evidence to take her retaliation case to a jury:
- She engaged in activity protected by Title VII of the Civil Rights Act of 1964.
- NKU knew she had exercised her civil rights.
- The university took an adverse employment action against her.
- There is a causal connection between her EEOC charges and lawsuit and the adverse employment action.
By filing EEOC charges and a discrimination lawsuit, Meyers clearly engaged in “activity protected by Title VII.” Similarly, NKU’s denial of her request for payment of her tuition qualified as an adverse employment action. Nevertheless, the court dismissed her case because the uncontested evidence showed that the NKU official who denied the tuition request didn’t know that Meyers was the person who made the request. Where did NKU get such uncontested evidence? E-mail.
An e-mail exchange between an administrative employee in NKU’s history department and Sweeney, the associate provost, conclusively established that Sweeney didn’t know the identity of the faculty member requesting the tuition payment. The administrative employee’s e-mail merely asked Sweeney for a decision about tuition reimbursement for “a full-time faculty person.” The e-mail never identified Meyers by name.
Sweeney responded to the administrative employee via e-mail, “It is not appropriate for the university to pay for courses for someone to take classes, especially if the courses are not NKU courses.” There was no evidence that she knew she was talking about Meyers. Accordingly, U.S. District Judge William Bertelsman threw out Meyers’ case. Debra Meyers v. Northern Kentucky University, 2013 WL 954230 (E.D. KY, 2013).
Bottom line
This decision illustrates how e-mail and other electronic evidence can work to the advantage of an employer. In this case, the e-mail evidence enabled the judge to “read the mind” of the decision maker. The exchange conclusively demonstrated that Sweeney didn’t know the request she was denying came from an employee who had filed EEOC charges and a lawsuit against NKU. As a result, her motive couldn’t have been to retaliate against Meyers.
Almost all discrimination litigation turns on the employer’s motives. In the past, employers and employees had little alternative but to rely on circumstantial evidence to prove motive. For example, a minority employee would point to the employer’s retention of similarly situated white employees to prove her race motivated its decision to terminate her. Or a whistleblower would point to the short time between his allegations of wrongdoing and his termination as evidence that his protected activity caused his termination. Such circumstantial evidence can be difficult to overcome.
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Clik here to view.
E-mail, text messages, tweets, and other electronic evidence can document what a manager was thinking at the time she made an employment decision. Wise employers will look carefully for electronic evidence that may prove they made employment decisions with lawful motives.
John Lovett chairs Frost Brown Todd’s labor and employment law practice group in Louisville, Kentucky. He may be contacted at jlovett@fbtlaw.com.