The Sixth Circuit Court of Appeals recently considered a case in which an employer refused to renew an employee’s contract after learning through email surveillance that she planned to sue for age and gender discrimination. In Fields v. Fairfield County Board of Developmental Disabilities, No. 12-3005, (6th Cir. Dec. 6, 2012), the plaintiff worked as an administrative assistant to the superintendent of the county board. After the board passed her over for a promotion, she sent several emails to a former employee complaining about the board’s discriminatory practices. The plaintiff stated she did not “have the right anatomy” for the new position. She also stated that a coworker received a raise because he was less than 40 years old.

During this time and unbeknownst to the plaintiff, the board superintendent began having all of the plaintiff’s emails forwarded to him. The superintendent claimed he was concerned about the plaintiff’s opinion of him and suspected that she was discussing their work relationship with others. Additionally, the human resources director asked the plaintiff’s supervisor to begin documenting his conversations with the plaintiff because she “heard through the grapevine” that the plaintiff was threatening to sue the board for discrimination. One year later, the board placed the plaintiff on administrative leave because of problems with her job performance. The superintendent stated in the plaintiff’s performance review that he hesitated to give her confidential materials because of her negative attitude and mistrust in him. He specifically mentioned the fact that the plaintiff had indicated to others that she might sue the board. When the board elected not to renew her employment contract, the plaintiff sued the board alleging that it retaliated against her for complaining about discrimination.

The district court granted summary judgment in favor of the board, and the Sixth Circuit affirmed. The court held that the plaintiff had successfully demonstrated a prima facie case of retaliation. The superintendent specifically mentioned the plaintiff’s statements about suing the board, which he learned about through the intercepted emails, as one of the reasons for the mistrust between them. Because lack of trust was a basis for refusing to renew the plaintiff’s contract, a causal connection between the two existed. So what saved the board from litigating a costly trial? The board had documented the plaintiff’s job performance problems over the course of several years. She repeatedly failed to follow the superintendent’s instructions and perform tasks in a timely manner. The plaintiff did not dispute these job performance issues. As a result, she failed to show that the board’s nondiscriminatory reasons for not renewing the contract were pretextual.

The employer in this case dodged a bullet. Terminating an employee who has complained about workplace discrimination is risky business, especially when the employer’s knowledge of the complaints comes from covertly screened personal emails. The employer in Fields v. Fairfield County was saved by the fact that it had maintained a thorough written record of the employee’s job performance problems. What lesson does this case teach employers? Before terminating an employee based on job performance problems, make sure the problems are well documented. Develop written policies and apply those policies in a consistent, neutral manner. These steps are crucial to successfully defending a lawsuit by a discharged employee.