Judge Was Not Amused By Supervisor’s Smiley Face Emoticon

An executive secretary at insurance company Munich Re in New Jersey took extended leave under the federal Family and Medical Leave Act (FMLA) citing her asthma condition.  The company became suspicious that the employee was not really too sick to work, and hired a private investigator to follow her and videotape her public activities.  The investigator captured the asthmatic employee on video shopping at a mall and carrying boxes as she moved into a new home.  When the company saw this video footage, it made the decision to fire the employee for abusing its FMLA leave policy.

The employee sued Munich Re for violating her federal right to take FMLA leave for her asthma condition, claiming that the real reason the company fired her was because it was perturbed that she needed to be out on medical leave from time to time.  In explaining the damaging videos, the employee said her doctor had ordered her to stay active while out on leave, which was why she felt she could go shopping and help with the house move.  ]

During the litigation, the employee’s lawyer requested internal company e-mails sent during the timeframe leading up to the employee’s termination.  In one such e-mail, which was sent the day the employee was fired, her supervisor began with a smiley face emoticon, and asked “:-)) did Ray chat with you about Elaina?”.  Another supervisor responded with, “Yes he did.  Thank you for your help.  That deserves a big :-))!!!”  

The employee argued that the smiley face emoticons in the supervisors’ e-mails showed that the supervisors were all too happy to get rid of her, and merely used the videos as a way to make that happen.  But the company moved to dismiss the case, claiming that the smiley faces in the e-mails were innocuous at best, and that the company had solid grounds to fire the employee for abusing FMLA leave.

A federal judge in Camden, New Jersey refused to dismiss the fired employee’s lawsuit against the company for FMLA retaliation.  In doing so, the judge specifically called out the smiley face emoticons in the e-mails sent between the supervisors on the day of termination, and found that a jury could conclude that Munich Re was happy to terminate the employee because the FMLA leave was inconvenient for them—which is unlawful.  

This case is a timely reminder for companies that snarky remarks and unprofessional digs, whether expressed verbally or obliquely by use of emoticons (or their more refined cousins the emoji—i.e., J), have no place in workplace communications dealing with company business. 

Posted by Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, DLeonard@BerenzweigLaw.com

Employee Who Could Not Get Along With Co-Workers Was Not Protected By Federal Disabilities Law

Marissa Walz was a long-time employee of financial planning giant Ameriprise, and for most of her time there she received positive reviews.  But more recently, Walz began to engage in erratic and disruptive behavior due to a bipolar condition, which she did not disclose to Ameriprise.  She interrupted meetings, disturbed her co-workers, and disrespected her supervisor.  During one company meeting, Walz told a co-worker to “stop interrupting me, you don’t know what you are talking about.”  When the supervisor confronted her about her inappropriate conduct, Walz rudely responded that “no one thinks your position is necessary” and “there is no sense of direction since you came on board.”

After further complaints, Walz was issued a formal behavioral warning.  In response, Walz applied for and was granted a leave of absence under the Family and Medical Leave Act (FMLA).  Because Ameriprise’s FMLA policy was administered by a third party vendor, the company never learned the mental health basis for why Walz went out on leave.  When Walz returned, she presented a note from her doctor simply saying that she “has been stabilizing on her medicine” and could work full-time.  But a few months after her return from FMLA leave, Walz began to engage in the same disruptive behavior as before, and Ameriprise fired her.

Watz sued Ameriprise, claiming that her firing was due to her mental disability in violation of the Americans with Disabilities Act (ADA).

But a federal appeals court recently ruled that because Walz could not get along with her co-workers, she could not perform an essential part of her job and therefore was not protected under the ADA.  The court rejected Walz’ argument that Ameriprise should have known about her mental disorder due to her taking FMLA leave and the note from the doctor.  The court acknowledged that Walz’ supervisor had testified in his deposition that he assumed she was being treated for her mental health, but still found that the company was not placed on notice of any limitations that Walz had in the workplace.  Interestingly, Walz argued that Ameriprise should have forced her back on FMLA leave when she began acting erratically again, but the court said there is no duty for an employer to force an employee out on leave.

Declan Leonard is a managing partner at the Washington, DC business law firm, Berenzweig Leonard, LLP. Declan can be reached at DLeonard@BerenzweigLaw.com.