Emails Undermine Employer’s Defense in Discrimination Case

The United States Court of Appeals for the Seventh Circuit found that a jury could find that emails by supervisors about an employee’s military leave constitute a motivating factor in the employee’s termination. This finding revived the employee’s claim of discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA).

The case is Arroyo v. Volvo.

LuzMaria Arroyo is an Army Reservist and veteran who suffers from post-traumatic stress disorder (PTSD). She worked for Volvo from June 2005 until she was fired in November 2011. Volvo says it fired her for violations of its attendance policy, but Arroyo claimed the real reason was discrimination on the basis of her military service and her disability.

Arroyo sued Volvo in federal district court for discrimination, retaliation, and failure to provide reasonable accommodations in violation of USERRA, the ADA, the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964. Arroyo also brought a state-law claim for intentional infliction of emotional distress. The district court granted Volvo’s motion for summary judgment on all counts and awarded Volvo, its reasonable costs.

The 7th Circuit reversed the district court’s order with respect to Arroyo’s discrimination claims under USERRA and the ADA because Arroyo raised genuine, material factual issues that should be resolved at trial.

Arroyo worked as a material handler in Volvo’s Parts Distribution Center in Joliet, Illinois, from June 13, 2005, to November 8, 2011. Volvo hired Arroyo with knowledge that she was a member of the U.S. Army Reserve. She was the only active reservist at the Joliet facility. During her employment, she deployed twice to Iraq and Kuwait. Additionally, Arroyo took regular leave for weekend drills, training, and other military activities. In all, she received more than 900 days of military leave during her six-and-a-half years at Volvo. The company allowed her to modify her work schedule to take leave, and she was never directly disciplined for doing so.

Arroyo pointed to evidence, including numerous internal emails, suggesting that her supervisors were frustrated from the beginning about her schedule and absences. Some of the comments included:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty …. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”

• “the undue hardship it [i.e., Arroyo’s absences] is causing to our operation.”

• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.”

• “we likely have no recourse due to her military service.”

• “should have returned to work on August 15, 2010.” [Note: this is incorrect. USERRA allowed 90 days post-deployment to notify Volvo of her plans.]

• “[s]he’s on vacation in Hawaii.”

• “really becoming a pain with all this.”

After Volvo fired her, Arroyo sued in the Northern District of Illinois. After discovery, Volvo moved for summary judgment, and the district court granted its motion in full. Arroyo timely appealed.

The 7th Circuit concluded that genuine issues of fact remain on the issue of whether Volvo would have fired her in the absence of military service. This case was remanded for further proceedings consistent with this opinion.

This case should serve as a reminder to all employers that supervisors and managers need to be trained to avoid not only discrimination, but any comments that could be construed as discriminatory.


John Garner

About John Garner

John Garner has over thirty five years of experience in employee benefits. He specializes in compliance, health care reform, the Health Insurance Portability and Accountability Act (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), and the Employee Retirement Income Security Act (ERISA). He helps clients with life, health, and disability benefits, cost containment, flexible benefits, and claim consulting.

Subscribe to the Bolton Blog