Smoking Gun Evidence or Just a Responsible HR Professional?

Human resources professional play an important role in the workplace by helping front-line managers to understand the discrimination law. Last week, the Massachusetts Appeals Court issued a decision that could be seen as undermining that role, concluding that notes of a telephone call with a human resource consultant might be evidence of pretext. In Wagner v. Baystate Health Inc., the Appeals Court reversed the grant of summary judgment to the employer on Robert Wagner’s claim that Baystate fired him in retaliation for assisting his wife (who was also a Baystate employee) in filing a claim with the MCAD. Wagner had told human resources that he intended to help his wife with her complaint. Two days after she filed the complaint, Wagner was suspended and ultimately terminated. Although Baystate argued that there was a legitimate, non-retaliatory reason for its decision, the Appeals Court believed that the timing of the suspension and termination relative to the filing of the MCAD complaint was sufficient to create a genuine dispute of fact regarding the employer’s motivations.

What is significant about the decision is how the Appeals Court pointed to the notes of a telephone call between Baystate and an outside human resources consultant. The notes stated that the consultant wanted a call “ASAP” to ensure that the suspension and termination did not appear to be related to the filing of the MCAD claim. As the Appeals Court acknowledged, on the one hand, “such a note might support an inference that the termination was not an act of retaliation,” but on the other hand, the opposite could be true – “that the termination indeed was an act of retaliation.” Because the Appeals Court was required to draw all reasonable inferences in favor of Wagner, it concluded that the notes made his claim of pretext even stronger. Note that there was a procedural issue in the case as to whether the notes were properly in the record, and the Appeals Court ultimately concluded summary judgment for Baystate was inappropriate with or without the notes.

Putting aside the procedural issue, the way the Appeals Court approached the notes creates risks for an employer whenever human resources professionals attempt to do their jobs. In this case, the human resources consultant was merely highlighting the risks associated with the termination and suspension. Nothing about that undermines management’s reasons for the termination. This is a very typical conversation between human resources and management to ensure that the termination is appropriate under the circumstances. Human professionals are trained to understand the employer’s legal obligations under the discrimination laws and play an important role in educating management regarding those obligations. In a perfect world, these types of discussions would be with legal counsel and thus protected by the attorney-client privilege. But more often than not, the first discussion is with human resources professionals and without involvement of lawyers. In Wagner, this took the form of notes of a telephone call, but oftentimes the communication is in email.

The Wagner case sends the wrong message. The notes, at worst, are equivocal, but Wagner suggests that because the human resources consultant raised the specter of retaliation, it is permissible to read into that some improper motive on the part of the employer. Courts should be encouraging managers to consult with human resources professionals to insure that they are complying with their legal obligations in making human resources decisions, not penalizing them for doing so. The Appeals Court’s analysis serves no purpose other than to encourage employers to lawyer up in the first instance.

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