Oregon Public Employee Facing Discipline or Termination? Don’t Delete Your Work Email

The modern workplace leaves a remarkable electronic trail.

Deleting an email does not necessarily mean the email disappears. Depending on the employer’s system and retention settings, IT personnel may be able to determine when messages were deleted, how many were deleted, whether they were moved to another folder, whether documents were downloaded, whether removable media was connected, and sometimes much more.

For a public employee who is already under scrutiny, that can create a second employment issue that did not need to exist.

I am seeing a pattern in employment cases that deserves more attention.

An employee complains about discrimination, retaliation, harassment, whistleblowing, disability accommodation, protected leave, misuse of public funds, safety concerns, or some other workplace problem. Then the employee comes under much closer scrutiny. Sometimes that scrutiny includes asking IT to examine the employee’s email account, computer activity, deletion history, or other electronic records. The employer finds something it characterizes as a policy violation.

And then the explanation changes. The employer says, in effect: “We didn’t terminate her because she complained. We terminated her because of what we discovered afterward.”

That argument can create real problems for an employee. But it does not necessarily end a retaliation case.

Sometimes it creates another question for the employer: Why did you suddenly decide to go looking?

Oregon public employees may have protection from retaliation under several different state and federal laws, depending upon what they reported or opposed.

For example, Oregon’s public-employee whistleblower law makes it unlawful for a public employer to take or threaten disciplinary action because an employee makes certain protected disclosures involving violations of law, mismanagement, gross waste of funds, abuse of authority, or substantial and specific dangers to public health and safety. Or. Rev. Stat. § 659A.203.

Other laws may protect employees who complain about discrimination, exercise family or medical leave rights, request disability accommodations, participate in an investigation, or engage in other protected conduct.

That does not mean a public employee becomes immune from legitimate discipline after making a complaint. Employers can still investigate genuine misconduct.

The important question in a retaliation case is often whether the employer would have treated the employee the same way if the employee had never complained.

And increasingly, that question can include the decision to investigate the employee in the first place.

One of the clearest examples comes from a case involving a city employee named Jennifer Smith.

Smith complained about sex discrimination. About a week later, the police chief secretly ordered a forensic examination of her work computer.

The examination uncovered nude photographs and evidence that Smith had used her city computer in connection with another job. The city eventually relied upon what the search uncovered in terminating her.

That sounds, initially, like very bad evidence for the employee. But the Eleventh Circuit identified another question that mattered: Why was the forensic search ordered in the first place?

The court held that the computer search itself could constitute retaliatory action. And when evaluating whether the decision to search was retaliatory, the court said the focus had to be on what the decisionmaker knew when he ordered the search. Something discovered afterward could not retroactively supply the reason for beginning the investigation.

The court therefore reversed summary judgment on Smith’s retaliation claim. Jennifer Smith v. Pelham, City of, No. 20-13210 (11th Cir. Dec 10, 2021).

There is another lesson in Smith that Oregon public employees should take seriously.

Smith also pursued privacy claims arising out of the computer search. Those claims failed because the city’s computer-use policy allowed the city to access data on its computer systems.

In other words: Do not assume that something is private simply because you personally put it on your government computer.

Another case involved an Alabama public employee named James Long.

Long had testified in another employee’s discrimination case. Within about a month, his employer began an investigation that eventually led to his termination.

During the investigation, management searched Long’s government computer using search terms that included “Retaliation” and “Racial Discrimination,” along with names connected to the underlying discrimination case.

The Eleventh Circuit held that a reasonable jury could look at the timing and focus of that investigation and conclude that it was prompted by Long’s protected testimony rather than merely by legitimate concerns about unrelated misconduct. James Long v. Alabama Department of Human Resources, 650 F. App'x 957 (11th Cir. 2016).

Again, the point is not that a public employer loses the right to investigate an employee who has engaged in protected activity. It doesn’t.

The point is that the investigation itself can become part of the evidence.

The legal concept is older than modern digital forensics.

In a Fourth Circuit case involving Navy Federal Credit Union, management developed a plan to scrutinize a complaining employee until it could discover an apparently objective reason to fire her—such as payroll fraud. The employer could then point to that newly discovered misconduct rather than the employee’s discrimination complaint.

The court held that the heightened scrutiny itself could be part of the retaliatory scheme. EEOC v. Navy Federal Credit, 424 F.3d 397 (4th Cir. 2005).

What has changed is the technology.

Twenty years ago, heightened scrutiny might have meant a supervisor watching an employee more closely, scrutinizing time sheets, soliciting complaints from coworkers, or documenting minor performance issues.

Today, an employer can ask IT to examine years of electronic activity. That makes heightened scrutiny much easier, faster, and potentially more powerful.

This issue matters particularly to Oregon employees because Oregon is within the Ninth Circuit.

In a 2026 unpublished decision involving a public employee, the Ninth Circuit treated the initiation of a workplace investigation as an adverse employment action for purposes of a retaliation claim. The court also found that the timing of the investigation—less than two months after protected activity—combined with other evidence could support causation. Crowe v. Averill, et al., No. 25-1400 (9th Cir. May 12, 2026).

Crowe illustrates an important point: An investigation is not automatically neutral simply because the employer calls it an “investigation.”

Courts can look at why it began, who initiated it, when it began, who conducted it, and whether it was conducted fairly.

Imagine that you have worked for an Oregon city for 12 years. You routinely receive personal email at work. You also routinely delete it.

Then you report what you believe is misuse of public funds. Two weeks later, you are placed on administrative leave.

You become nervous and spend an evening cleaning out your mailbox. You delete several hundred messages: advertisements, personal receipts, appointment reminders, newsletters, and family correspondence.

You may have had no improper intent at all. But months later, your employer may describe what happened this way: “After learning that she was under investigation, the employee deleted hundreds of emails from the City’s system.”

Now there are two disputes. The first is whether your employer was retaliating against you. The second is why you deleted the emails.

Maybe your explanation is completely convincing. Maybe IT can recover everything. Maybe the employer has no policy prohibiting routine deletion. Maybe other employees delete thousands of messages every year without anyone caring.

And maybe the employer’s sudden decision to examine your deletion history—something it has never done to anyone else—becomes useful evidence of retaliation.

You still would have been better off never creating the issue.

That is why my advice is this: If you reasonably believe your employment has become contentious, stop deleting.

Don’t panic. And don’t start trying to “fix” things yourself.

People accidentally delete folders. Outlook behaves unexpectedly. Employees continue routine inbox cleanup without realizing that it might later be characterized as significant.

If something like that happens, do not start moving additional files around in an effort to make everything look right. Do not delete additional material to make your prior conduct appear consistent. Do not invent an explanation. And do not lie to IT.

Instead, document what happened while your memory is fresh.

Depending upon the circumstances, promptly notifying IT can also be important. An email or help-desk ticket saying, “I accidentally deleted this folder; can you restore it?” created at the time of the event can look very different from an explanation offered for the first time months later after somebody accuses you of intentionally destroying information.

If you already have a lawyer, talk to your lawyer before taking additional action.

There is an important flip side to all of this. Preserving evidence does not mean taking government records home.

An employee who is afraid of losing computer access may start forwarding emails to a personal account, downloading files, taking screenshots, or copying an entire government drive.

That can create a completely different employment problem.

Government records can contain confidential personnel information, medical information, attorney-client communications, law-enforcement information, student records, protected health information, or other material that an employee may have no right to take outside the employer’s systems.

So the rule is not: “Grab everything before they lock you out.”

The rule is: Don’t destroy things, and don’t improperly take things.

If particular evidence needs to be preserved, there are lawful ways for an attorney to address preservation.

The safest approach is to keep your personal life off your government employer’s systems in the first place.

Use your personal email account for personal matters. Use a personal device for communications with your attorney. Do not store personal photographs, tax returns, medical records, family correspondence, or other sensitive information on your work computer simply because it is convenient.

Treat your work computer and work email account as if your employer may someday review everything on them.

Because someday it might.

One of the things I pay close attention to when evaluating an Oregon public employee retaliation case is whether the employer’s behavior changed after the employee engaged in protected activity.

Did your supervisor suddenly begin documenting minor issues after you complained? Were you criticized for conduct that coworkers routinely engage in? Did an employer that never cared about email deletion suddenly conduct a detailed audit of your mailbox? Was your computer examined when nobody else’s was? Did HR begin soliciting complaints about you?

Did the investigation begin immediately after you reported discrimination, complained about unlawful conduct, requested protected leave, sought an accommodation, contacted a union representative, or asserted some other protected right? Was the person you complained about involved in deciding that you should be investigated?

None of those facts automatically proves retaliation. But they are facts an employment lawyer will want to understand.

Sometimes the investigation that the employer says supplied an independent reason to terminate the employee becomes evidence about why the employer was looking for that reason in the first place.

That is why, in a retaliation case, I am interested in more than what the investigation found. I want to know why somebody decided to start looking.

First, read whatever the employer gives you carefully. Follow lawful instructions concerning reporting to work, contacting employees, returning equipment, and remaining available.

Second, resist the urge to start cleaning up electronic files.

Third, do not assume that “administrative leave pending investigation” means the decision has already been made. Sometimes it has. Sometimes it hasn’t. Either way, what you do during this period can affect what happens next.

Fourth, preserve your own lawful personal records concerning the underlying dispute—things already in your possession such as personal notes, letters mailed to your home, text messages on your personal phone, or documents your employer previously provided to you.

And if you believe the investigation followed whistleblowing, discrimination complaints, protected leave, disability issues, union activity, or another protected event, consider obtaining legal advice before giving a detailed written or recorded response.

If you believe an employment dispute, investigation, discipline, or termination may be developing, my advice is no.

Even innocent deletion can later be misunderstood or characterized as an attempt to conceal or destroy information.

The safer approach is to leave the account alone.

Often, yes. Often, they already are.

The exact answer depends on the employer’s policies, any applicable collective bargaining agreements, and the circumstances of the search.

But public employees should never assume that a government email account or government computer is private. It’s not private from your boss and it’s not private from the public.

That is one of the clearest lessons from cases involving workplace computer searches.

Potentially.

An employer has every right to conduct a legitimate investigation based on legitimate concerns.

But courts have recognized that an investigation or heightened scrutiny can also be evidence of retaliation when it begins because an employee engaged in legally protected activity.

The questions become: Why this employee? Why this issue? Why now?

No.

Real misconduct can obviously make an employment case much harder. An employer may have the right to discipline or terminate an employee for legitimate violations of workplace rules.

But later-discovered misconduct does not necessarily answer whether the employer had a retaliatory reason for initiating an unusual investigation. That distinction was central in Jennifer Smith’s case.

The safest course, however, is not to create a second issue unnecessarily.

If you think discipline or termination may be coming: Don’t delete anything from your work email or work computer. Don’t start “cleaning up” your electronic history. Don’t forward large quantities of government records to yourself. Don’t assume your work computer is private. Keep personal matters on personal devices and personal email accounts.

And pay attention if the level of scrutiny suddenly changes after you assert a workplace right or report a problem.

Sometimes what happens after an employee complains becomes just as important as what happened before.