Sixth Circuit Finds Production of Irrelevant Confidential Documents During Discovery Is Not Protected Participation or Opposition Under Title VII

On Tuesday, the Sixth Circuit decided “the scope of protection that should be afforded to employees who disseminate confidential documents in violation of their employer’s privacy policy in the context of employment-related litigation.” In that case, the plaintiff had been fired after providing documents with confidential client information to the attorneys who were prosecuting a class action pay discrimination lawsuit on the behalf of her and other female employees. The Sixth Circuit held that her conduct was not protected by federal law and, therefore, the employer was permitted to discharge her for violating its confidentiality policy. Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08).

In Niswander, the plaintiff joined a class action pay discrimination lawsuit against her employer in 2003. She was a claims adjuster who worked from her home. She later came to believe that her employer retaliated against her for participating in that lawsuit, informed the human resources department in 2004 and filed an EEOC Charge the following year. She also informed the class action attorneys of her perceived retaliation and they indicated that they were interested in pursuing a claim on her behalf. When, in connection with the pre-trial discovery process, her attorneys asked her to provide copies of any documents “related to her employment” and “any documents you think might be even remotely helpful to our case,” she complied with their request so that they would not suffer sanctions from the court for failing to comply with the discovery process. Importantly, no lawsuit had been filed on her behalf allegation unlawful retaliation against her.

The plaintiff “admitted in her deposition that she had “no documents to support an equal pay [claim].” Instead, she sent documents that she believed were relevant to” the employer’s “alleged acts of retaliation against her. Some of the documents that Niswander sent were copies of e-mails back and forth with her supervisors related to her job performance. Other documents, however, were claim-file documents that allegedly would jog her memory regarding instances of retaliation, but that did not in and of themselves contain evidence of retaliation. In sending the documents to her lawyers, some of which included information about” her employer’s clients, the plaintiff “thought everything was confidential” and that “anything [she] produced was all between” her and the company’s attorneys. However, when her employer received copies of the confidential documents which she had given to her attorneys (to give back to her employer), it terminated her for violating its confidentiality policy.

Title VII prohibits employers from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title VII] [the so-called “opposition clause”], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII] [the so-called “participation clause”]. 42 U.S.C. § 2000e-3(a).” In order to state a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity (i.e., opposition or participation), (2) the employer knew of the employee’s protected activity, (3) the employee later suffered from an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). In Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court held that “the scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination provision.”

In Niswander, the court was required to decide whether the plaintiff’s provision of the confidential records to her attorneys constituted protected participation or opposition. “’The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). With respect to the participation clause, we have recognized that the clause’s ‘exceptionally broad protections . . . extend[] to persons who have participated in any manner in Title VII proceedings. ‘Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (citation and internal quotation marks omitted). “[O]nce the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.”

“’The opposition clause, on the other hand, covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers.’ Johnson, 215 F.3d at 579. We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.”

The court then held that the production of the confidential documents to her attorneys did not constitute protected participation because the documents were admittedly not relevant in any way to the pay discrimination claims being asserted in the pending lawsuit. “An individual’s delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating ‘in any manner’ in a Title VII proceeding. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (explaining that the purpose of the participation clause ‘is to protect the employee who utilizes the tools provided by Congress to protect his rights’).” However, to find that the plaintiff’s actions in this case constituted protected participation in the pay discrimination lawsuit, “would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.”

Whether the plaintiff’s conduct constitutes protected opposition conduct depends upon a balancing of her interests with that of her employer. “A balance must be achieved between the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions. Allowing too much protection to employees for disclosing confidential information may perversely incentivize behavior that ought not be tolerated in the workplace—namely, the surreptitious theft of confidential documents as potential future ammunition should the employee eventually feel wronged by her employer. On the other hand, inadequate protection to employees might provide employers with a legally sanctioned reason to terminate an employee in retaliation for engaging in activity that Title VII and related statutes are designed to protect.”

Prior decisions had indicated that employees did not have the right to search their employer’s confidential personnel and other files in order to obtain documents in support of their discrimination claims. In another case, the court permitted an employee to provide his attorney with documents which he “innocently” obtained because they were on the hard drive of computer assigned to him by his employer.

“Based on the analysis applied by the courts in the cases discussed above, we believe that the following factors are relevant in determining whether Niswander’s delivery of the confidential documents in question was reasonable: (1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy. These factors are designed to take into account the employer’s ‘legitimate and substantial interest in keeping its personnel records and agency documents confidential’ and yet protect the employee’s alleged ‘need for surreptitious copying and dissemination of the documents.’”

In this case, the plaintiff “could have preserved the alleged evidence of retaliation in other ways; in particular, she could have taken notes of the incidents that she believed demonstrated retaliation instead of delivering documents that contained confidential policyholder information. Producing confidential documents for the sole purpose of jogging one’s memory, when there are readily available alternatives to accomplish the same goal, does not constitute the kind of reasonable opposition activity that justifies violating a company’s privacy policy.”

“Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, ‘we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.’ O’Day, 79 F.3d at 763. To hold in favor of Niswander would turn the opposition clause into ‘a license to flaunt [sic] company rules or an invitation to dishonest behavior.’ Id. at 764. So even after viewing the evidence in the light most favorable to Niswander, we conclude that her production of the documents was not reasonable under the six factor test set forth above.”

“The only factors that arguably weigh in Niswander’s favor are factors one and two, but even those do not weigh heavily in her favor. Although she had access to the documents through her employment, Niswander did not innocently acquire the documents in the same manner as the plaintiff in Kempcke, who came across evidence of potential age discrimination in a company computer that had been issued to him. See Kempcke, 132 F.3d at 445. Rather than innocently stumbling upon evidence of illegal employment practices, Niswander specifically searched through the CIC documents that she had at her home office for the purpose of uncovering evidence of retaliation. Such behavior cannot be classified as truly innocent acquisition.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0221p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.