Based on a recent decision by the New Jersey Supreme Court, an employee engages in protected activity under the New Jersey Law Against Discrimination where she or he copies and takes company documents for the purpose of aiding the prosecution of a discrimination claim.
In Quinlan v. Curtiss-Wright Corporation, the plaintiff-employee, Joyce Quinlan, was an experienced human resources professional who had joined the defendant-employer, Curtiss-Wright Corporation, in 1980. By 1999, she had become the Executive Director of Human Resources. In 2003, the employer re-organized its HR department and, in doing so, promoted a male employee, Kenneth Lewis, with allegedly less experience to the position of Vice President. As a result, the plaintiff-employee became this particular male employee’s subordinate.
The plaintiff believed that she had been passed over for the Vice President position because she is a woman. At trial, for instance, Quinlan presented evidence that few women held senior managerial positions within the company; that women (including Quinlan herself) were commonly excluded from certain company events, even when the discussions related to the HR department; and that the CEO often golfed with Lewis.
Quinlan provided her attorneys with more than 1,800 pages of company documents, which she believed bolstered her case. In November 2003, counsel filed a complaint on plaintiff’s behalf alleging, among other claims, gender discrimination. Plaintiff’s counsel later produced to opposing counsel the company documents his client had assembled.
Several weeks after making this production, the plaintiff’s attorneys deposed Lewis and, during the course of that deposition, questioned him about his most recent performance appraisal, which allegedly rated him as needing improvement in several areas. Lewis claimed that he had never before seen the appraisal. Following this deposition, the company terminated Quinlan for allegedly continuing to copy confidential information.
In charging the jury, the trial court noted that there was a significant difference between the taking of the document and its use at the deposition:
[W]hile Joyce Quinlan’s conduct in copying and removing copies of documents is not protected and is conduct for which she could have been justifiably terminated, the conduct of her attorneys in using those documents in the process of prosecuting this lawsuit is protected activity and could not properly have been a determinative factor in terminating her. In other words, if you find that a determinative factor in Curtiss-Wright’s decision to terminate Joyce Quinlan was her attorneys’ use of any of the documents, including but not limited to [Mr. Lewis's performance appraisal], such a finding would be the basis of finding for Joyce Quinlan. On the other hand, if the real reason for her termination was her copying and removing the documents, including but not limited to [the performance appraisal], such a motive by Curtiss-Wright would not be actionable.
The jury ultimately found for the plaintiff-employee, awarding her approximately $4.2 million in back pay and front pay economic damages for her retaliation claim. The jury also found, by clear and convincing evidence, that the employer had intentionally engaged in unlawful conduct and, as a result, awarded approximately $4.5 million in punitive damages.
The Appellate Division found that the trial court had erred in its jury instruction and vacated the retaliation verdict. The New Jersey Supreme Court disagreed with the Appellate Division and reinstated the retaliation verdict. In so doing, the Court adopted a flexible, totality of the circumstances approach to decide whether an employee is privileged to take or to use documents belonging to the employer. The Court set forth seven factors:
1.How the employee obtained the document
2.With whom the employee shared the document
3.The nature and content of the document
4.Whether the taking of the document violated a company policy that is routinely enforced
5.The relevance of the document to the employee’s claim vs. whether its disclosure was unduly disruptive to the employer
6.The relevance of the document to the employee’s claim vs. whether the document was likely to be destroyed or lost
7.The broad remedial purpose of anti-discrimination laws and how permitting or precluding the use of the document will affect the legitimate rights of both employers and employees
Overall, given the nuances in cases like this, employees are well-advised to first meet with an attorney before deciding to take company documents.