An employee took documents from her employer to support her discrimination claim and you won’t believe what happened next!
Criminal indictment, that’s what! Ouch!
The employee worked as a clerk for a public employer. The employee, a female, while still employed, filed a lawsuit against her employer alleging gender, ethnic, and sex discrimination. During the course of discovery, the employee produced hundreds of documents that she had taken from the employer in support of her claims; some were highly confidential and some may have been original documents.
Let’s back up for a second. In 2010, one state Supreme Court outraged employers by holding that the removal of documents from an employer in support of a discrimination claim was not per se unlawful. See Quinlan v. Curtiss Wright Corporation. Quinlan, an HR executive, had removed documents from the company in pursuit of her sex discrimination claim against Curtiss Wright. When one of the documents was used in a deposition, the company realized that she was taking documents and fired her. She amended her lawsuit to include a claim for retaliation. The judge instructed the jury that if it found she was terminated for removing the documents, it had to rule against her, but if it found that she was terminated for using the documents at deposition, then it had to rule in her favor. The jury awarded her nearly $5 million on the retaliation claim.
On appeal, rather than tossing the claim for retaliation, that Supreme Court established a seven factor test to determine whether the actions of removing the documents and using them in the lawsuit constituted protected conduct (how did the plaintiff get them, how valuable were they, was a policy violated, how did the conduct weigh against protecting the public interest of laws against discrimination, etc.). The court ultimately held that the trial court’s jury instruction was correct.
So since that time, employers have been hamstrung when an employee sues while still employed – they have to treat the employee exactly the same way because doing anything else exposes them to a retaliation claim, but at the same time, they fear that the employee is helping herself to documents that will help her claim.
Now, based on that Supreme Court decision, the employee probably thought, “hey – that’s the way to go. “ But she has now learned the hard way that nothing is that cut and dried. Upon learning of the employee’s actions (of removing company documents), the County Prosecutor for that local jurisdiction presented the case to the grand jury which then indicted the employee on the crime of theft.
The employee moved to dismiss the indictment based on Quinlan but the trial court denied the motion. Last month, the appellate division upheld that decision. The Court noted that the analysis of a motion to dismiss a criminal indictment is very different from an analysis of discrimination. The appellate division held that the state had made its prima facie case that an unlawful act had occurred. The court also found it significant that the was a public employee, although the Court in Quinlan never made such a distinction.
The appellate division specifically rejected the argument that the indictment should be dismissed because allowing it to proceed would have a chilling effect on plaintiffs in discrimination cases. In addition to noting that there are numerous other ways to lawfully obtain the relevant documents (which, by the way was one of Curtiss Wright’s arguments that the Supreme Court rejected in its case in 2010), the appellate court here refrained from announcing a sweeping statement of public policy: “To dismiss the indictment . . . would amount to the judiciary establishing a public policy that employees must be categorically insulated from criminal prosecution under the theft and official misconduct statutes if they take confidential employer documents to support potential discrimination claims. In short, unless the state Supreme Court of that jurisdiction grants a stay to review the case, the employee will now undergo trial for the crime of doing the same thing that Quinlan did in 2010. Of course, there is nothing to stop the employee from amending her civil action complaint to allege that the employer retaliated against her by referring the matter to the prosecutor.
Let’s think about this. Employers are rightfully concerned about employees taking supporting documents, while they are employed, that can be later used in a lawsuit against the employer. We get those calls all the time. It is hard to monitor this activity while the employee is currently employed. However, do you as an employer have a policy in place regarding theft of company property? Stealing company documents (not personnel files) may fit under this policy. Stealing is stealing. This is certainly food for thought.
One final note. Employers when terminating employees, as an example, need to watch employees very closely if the terminated employee makes a request to return to their workstation because they need to “pack up some things.” During the actual termination make sure that someone is disabling the employee’s access to the computer. After the termination someone needs to accompany the employee back to his/her desk and make sure no company property is being tucked away.