Labor & Employment Law Daily Employee fired for sending over 900 company emails to personal account, not for reverse discrimination
Monday, September 26, 2016

Employee fired for sending over 900 company emails to personal account, not for reverse discrimination

By Kathleen Kapusta, J.D. Sending over 900 company emails to his personal or other outside account, including over 100 containing confidential client information, was a legitimate nondiscriminatory reason for firing a 59-year-old employee, notwithstanding that he was allowed to work at home on the company’s secure network and that an NLRB law judge found some of the employer’s confidentiality rules overbroad. Accordingly a federal district court in Michigan granted summary judgment against his federal and state law reverse race and gender discrimination claims as well as his age bias claim under the ADEA. His FLSA claim for unpaid overtime also failed (MacEachern v. Quicken Loans, Inc., September 21, 2016, Steeh, G.). Hired by Quicken Loans at the age of 59, the Caucasian employee was assigned to the Associate Title Clearance team until the workload dropped off and he was reassigned to another team several months later. When it was discovered that he was dating the team leader, he was transferred to an analyst position where he claimed he was subjected to heightened scrutiny, an increased workload, and other harassment. He filed a written complaint, alleging age, race, and gender discrimination. A week later, he was suspended for violating company policy after it was discovered that he had sent hundreds of emails to outside email accounts, including his personal email. He was terminated two days later. Race and gender discrimination. Although the employee attempted to support his reverse race and gender discrimination claims by arguing that prior to his termination, the employer transferred two other older Caucasian men out of his department even though they were top performers, he failed to show there were any ill motives in the transfers or that the transfers were demotions. Even if the transfers were sufficient to support the inference that the company was the unusual employer who discriminates against white men, it was still entitled to summary judgment because he could not show that similarly situated employees were treated more favorably than him for the same misconduct. Nor could he show pretext. While he argued that he was told when he was suspended that the reason for his dismissal was his personal relationship with the team leader, and the HR rep acknowledged discussing this with him at his suspension meeting, she also told him he was being investigated for dissemination of confidential information via email. Moreover, it was undisputed that this was the reason given in his discharge letter two days later. Worked from home. There was also evidence that the employee was trained not to send nonpublic information to an email account and that he signed an agreement acknowledging that prohibition. The fact that he was allowed to work from home on the company’s secure network did not undermine this rule. And while he argued that the company’s confidentiality rules should be narrowly construed, he was on notice of the broadly drafted rules and he sent to his personal email account client names and loan numbers, discussions of personal client information, lien and judgment amounts, and details of clients’ divorce proceedings, bankruptcies, and estate administration. Further, the fact that an ALJ in the NLRB found some of these rules to be overly broad was "of no moment" as the issue was whether the reason given was the true reason for the discharge, or whether it was pretextual. Honest belief. Finally, the court found he failed to show his employer did not honestly believe in its proffered nondiscriminatory reason for the termination. Age discrimination. Granting summary judgment against his age discrimination claim, the court pointed out that the fact he was hired when he was 59 contradicted his allegation that his employer disliked older workers. Further, two stray remarks—one made before he was hired and one made by the HR rep referring to him as "old school"—did not evince discriminatory intent. Overtime. As to the employee’s claim for unpaid overtime for hours he never reported, the court found that the company had clear policies and procedures in place and he was specifically trained to report all hours worked for which he was not paid. "Where the employer maintains well delineated procedures for recording time worked, such as those that existed here, the employee is duty bound to comply with those procedures," said the court, observing that "the employer is not required to act as a private detective to review video surveillance cameras and to employ other clandestine means such as interviewing plaintiff’s co-workers or possibly maintenance workers, to document the hours plaintiff worked." Retaliation. The employee based his retaliation claim in part on an email by the company’s CEO acknowledging his awareness of the employee’s NLRB complaint, as well as his other "numerous misguided and ridiculous" complaints, which had been "summarily dismissed as laughable." He argued that because the NLRB upheld some of his charges, the email was misplaced and could have a chilling effect on others wishing to complain of discrimination. But even if his allegation that the email would cause other white males or other victims of perceived discrimination to be deterred from bringing claims against the company, this still did not support his claim that he, himself, was the victim of discrimination or retaliation.

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