Employment Law Daily Lawyer's search for confidential firm docs may have been protected activity
Thursday, June 2, 2016

Lawyer's search for confidential firm docs may have been protected activity

By Marjorie Johnson, J.D.

A female associate who was demoted and later discharged after complaining of bias revived her claims under the Massachusetts’s anti-discrimination law, despite the trial court’s determination that she couldn’t refute the firm’s assertion she was demoted for performance reasons and fired because she sought and shared confidential documents to help prove her case. In addition to finding ample evidence suggesting that these proffered justifications were pretext for gender bias and retaliation, the Massachusetts Supreme Judicial Court determined that her actions regarding the confidential documents could be considered protected activity if found reasonable in the totality of the circumstances (Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,,Mass. Sup. Ct., May 31, 2016, Lenk, J.).

The associate had worked in the firm’s employment, labor, and benefits (ELB) section since 2004. About a month after she was hired, she complained that a male partner had made sexually inappropriate comments, including telling her he wanted to cheat on his wife and that he was dreaming about her. The partners and others subsequently began criticizing her performance and she was eventually demoted in February 2007 (after having also given birth to her first child).

She hired an attorney and later filed a charge with the state’s anti-bias agency. On the advice of her attorney, she also searched the firm's document management system for items that might prove her claims. In November 2008, after these searches were made known to the firm's chairman, she was terminated “for cause.”

Evidence of bias. The state’s highest court concluded that she sufficiently refuted the firm’s assertion that she was demoted based on her performance reviews, certain partners’ refusal to work with her, low utilization, and a high billing rate. First, she argued that similarly situated males were treated differently. For instance, a partner who criticized her for not being available for emergency assignments went to the gym during business hours with a male associate whom he also allowed to leave early because he had “a wife and kid at home.”

The record also indicated that the partner whom she complained about tried to undermine her by “bad-mouthing” her and asking a client to submit a written complaint against her. Certain criticisms made by other supervisors also arguably reflected “stereotypical thinking.” One manager felt she was more concerned about pursuing a discrimination claim than her “level of commitment to her professional development.” Others made comments about her during her pregnancy that suggested a stereotypical view of women as not committed to their work because of family responsibilities.

Finally, findings by a consulting firm hired in the wake of litigation brought by a female employee in one of the firm’s other offices (whose verdict had been upheld at the appellate level) indicated that many female attorneys felt they were not given the same assignments or opportunities as men. Feedback had also been given that such unfair treatment was practiced by some of the same members who wrote the plaintiff’s evaluations and investigated her discrimination complaints. Moreover, statistics supported the survey’s finding that many believed that unfair treatment hurt the firm's ability to retain women.

Questionable reason for discharge. The associate also cast doubt on the firm’s assertion that she was fired because she violated firm policies and her ethical duties. Although the decision was made soon after the chairman discovered she had copied confidential documents, he had been kept informed of her bias claims and performance issues and was involved in her demotion. The timing was also suspicious as she was terminated only a few weeks after she was selected for layoff, five days after the firm had offered to settle her claims in exchange for her agreement to a lay-off, four days after she rejected that offer, and one day after the chairman learned of her decision in that regard. Thus, a jury could infer that the firm used the incident with the documents as an excuse to fire an employee who had long been viewed negatively, but who would not leave voluntarily or could otherwise be terminated due to her pending bias claims.

Retaliatory motive. Although she wasn’t demoted until 2-1/2 years after her initial complaint, she presented evidence that a pattern of retaliatory conduct began soon thereafter. She also pointed to more direct evidence of the chairman’s motivation, including his comment that “you don't stay employed by a firm for the purpose of enhancing the value of your case as opposed to enhancing your career.” He also consulted with others who held views that she might have been “falling back on claims of discrimination” and that she was “looking for issues to sue us on.”

Self-help discovery. Because this issue of first impression might arise at trial and concerned matters of important public policy, the court addressed whether the associate’s self-help discovery could constitute protected activity, concluding that it could if reasonable in the totality of the circumstances. Moreover, a plaintiff’s status as an attorney does not automatically strip her of such anti-bias protections, although the status of a document under the confidentiality and privilege rules would be an important factor to consider in the over-all reasonableness analysis.

In analyzing such cases, the court advised to begin with the question of whether the materials would have been otherwise discoverable, and then evaluate the seven factors set forth by the New Jersey Supreme Court in Quinlan v Curtiss-Wright. These included examining how the employee came to have access to the documents and weighing their relevance to the disruption caused by their seizure.

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