Courts Reject Plaintiffs’ Efforts to Characterize Alleged Misconduct as Protected Activity

• Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 717 (6th Cir. 2008) (employee who worked at home on her home computer and had access to confidential files did not engage in protected activity when she copied these confidential files and gave them to her attorney in furtherance of a pending class action lawsuit to which she had opted in).

• Laughlin v. Metro. Washington Airports Auth., 149 F. 3d, 253, 256, 260 (4th Cir. 1998) (no protected activity where plaintiff copied a disseminated a document she saw on her supervisor’s desk “[d]uring the course of her regular duties”).

• Laughlin, 149 F. 3d at 260 (copying records not protected where documents available in discovery).

•  O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763-64 (9th Cir. 1996) (no protected activity where employee rummaged through supervisor’s desk, copied documents, and gave copies to co-worker in anticipation of a future lawsuit against employer).

• Jeffries v. Harris County Comty. Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980) (plaintiff’s copying of a confidential document was not protected even where she came across in the document in the course of her job duties as secretary).

•  Jeffries, 615 F.2d at 1036 (“surreptitious copying and dissemination” of personnel records not protected in absence of showing they would have otherwise been destroyed).

• Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 234 (1st Cir. 1976) (“serious acts of disloyalty” not protected under Title VII).

• Hodgson v. Texaco, Inc., 440 F.2d 662, 663 (5th Cir. 1971) (“employee’s appropriation of records without permission for purposes of using them in a suit against the company” not protected under Fair Labor Standards Act irrespective of admissibility of records in court proceedings).

• Harris v. Richland Comty. Health Care Ass’n, Inc., 2009 U.S. Dist. LEXIS 83832 (D.S.C. Sept. 14, 2009) (rejecting plaintiff’s retaliation claim because her termination was based upon her unauthorized disclosure of other employees’ confidential employment records to a state agency because “Harris had access to these files only because of her official position [as COO] with RCHCA.  Second, Harris’s access and permitted use of the documents was strictly limited by a written confidentiality policy of which Harris was aware and which did not allow for the particular use she made of the documents.  Thus, in including these confidential documents in her SCHAC charge, Harris took advantage of her special position of trust with the employer and violated a clear and unlawful confidentiality policy designed for the protection of other employees.”).

• Watkins v. Ford Motor Co., 2005 U.S. Dist. LEXIS 33140 (S.D. Ohio Dec. 15, 2005) (“[I]f the Court were to adopt plaintiff’s argument that such conduct is protected activity, plaintiffs everywhere would be entitled, under the umbrella of protected activity, to steal company information and, so long as they give the information to their lawyer, not only be able to avoid disciplinary action by their employer, but also be empowered to successfully maintain a claim against their employer if adverse action is taken for the misconduct.”).

• JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 697, 704 (E.D. Va. 2007) (“Orally transmitting arguably confidential information to a lawyer with an eye to suing the company is quite different from physically carting away stacks of documents, disks, or computers belonging to the business without authorization to do so and in contravention of a confidentiality agreement.”).

• Jennings, 473 F. Supp. 2d at 702 (the anti-retaliation provisions under Sarbanes-Oxley cannot be read “to authorize disgruntled employees to pilfer a wheel barrow full of an employer’s proprietary documents in violation of their [duty of loyalty or confidentiality agreements] merely because it might help them blow the whistle on an employer’s violations of law, real or imagined.  Endorsing such theft or conversion would effectively invalidate [the duty of loyalty and] most confidentiality agreements, as employees would feel free to haul away proprietary documents, computers, or hard drives, in contravention of their confidentiality agreements [or duty], knowing they could later argue they needed the documents to pursue suits against employers under a variety of statutes protecting employees from retaliation” [for opposing discriminatory practices or participating in such actions]).

• Jennings, 473 F. Supp. 2d at 704 (an employee “should not engage in self-help by wrongfully retaining an employer’s documents; but instead the employee should file suit and seek the documents” in question through appropriate discovery channels).

• Bonger v. Am. Water Works, 789 F. Supp. 1102, 1107 (D. Colo. 1992) (Human Resources Director’s “unauthorized copying and distribution” of personnel files to lawyer not justified by fact that she did it in connection with claim of discrimination under Title VII).

• Baker v. Georgia Power Co., 27 F.E.P. Cases 1301 (N.D. Ga. April 30, 1981) (retaliation claim dismissed where plaintiff, a general clerk who had access to defendant’s internal files containing salary and benefit information on defendant’s employees, “covertly obtained information on employees holding jobs similar to hers and had sent such information to a Justice Department attorney as well as to her private attorney.”).

• Baker, 27 F.E.P. Cases at 1302 (“unauthorized disclosure” of confidential personnel information to attorney in connection with claim of discrimination not justified in the absence of showing that information not available “through normal discovery methods”).

• Fox Searchlight Pictures, Inc. v. Paladino, 106 Cal. Rptr. 2d 906, 921 (Cal. Ct. App. 2001) (concluding, inter alia, that the plaintiff’s disclosure of her former employer’s confidential information to her attorney was “not a public disclosure” because her attorneys were “themselves bound by the rules of confidentiality and the attorney-client privilege”).

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