When Is Employee Acquisition of Employer Information, Contrary to Workplace Rules, Nonetheless Protected Activity

            Plaintiffs have long contended that removal of documents and electronically stored information from their employer, even though ordinarily viewed as misconduct, can constitute “protected activity” under retaliation statutes where the information was removed as part of the employee’s efforts to gather evidence against the employer.  The most dramatic court decision on this issue in recent times is that of the New Jersey Supreme Court in Quinlan v. Curtiss-Wright, 8 A.3d 209 (N.J. 2010).  In Quinlan, the Court held that while defendant could terminate plaintiff for the act of taking documents, it could not terminate her for using them in support of her claim against the company.  

            The Seventh Circuit’s brief opinion in Loudermilk v. Best Pallate Co., LLC, 636 F.3d 312 (7th Cir. 2011) is also instructive on this topic.  In Loudermilk, the Court was faced with a situation in which plaintiff was terminated for violating the employer’s policy against taking pictures in the workplace.  Chief Judge Easterbrook, writing for the panel, held that if the reason that the plaintiff took pictures of the work site was to bolster his claim of discrimination, “then forbidding picture-taking looks a lot like an attempt to block the gathering of evidence during an investigation.”  Plaintiff, an African American, had alleged that he was assigned to work alone on one side of a piece of equipment; whereas two or more Hispanic employees were assigned to work on the other side, and that when he could not keep up with the work, he was criticized.  While Plaintiff was talking with the EEOC about filing a charge, he took some pictures of the work area, apparently to show the EEOC (and, if necessary, a court) how the machine was set up and why it needed two employees on each side.  When plaintiff was observed taking the pictures, he was fired on the spot.  

            In finding that the picture-taking was protected activity, Judge Easterbrook hastened to add the following: “We don’t say that § 2000e-3(a) allows workers to break locks and rifle managers’ desk drawers in search of evidence; our point is that a ‘policy’ that may have been devised to curtail an investigation is not the sort of neutral rule that would adequately explain a discharge.” 

 Please be sure to visit our website at http://RobertBFitzpatrick.com