Seyfarth Synopsis:  An employer terminated an employee for secretly searching for confidential documents on her employer’s computer system to use against the employer as part of a discrimination complaint.  Massachusetts’ highest court found that the termination may be unlawful retaliation.

An employee who has brought a discrimination complaint secretly looks through your company’s files searching for confidential documents to use against the company as part of his or her complaint. Can you discipline the employee?  You may think that the answer is yes.  But the Massachusetts Supreme Judicial Court recently warned employers: “not so fast.”

In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., SJC-11901 (Mass. May 31, 2016), the plaintiff was an attorney who brought a complaint against her law firm for gender discrimination in violation of the Massachusetts anti-discrimination statute, G.L. c. 151B, s. 4.  After she brought her complaint, the plaintiff came across a document discussing issues of gender discrimination at the firm while working on the firm’s computer system .  The plaintiff subsequently searched the firm’s computer systems on several occasions looking for similar documents that might help her complaint.  She found several and forwarded them to her personal email address for possible use against the firm.

The plaintiff showed firm management a portion of one of the documents she had found. The firm decided to review its logs and learned that the plaintiff had conducted multiple searches of the computer system that appeared to be related to her complaint.  The firm then terminated the plaintiff’s employment for cause.  The plaintiff responded by filing a second complaint, this time alleging retaliation.

A trial court dismissed the plaintiff’s claims, finding among other things that the firm had a legitimate reason for terminating her employment. The Supreme Judicial Court, however, reversed, finding  that terminating an employee for the type of “self-help discovery” that the plaintiff engaged in may amount to unlawful retaliation depending on the reasonableness of the plaintiff’s actions.  The court found that the “reasonableness” of an employee’s self-help depends on the following factors:

• How the employee came to have the documents in question (i.e., did the employee snoop around offices or simply come across the documents while doing other work?);
• Whether the employee’s use of the documents unduly disrupted the employer’s business;
• The extent to which the employee could have simply described the documents and requested them as part of the lawsuit rather than secretly taking the documents;
• Whether the employee shared the documents with somebody who did not need to see them as part of the employee’s complaint;
• The overall sensitivity of the documents in question;
• Whether the employer has a clearly identified, routinely enforced privacy or confidentiality policy that the employee violated; and
• The broad remedial purpose of the Massachusetts anti-discrimination statute, which the Court said should be considered in a “close case.”

While the court did not decide whether the plaintiff’s actions were reasonable (instead stating that the trial court could do so), there are still several noteworthy lessons in the court’s decision for employers:

First, more and more employees are resorting to “self-help discovery,” and decisions like this one show that their actions may be protected. While this decision relates to Massachusetts law, the court described it as a novel issue that very few courts have addressed.  As similar issues arise, other courts may follow this decision in finding that an employee’s self-help actions are protected.

Second, the case serves as yet another reminder of the care that employers should take in disciplining employees who have brought discrimination complaints. In this case, the employee’s complaint may have protected her from the consequences of an otherwise terminable offense.

Third, the court’s “reasonableness” factors show the importance of having a policy prohibiting unauthorized searches of confidential documents, and enforcing that policy when it is violated. To the extent an employee’s self-help actions violate a routinely enforced policy, a court may find those actions unreasonable.

Finally, the case shows the importance of restricting access to confidential documents. The documents in question were apparently stored on the system where all employees could access them.  Obviously, the employee would not have been able to help herself to the documents if they had been stored privately.