The question presented in this matter before Massachusetts’s highest court was whether an employer may lawfully terminate an employee who violated the employer's confidentiality policies to gather evidence in support of a discrimination claim. The Massachusetts anti-discrimination statute, Mass. G.L. c. 151B, § 4(4), declares it an unlawful practice for any employer "to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding" before the Massachusetts Commission Against Discrimination ("MCAD"). Mass. G.L. c. 151B § 4(4) (2015) (emphasis added). Under this and other anti-retaliation provisions like it, courts have identified certain employee actions as "protected activities," declaring that adverse employment actions with a causal connection to such protected activities establish at least a prima facie case of retaliation.
In this case, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. ("Mintz Levin") terminated Verdrager, an associate attorney, for violating its computer use and confidentiality policies, when it discovered she had secretly copied internal documents from its computer systems to support a gender discrimination claim that she had made against the firm. It turned out that, over the course of a year, Verdrager had accessed, copied, and transmitted a multitude of her employer's confidential and sensitive internal documents, including some arguably subject to protection under the attorney-client privilege. Verdrager, who lost on summary judgment in the Superior Court, contends in this appeal that, when it fired her for violating the firm’s policies, Mintz Levin unlawfully retaliated against her for engaging in "protected activity" in support of her discrimination claims.
In connection with its consideration of Verdrager’s appeal, the Massachusetts Court issued a call for amicus briefs on the following question:
Whether, and in what circumstances, an employee may engage in so-called self-help discovery during the course of her employment, by collecting and copying documents of the employer that she intends to use in a discrimination case against the employer; whether, and to what extent, an employee who obtains documents in such a fashion is engaged in protected activity for purposes of G. L. c. 151B, such that she may not be subject to adverse employment action as a consequence.
In answering this question, NELF’s amicus brief in support of the employer, Mintz Levin, made two principal arguments. First NELF argued that, based on the clear language of the Massachusetts employment discrimination statute, “self-help” discover is simply not a protected activity. The statute, on its face, restricts an employee’s protected activity only to three categories of conduct: opposing discriminatory practices with one’s employer (such as by informal complaints or use of an employer’s grievance procedures); the formal filing of a charge of discrimination; or participation in an administrative or judicial proceeding. An unauthorized breach of an employer’s confidentiality policies to obtain confidential documents is simply not covered.
Second, NELF argued that, even if the type of activity at issue here might be protected in other circumstances, in this case the deliberate and unnecessary violation of her employer’s legitimate confidentiality polices robs what the plaintiff did of any protection. Put another way, the employee’s actions were not reasonable in the circumstances, given the firm’s written polices and even its ethical duty, as a law firm, maintain the strict confidentiality of its internal documents.
In a disappointing decision issued on May 31, 2016, the SJC reversed the Superior Court’s summary judgment in Mintz Levin’s favor and, finding that the defendant was not entitled to summary judgment, remanded the case to the Superior Court for further proceedings, consistent with the SJC’s decision, on the plaintiff’s G.L. c. 151B claims.
With regard to the amicus question addressed by NELF, the Court noted that it did not need to address the question “as it is relevant only to the plaintiff’s claim that her termination was retaliatory, and we have determined that the defendants are not entitled to summary judgment on that issue.” However, to provide guidance to the trial court, the Court did address the issue, which was one of first impression in Massachusetts, and, disagreeing with NELF’s first argument that c. 151B on its face did not protect self-help discovery, ruled that “[t]aking into consideration the interests at stake and the views of other courts that have addressed the matter, we conclude that such conduct may in certain circumstances constitute protected activity under [G.L. c. 151B], but only if the employee’s actions are reasonable in the totality of the circumstances.” In this connection, the Court emphasized that the seriousness of this test, and adopted as a non-exhaustive framework the seven factors suggested by the court in Quinlan v. Curtiss-Wright Corp., 204 N.J. 2329 (2010).
With regard to NELF’s second argument, that Verdrager’s actions were not protected activity because they were not reasonable, the SJC offered no opinion, preferring for that to be decided by the Superior Court at trial.