By Samson Habte
June 8 — An associate who sued her firm for employment discrimination may not have done anything wrong when she searched for and copied internal firm documents, including privileged communications, to help prove her case, the Massachusetts Supreme Judicial Court held May 31 ( Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 2016 BL 169748, Mass., No. SJC-11901, 5/31/16).
The decision revived a high-profile lawsuit that accuses a prominent Boston-based firm of gender and pregnancy discrimination. It also established new law on a novel question of employment law that was further complicated by the plaintiff's status as a lawyer.
The main issue was whether it is “protected activity” under a Massachusetts discrimination statute for an employee contemplating a lawsuit to access and share with her personal attorney confidential documents of the employer that may help prove the claim.
The court said such conduct may constitute protected activity—but “only if the employee's actions are reasonable in the totality of the circumstances” as measured under a seven-factor test.
The justices further held that the statutory protection may apply even when the plaintiff is a lawyer and the documents at issue are subject to rules governing attorney-client confidentiality and privilege.
“While the status of a document under the confidentiality and privilege rules is, to be sure, an important factor to be considered in the over-all reasonableness analysis, it is not, by itself, dispositive,” Justice Barbara A. Lenk wrote for the court. Only four justices participated in the decision.
The court identified “seven nuanced factors” as relevant to determinations as to whether an employee's “self-help measures” are reasonable for the purposes of invoking the statutory protection.
The decision reinstated a lawsuit in which Kamee Verdrager accuses Mintz, Levin, Cohn, Ferris, Glovsky & Popeo of gender and pregnancy discrimination.
Verdrager also accused three individual Mintz Levin partners of aiding and abetting harassing behavior toward female associates.
A disciplinary hearing committee found Verdrager acted unethically and recommended a 30-day suspension. But a review board disagreed, concluding that Verdrager “had not violated any rule of professional conduct,” the court said in a footnote.
Verdrager's claims have generated heavy media coverage, and the high court's ruling has already prompted members of the employment defense bar to issue client alertscautioning companies to limit internal access to electronic documents that disgruntled employees might seek to bolster discrimination claims.
Lawyers at Foley Hoag LLP said the ruling “signals that documents stored on an employer's server or document management system that can be readily accessed by employees are fair game for self-help discovery.”
A trial judge granted summary judgment for Mintz Levin, saying a jury couldn't reasonably infer from the evidence that Verdrager's demotion and termination were the result of discrimination and retaliation.
The judge said Mintz Levin gave valid nondiscriminatory reasons for its decisions: that Verdrager was demoted for poor performance and fired for disseminating confidential documents in violation of firm policy and her own professional duties. Verdrager couldn't show those justifications were pretextual, the judge said.
The high court disagreed. It said the record was “capable of different interpretations.” A jury could infer that Verdrager was fired “not because of her unethical activity as such, but because of [firm management's] view that the plaintiff should not remain at the firm while continuing to pursue [the] discrimination claims” she had already filed with a state agency, Lenk said.
The court said its holding made it unnecessary to address Verdrager's alternative argument that “even if the defendants' proffered reason for firing her ultimately is determined to be the real reason, it is nonetheless unlawful, because her acts of self-help discovery constituted protected activity under” Mass. Gen. Laws ch. 151B, the state's anti-discrimination statute.
But Lenk said the court would address the topic of self-help discovery anyway because it could come up at trial and the issue “concern[s] matters of important public policy that are likely to recur.'”
Verdrager alleged that a partner at Mintz Levin made sexually charged comments to her shortly after she joined the firm in 2004. Verdrager complained to her superiors but no action was taken after an internal probe, the court said.
Verdrager worked at Mintz Levin for another four years, and she claimed she received unfavorable reviews from the lawyer she made the complaint against and other partners who expressed frustration about her unavailability after she took maternity leave.
Verdrager was demoted in 2007 and retained counsel in contemplation of filing a discrimination claim. She later came across an internal memo on the firm's document management system that discussed sex discrimination at the firm and was generated in connection with a suit filed by a lawyer in another of the firm's offices.
In the ensuing months, “on instructions from her attorney, the plaintiff conducted targeted searches seeking other documents” that might bolster her claims, the court said. She forwarded documents to her personal e-mail address and shared some of the contents with her lawyer.
In late 2007, Verdrager filed a complaint with the Massachusetts Commission Against Discrimination, claiming she was demoted because of her gender. She worked at the firm until November 2008, when she was informed she had been selected for layoff due to the economic crisis.
According to the court, the firm offered to settle Verdrager's claims if she agreed to the layoff. Verdrager rejected that offer and informed one firm member that she possessed documents relating to gender discrimination at the firm. The firm then terminated Verdrager for cause, triggering the present action.
Mintz Levin said in its brief that Verdrager inappropriately sought to revive her dismissed retaliatory discharge claim “by labeling her conduct in removing confidential and client-privileged documents as ‘protected activity' under c. 151B.”
The firm said Verdrager's actions were not reasonable because, among other things, they “were a betrayal of trust” and a violation of her professional obligations.
The supreme court disagreed. It said “acts of self-help discovery” can constitute protected activity under the statute if “the employee's actions are reasonable in the totality of the circumstances.”
Moreover, Lenk said, “We are not persuaded that where, as here, the plaintiff is an attorney, such that some of the documents at issue may be subject to the rules of attorney-client confidentiality and privilege, the plaintiff's actions should thereby be stripped of the protections afforded other employees by G. L. c. 151B.”
“Were this not so, an ‘attorney-litigant who is contemplating a wrongful termination action against her former employer [would not] be able to consult meaningfully with counsel' about the merits of her discrimination case without risking ‘dismissal' of the suit or “disciplinary action for improper disclosure of confidences,” Lenk wrote, citing Chubb & Son v. Superior Court , 176 Cal. Rptr. 3d 389, 30 Law. Man. Prof. Conduct 557 (Cal. Ct. App. 2014).
Citing another California case, Fox Searchlight Pictures, Inc. v. Paladino, 106 Cal. Rptr. 2d 906, 17 Law. Man. Prof. Conduct 328, (Cal. Ct. App. 2001), Lenk added: “‘[T]he shield of confidentiality' should not be turned ‘into a sword' to defeat discrimination claims by employee-attorneys whose proof of discrimination may be found in such privileged and confidential sources.”
Verdrager, of Bedford, N.H., argued pro se.
Joan A. Lukey of Choate, Hall & Stewart LLP, Boston, argued for Mintz Levin.
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Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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