Protected Opposition Activity Under Title VII And Confidential Information

  Niswander v. The Cincinnati Insurance Co., ___F.3d___ (6th Cir. June 26, 2008) is an interesting Title VII retaliation case. A female claims adjuster who was fired after delivering confidential documents to attorneys involved in a disparate pay class action against her employer that she had opted into did not engage in protected activity under either the participation or opposition clause of Title VII's anti-retaliation provision, concluded the Sixth Circuit. The court announced a six-factor balancing test for determining under what circumstances the delivery of confidential documents in violation of company policy was "reasonable" and, therefore, protected activity under Title VII. As the court stated:

There is a paucity of caselaw addressing the production of confidential information in the
context of a retaliation claim. The few circuit courts that have faced the issue have all chosen a balancing test to determine whether the unauthorized disclosure of the documents should be protected. One such case is O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996). In granting CIC’s motion for summary judgment, the district court relied almost entirely on O’Day and the case of Watkins v. Ford Motor Co., No. C-1-03-033, 2005 WL 3448036 (S.D. Ohio Dec. 15, 2005). *  *  *

During discovery, O’Day produced documents that he had found by rummaging through files in his supervisor’s office on the night that he was initially denied the promotion. The district court noted that the file “was clearly not meant for general inspection” because “[n]ot only was the file kept in a closed drawer in his supervisor’s desk, but it contained notes and memoranda about sensitive personnel matters and was prominently marked ‘personal/sensitive.’” O’Day, 79 F.3d at 758. O’Day photocopied the documents and showed them to another employee. Once McDonnell Douglas learned of O’Day’s conduct, it terminated his employment. McDonnell Douglas later moved for summary judgment, arguing that O’Day’s copying and distribution of the confidential documents immunized the company from any liability for discrimination. In response, O’Day argued that his conduct could not provide a legitimate reason for terminating his employment because it was protected activity under the ADEA’s opposition clause.
O’Day further claimed “that by gathering evidence for an eventual lawsuit, he was
participating in the investigation of an unlawful employment practice under the ADEA, or at the very least opposing such a practice.” Id. at 763. The Ninth Circuit applied the balancing test that it uses in the Title VII context for determining whether O’Day’s conduct was protected activity.
Under the test, “[t]he court must balance the purpose of the Act to protect persons engaging reasonably in activities opposing . . . discrimination, against Congress’[s] equally manifest desire not to tie the hands of employers in the objective selection and control of personnel.” Id. (internal quotation marks omitted).
Ultimately, the O’Day court “[struck] the balance . . . in favor of McDonnell Douglas”
because “O’Day committed a serious breach of trust, not only in rummaging through his
supervisor’s office for confidential documents, but also in copying those documents and showing them to a co-worker.” Id. The court noted that there was no explanation for why O’Day chose to preserve evidence of layoff decisions during a time when he had yet to be laid off. Id

Mitchell H. Rubinstein