Legal Report March 2011
U.S. JUDICIAL DECISIONS
EMPLOYEE RECORDS. The New Jersey Supreme Court has ruled that a company retaliated against an employee when it fired her for taking confidential documents to bolster her lawsuit. The court ruled that the employee was protected in taking the documents without authorization because she was giving them to her attorney.
In 1980, Joyce Quinlan began working for Curtiss-Wright Corporation in the human resources department. She was promoted at regular intervals until she became the executive director of human resources in 1999. She reported directly to CEO Martin Benante.
Kenneth Lewis was hired to work in the human resources department in 2000. Three years later, during a corporate reorganization, the company created the new position of corporate director of human resources. This position was above Quinlan’s and reported directly to Benante. Lewis was given the position, meaning that he was Quinlan’s new boss.
Quinlan believed she was discriminated against when the less-qualified Lewis was promoted over her. She also believed that the company had a history of discriminating against women. To prove her case, Quinlan began copying the human resources records of company employees. She collected more than 1,800 pages of documents containing the personal confidential information of employees.
In November 2003, Quinlan filed a lawsuit against the company claiming that she was a victim of gender discrimination. During the discovery phase of the lawsuit, plaintiff’s attorneys delivered the personnel documents to the company’s attorneys. The company had not previously been aware that Quinlan was photocopying company files.
Weeks later, Quinlan was given Lewis’s performance review. Lewis had been rated “needs improvement” in several areas. Quinlan felt the document would bolster her claim so she copied the review and sent it to her attorneys.
A few days later, Lewis was called to testify in Quinlan’s case. He was presented with the review and asked to comment. Lewis had not seen the document because his performance review meeting had not taken place. The company fired Quinlan for taking confidential information without authorization, noting her “theft” in the termination letter. Quinlan revised her lawsuit to include retaliation.
The first trial ended in a mistrial. In the second trial, the jury found for Quinlan, awarding her more than $10 million in compensatory and punitive damages. However, the trial court made a distinction between Quinlan copying the human resources documents and the use of those documents at trial. The court ruled that taking the document could result in termination. However, the use of the document at trial was protected because it was used by counsel, so Quinlan could not be fired for the use of the document. Because the court determined that Quinlan was fired after the document was used, she prevailed on her retaliation claim. The company appealed the decision.
The New Jersey appellate court reversed the retaliation ruling of the lower court, finding that the trial court should not have made the distinction between the theft and the use of the confidential documents. Such documents should be obtained through the discovery process, noted the court.
The court ruled that the lower court should revisit the issue to determine whether the taking of the documents could result in termination. The appeals court also vacated the punitive damages ($4.5 million of the total award), finding that the company’s actions were not egregious and did not merit punitive damages. Quinlan appealed.
The New Jersey Supreme Court overturned the appellate verdict and reinstated the decision of the trial court. The state supreme court applied a totality-of-circumstances test to the case and determined that because Quinlan copied the documents only for her lawsuit and then turned them over to her attorneys, her actions were justified. Therefore, the company’s termination was retaliation. The state supreme court also found that punitive damages were warranted.
Two of the state supreme court justices dissented, arguing that the theft of confidential employment records is a breach of trust no matter the intent of the thief. The justices noted that the decision could have wide-reaching ramifications in the state. In their written dissent, the justices wrote: “From this point forward, no business can safely discharge an employee who is stealing highly sensitive personnel documents even as she is suing her employer and disregarding the lawful means for securing discovery. Moreover, lawyers may think that, even after they have initiated a lawsuit, they can accept pilfered documents and benefit by using them to surprise an adversary in a deposition rather than abide by the rules of discovery.” (Quinlan v. Curtiss-Wright Corporation, Supreme Court of New Jersey, No. A-51-09, 2010)
RETALIATION. The U.S. Supreme Court has ruled that an employee, fired after his coworker fiancée filed a sexual discrimination lawsuit against their employer, may sue for discrimination. The Court ordered that a lower court make a decision on the case.
Eric Thompson worked as an engineer by North American Stainless (NAS). In 2000, the company hired Miriam Regalado. Thompson began dating Regalado and became engaged to marry her in 2002. In September of that year, Regalado filed a sexual discrimination lawsuit against NAS. Three weeks after the company was notified of the lawsuit, it fired Thompson. Following the termination, Thompson filed his own lawsuit against the company claimed that he was fired in retaliation for Regalado’s lawsuit.
In the subsequent litigation, the company argued that Thompson could not sue for retaliation because federal law does not prohibit firing an employee for the protected activity of his fiancée. A federal appeals court agreed with the company, finding that Thompson had no legal grounds on which to sue. Thompson appealed to the U.S. Supreme Court.
The U.S. Supreme Court ruled that federal antidiscrimination laws do cover employees in this situation. “Accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado,” the Court noted in its written opinion of the case. (Thompson v. North American Stainless, U.S. Court of Appeals for the Sixth Circuit, No. 07-5040, 2009).
U.S. REGULATORY ISSUES
SCHOOL SAFETY. At the request of the U.S. House of Representatives Education and Labor Committee, the U.S. Government Accountability Office (GAO) has issued a report on the sexual abuse of children by school employees. GAO compared school employment databases to the National Sex Offender Registry, investigated 15 cases of abuse by school employees, and reviewed federal and state laws on whether schools can hire sex offenders and whether they are required to conduct background checks on employees.
The GAO compared school employment databases to the National Sex Offender Registry to find cases of sexual abuse that resulted in a criminal conviction. GAO found that people with histories of sexual misconduct were hired or retained as teachers, support staff, volunteers, or contractors. In 11 of the 15 cases, the offenders previously targeted children. In six cases, the offenders used their positions in the schools to abuse more children.
One problem, the GAO found, was that many schools failed to conduct criminal background checks. In 10 of the 15 cases, schools did not perform preemployment criminal history checks on prospective employees. For example, an Arizona school hired a teacher who had been convicted of lewd and lascivious acts with a minor. The school chose not to conduct a background check because it was in a hurry to fill the position. The teacher was later arrested and convicted for sexually abusing a student.
In another case, a Florida school did not conduct a background check before it allowed a person to volunteer as a coach. The person turned out to be a convicted sex offender. The school did not conduct the background check even though such checks were required under school policy. The volunteer was later arrested for having sexual contact with some of the students.
Those schools that did conduct background checks often failed to conduct adequate checks. Some schools conducted checks only for the state they operated in, making it possible for sex offenders from other states to slip in under the radar and work at the school. One school used a nickname to conduct a search, missing a sex offender’s criminal history under his full name. None of the schools interviewed conducted recurring criminal checks to identify individuals who committed offenses after they were employed.
In some instances, schools did not follow up on troubling information that did surface on the background checks. For example, an applicant at one school checked “yes” when asked whether he had been convicted of “a dangerous crime against children.” The school failed to follow up on this information. The applicant was hired and later arrested for abusing children at the school.
Exacerbating the problem, schools often allow offenders to resign rather than pursuing criminal charges against them, the GAO found. In some cases, these offenders were given positive reviews, allowing them to move to a new school and continue the abuse.
In one case, a teacher was compelled to resign from a school in Connecticut after he was caught accessing pornography on a school computer. The school reported the incident but gave the teacher a positive recommendation. A second school hired him but asked him to resign a short time later, and they gave him a positive review. He was hired by a third school where he sexually assaulted two students. School officials interviewed for the report said that firing a teacher for sexual misconduct is expensive and unwise due to the potential for litigation.
The GAO reports that there are no federal laws regulating the employment of sex offenders at public or private schools. State laws have varying requirements for hiring and conducting background checks. The report includes state laws for all 50 states and the District of Columbia.
BULLYING. A new law (formerly S.B. 2015) in Mississippi prohibits bullying or harassing behavior in public schools. School employees are required to report any such behavior to school officials. Under the new law, all schools must adopt a policy prohibiting bullying and harassment. The policy must include procedures for reporting bullying and harassment as well as how such incidents will be investigated and what punishment will be given. The law states that “the policies must recognize the fundamental right of every student to take reasonable actions as may be necessary to defend himself or herself from an attack by another student who has evidenced menacing or threatening behavior through bullying or harassing.”
VITAL RECORDS. Massachusetts has approved a new law (formerly H.B. 4910) that addresses the security of vital records in the state. The law empowers state and town clerks to refuse to issue a copy of a vital record if they suspect that the request for the record has been falsely made, altered, forged, counterfeited, or procured through fraud. Clerks are directed to notify the state registrar. The registrar, in turn, must investigate the issue and if fraud is suspected, freeze the record, and notify law enforcement. The registrar may do this even if state law deems that the record must remain open. The law also requires that all certified copies of vital records have security features to detect alteration, counterfeiting, duplication, or simulation.
This column should not be construed as legal or legislative advice.