Quinlan v. Curtiss-Wright Corp.

¶1dissenting.

¶2Today’s ruling sends a disturbing signal to both the business community and the bar that employee theft may actually pay. In this case, during a deposition, Curtiss-Wright Corporation learned that plaintiff—'who had an ongoing lawsuit against the company— was continuing to steal (photocopy) confidential documents while retaining her position of trust in the company. Curtiss-Wright discharged plaintiff for the theft of a document used during the deposition. Plaintiff alleged that her firing was an unlawful act of retaliation in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-12(d). The majority now holds that Curtiss-Wright could rightfully fire plaintiff for the wrongful taking of the documents, but could be held liable if a jury found—as it did—that the firing was for plaintiffs use of the document in the deposition. The hair-splitting distinction made by the majority'—in the circumstances here—reaches a level of abstraction that defies ordinary understanding.

¶3*278From 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.

¶4I.

¶5These are the facts that lead me to dissent from the majority’s holding on the retaliation claim. Plaintiff, the Executive Director of Human Resources at Curtiss-Wright, filed a civil action against her employer, claiming that the company had failed to promote her based on gender discrimination. Before filing the lawsuit, plaintiff photocopied more than 1800 confidential documents containing sensitive personal information about other employees, such as social security numbers, home addresses, and phone numbers. She delivered those documents to her attorney. After commencing her discrimination action against Curtiss-Wright, plaintiff remained in her trusted position as human resources director. Playing by the rules of discovery, plaintiffs attorney disclosed to Curtiss-Wright that he had possession of those 1800-plus, earlier-photocopied documents. Plaintiff was not fired. Indeed, after the disclosure plaintiff still received her regularly scheduled pay raise.

¶6Nevertheless, in disregard of company policy, plaintiff did not stop copying confidential documents. Indeed, she surreptitiously copied the personal evaluation of her supervisor, Kenneth Lewis, and handed it over to her attorney even as he was requesting documents from Curtiss-Wright through the proper channels of the discovery process. Plaintiffs attorney accepted the ill-gotten document without advising Curtiss-Wright of his acquisition. Curtiss-Wright learned that the theft of documents continued during the deposition of Kenneth Lewis when plaintiffs attorney *279ambushed the unwary witness.1 At that deposition, plaintiffs attorney pulled out the purloined confidential evaluation of Lewis—an evaluation Lewis had never seen himself—and cross-examined Lewis using the document. The surprised Curtiss-Wright attorney reported back to the company that plaintiff continued to remove confidential documents without authorization.

¶7Knowing that plaintiff persisted in using her position as a human resource director to misappropriate confidential documents in disregard of company policy, Curtiss-Wright discharged her. Plaintiff filed a retaliation claim against Curtiss-Wright under the LAD, N.J.S.A 10:5-12(d). She contended, among other things, that the use of the purloined Lewis evaluation at the deposition was protected activity, that Curtiss-Wright fired her as a result of her attorney’s legitimate use of the document in violation of the LAD, and that she was entitled to money damages.

¶8The trial court charged the jury that, on the one hand, CurtissWright could legitimately fire plaintiff for the wrongful taking of the confidential documents, in particular the Lewis evaluation. On the other hand, the court told the jury that if Curtiss-Wright fired plaintiff because the filched documents were used in the discrimination lawsuit, then the company engaged in wrongful retaliation in contravention of the LAD. Specifically with regard to the Lewis evaluation, the court never explained to the jury how it was to determine whether Curtiss-Wright fired plaintiff over the wrongful taking of the document as opposed to the use of the document. After all, Curtiss-Wright only learned of the taking of the document when it was used. To be clear, the jury was told that it could find that Curtiss-Wright engaged in unlawful retaliation if it concluded that plaintiffs firing was prompted by the use of the Lewis evaluation.

¶9*280The jury rendered a verdict against Curtiss-Wright on the discrimination and retaliation claims and awarded substantial monetary damages to plaintiff. The Appellate Division reversed and ordered a new trial on the retaliation claim. Quinlan v. Curtiss-Wright Corp., 409 N.J.Super. 193, 211, 218, 976 A.2d 429 (App.Div.2009).

¶10The appellate panel held that the illicit copying of confidential documents—a dischargeable event—was not transformed into protected activity when one of those documents was used in the Lewis deposition. Id. at 208, 976 A.2d 429. In the panel’s view, the trial court’s approach “could have the undesirable result of encouraging employees to go through their employers’ files and copy confidential material, secure in the knowledge that employers could do nothing so long as that material was later used in litigation.” Id. at 208-09, 976 A.2d 429. The trial court’s flawed “metaphysical” distinction between the taking of the documents and their use in the litigation required the reversal of the retaliation verdict. Id. at 209-11, 976 A.2d 429.

¶11II.

¶12A majority of this Court has now reversed the Appellate Division, blessing the jury charge that the panel found fatally flawed. I respectfully dissent because the majority’s test, particularly as applied in this case, may encourage unscrupulous behavior. It also may leave a business powerless to discharge a disloyal employee—unless, of course, the business is willing to play Russian roulette with its fortunes before a jury. Moreover, the opinion sends the wrong message to the bar: lawyers should not in any way signal to a client that stealing documents is an acceptable substitute for the discovery process. Although plaintiff had the right to demand the production of documents from Curtiss-Wright, she did not have the right to bypass that process by stealing documents from her employer during the litigation.

¶13To prove an act of unlawful retaliation under the LAD, N.J.S.A. 10:5-12(d), a plaintiff must prove several essential elements, in-*281eluding that she engaged in a protected activity and that her participation in the protected activity caused the retaliation. See Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125, 961 A.2d 1167 (2008). Plaintiffs taking of documents in this case was not protected activity. She abused her high-ranking position in the company to convey hundreds of pages of confidential documents— containing highly personal information about her coworkers—to her attorney, and continued to do so even after she had filed her suit. As with the other documents, the Lewis evaluation was entrusted to plaintiff as part of her job in the Human Resources Department. It is true that plaintiff was a victim of gender discrimination—a point not challenged here by Curtiss-Wright. That, however, did not give her a right to engage in untoward self-help and misconduct and then to seek shelter under the LAD’s anti-retaliation provision.

¶14I agree with the Appellate Division that the trial court’s theoretical distinction between the taking of the Lewis document (unprotected activity) and the use of that document (protected activity) was not a practical one that a rational jury could make. The logic of the trial court’s distinction—at least with respect to the Lewis evaluation—is that plaintiff benefited by laundering the wrongfully taken document through the deposition. In the circumstances of this case, it cannot be that the wrongful acquisition of the document is bleached clean because plaintiffs attorney surprised everyone by using it at the Lewis deposition. Moreover, because Curtiss-Wright learned of the theft of the Lewis evaluation at the deposition, the taking and the use were inextricably intertwined. How could a rational jury conclude that Curtiss-Wright fired plaintiff not because of the taking of the Lewis document, but only because of its use?

¶15The other troubling aspect of this affair is that plaintiffs attorney accepted the illicitly taken Lewis evaluation instead of returning it to Curtiss-Wright. At the time of the receipt of that document, plaintiffs attorney had an outstanding discovery request for documents related to Lewis. Presumably, plaintiff could *282have obtained the documents the old-fashioned way—through the lawful process of discovery. Then, Curtiss-Wright would have been on notice of the company’s documents in plaintiffs possession. Plaintiffs attorney, however, laid in wait with the pirated document, springing the ultimate surprise at deposition. This is not conduct that our Court should be encouraging.

¶16The right and wrong of what happened here is quite simple to me. I am not suggesting that in other circumstances, before the onset of litigation, an employee might not be justified in photocopying a document that clearly indicates that the employer was engaged in illegal conduct. Turning that document over to an appropriate authority may be classic whistle-blowing activity. I also am not suggesting that even after the initiation of litigation an employee may not have the right to preserve a document that he or she reasonably believes an employer is about to destroy or alter. A test to balance the competing interests of an employee and employer and the public good, I concede, may well be required under those circumstances. I see no need to adopt the complex test that the majority has crafted in this very straightforward ease. This case calls for a narrow ruling that employers, employees, and the public will understand.

¶17In my opinion, after filing suit, the theft of documents by an employee entrusted with personnel files is intolerable when the employee has at her disposal the machinery of our civil-discovery process and has no reason to fear that the employer will conceal or destroy relevant documents or evidence. If the theft of the documents is a lawful basis for discharge, then plaintiff should not benefit by a shield of immunity because she rushed to use the documents in a deposition.

¶18III.

¶19I would affirm the judgment of the Appellate Division reversing plaintiffs verdict on the retaliation claim and remand for a new trial. Neither the illicit taking nor the exploitative use of the Lewis evaluation was protected activity under the LAD. The theft *283of the document and the use at the deposition were hopelessly intertwined, and no rational distinction could be made between the two. Therefore, Curtiss-Wright had a legitimate ground to discharge plaintiff for the taking or the use of the document based on breach of trust and disloyalty. I therefore respectfully dissent.

¶20For reversal—Chief Justice RABNER and Justices LONG, WALLACE, RIVERA-SOTO and HOENS—5.

¶21For affirmance—Justices LaVECCHIA and ALBIN—2.