In the “Alice in Wonderland” world of employment law, one of the hard parts of an in-house lawyer’s job is telling an internal client that something that makes zero practical sense makes complete legal sense. For example, an employee may be able to turn over confidential company information and then prevail against that same company in an anti-retaliation or wrongful-discharge suit. Wait, what? Have courts really made such decisions? The answer is yes, many times.

Look at Sharon Randolph and Tami Thompson v. ADT Security Services Inc. out of the U.S. District Court for the District of Maryland. In its order the court sketched out the facts: Randolph and Thompson went to work for ADT selling home security services. They alleged ADT made promises to them regarding commissions and bonuses. When the promises were purportedly broken, they filed wage complaints with a state agency. But they attached client contracts to the complaints that contained confidential information, including customer names, addresses, phone numbers and payment information. Some of the information revealed the location of alarm panels and alarm passwords.

Why did the employees dole out this information? The state agency asked for any documents supporting their complaints. Here, the documents showed the work the employees performed and the accounts for which they were paid, so there was some logical connection between the request and the documents provided.

So, ADT got served with the complaints and the attachments, and fired Randolph and Thompson for violating a company rule requiring employees to keep customer information confidential. The two employees sued, claiming their terminations violated the anti-retaliation provision of the Fair Labor Standards Act, which prohibits retaliating against employees for filing a complaint with a state agency. Cross-motions for summary judgment were filed, and the plaintiffs won.

The court reasoned that the company admitted it fired them for filing the complaint and filing a complaint was “participating” in a government complaint process, therefore they were fired in unlawful retaliation. The reasonableness of the plaintiffs’ action did not matter, but that they “participated” and that an adverse employment action resulted did. It’s the same with Title VII.

Look at Henry Merritt, who worked for the Dillard Paper Co. A former receptionist sued Dillard alleging sexual harassment based on comments allegedly made by sales representative Merritt. The 11th U.S. Circuit Court of Appeals’ opinion in Henry Merritt v. Dillard Paper Co. revealed some of the details of Merritt’s deposition: He admitted to calling the receptionist a “bitch”; admitted “sharing” an article about oral sex with a female co-worker; said it was “possible” he asked the receptionist to feel his “nuts”; and when asked if he told her, “I love it when you talk mean to me,” he testified that it sounded “like something I could have said.” You get the idea.

The company president read Merritt’s deposition, told him the deposition harmed the company’s case and fired him.

George Santayana, in his introduction to “The Ethics of Spinoza,” wrote, “Perhaps the only true dignity of man lies in his capacity to despise himself.” But rather than regret his actions, Merritt litigated, claiming retaliation in violation of Title VII for “participating” in the receptionist’s Title VII suit. The 11th Circuit agreed, being bound by the literal language of the law, which prohibits retaliation because the employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”

By giving deposition testimony, even though subpoenaed to do so, Merritt participated. The appeals court further noted that it was irrelevant whether the testimony was intended to aid the plaintiff.

Not-So-Common Sense

In 2010, the New Jersey Supreme Court engaged in pointless hair-splitting in its opinion in Joyce Quinlan v. Curtiss-Wright Corp. The court summarized the facts: Quinlan, the executive director of human resources, had an ongoing discrimination suit against Curtiss-Wright. Her boss was about to be deposed in her suit. She thought her lawyer might want to look at his confidential performance review, a review that the boss himself had yet to see. Her lawyer used it at the deposition, she got fired for giving him a confidential document, she sued for retaliation under New Jersey law and she bingoed out with the jury. The Supreme Court said she got to keep the money. Why? Because the trial court submitted the correct jury charge. If the jury found that she was terminated for handing over the file, then she lost; by contrast, if the jury found that she was fired because the documents were used in the retaliation suit, then she won.

New Jersey is not alone. Take a look at the 6th U.S. Circuit Court of Appeals’ opinion in Kathy Niswander v. Cincinnati Insurance Co. , an appeal from a grant of summary judgment. Niswander worked for Cincinnati Insurance. She opted into a class action brought by another employee alleging a violation of the Equal Pay Act. She claimed that her employers treated her in an adverse manner after she opted in. She then received a letter from one of the plaintiffs’ lawyers in the class action asking for any documents in her possession that related to the Equal Pay Act claim or her employment or that showed she was treated less favorably than male employees. She looked around and sent off material that she thought dealt with her inchoate retaliation claim, and the class action lawyers turned those documents over to the company pursuant to a discovery request. (Side note: Around the time of the letters, she filed a charge of discrimination with the Equal Employment Opportunity Commission because she believed her employer ignored her retaliation claims.)

You know what happens next. The company found out that she had turned over confidential documents that dealt with claims and included sensitive customer data and Niswander got fired. She sued for retaliation, arguing that giving the documents to the lawyers was protected activity, both in opposition to unlawful discrimination and as participating in the Equal Pay Act suit. The appeals court affirmed summary judgment for the employer, because the documents she gave to her lawyers did not relate to the Equal Pay Act suit, only to her possible retaliation claim. Because of the disconnect, she did not engage in protected activity.

But — and here is the important point — the 6th Circuit said that if the documents were relevant, even indirectly, to the Equal Pay Act claim, then Niswander was engaged in protected activity and could not be fired for doing so. My opinion: Sue first and get the documents in discovery in a suit. That’s the time-honored way. It also is the way it should be.

But what should be isn’t always as it is. One of my favorite novels about the law is “A Frolic of His Own” by William Gaddis. Here is the opening: “Justice? You get justice in the next world, in this world you have the law.” I love that line. I also wince at its truth. The best that lawyers can do is recall Mark Twain’s sage advice that it isn’t what we don’t know that hurts us; it’s what we think is so that isn’t. So trudge on and keep looking for justice in this world, even though you’ll occasionally need to explain to a baffled client that something does not make sense, but it’s the law all the same.

This article first appeared in Texas Lawyer, a Legal affiliate.

Michael P. Maslanka is the managing partner of the Dallas office of Constangy, Brooks & Smith. He is board certifi ed in labor and employment law by the Texas Board of Legal Specialization. His podcasts and “Work Matters” blog can be found at
www.texaslawyer.com. His e-mail is mmaslanka@constangy.com