October News

Anti-Retaliation Statutes Do Not Give Employees a License to Engage in Misconduct, Even if Intended to Help Their Case

Two recent cases address the issue of how far an employee can go in seeking information that supports his or her case, even though such conduct might break a rule or violate a law.

The first case involved a nursing home in Oklahoma.  Plaintiff was a CNA and had been employed for 14 years.  She believed she had been discriminated against on the basis of race and age and filed a charge with the EEOC.  To bolster her case, she removed medication sheets and narcotics records of a resident from the Facility and provided them to the EEOC.  She took no steps to protect the resident's confidentiality.  Her purpose was to show that she had been disciplined for medical errors that were (according to the plaintiff) similar to errors committed by a younger, white employee who was not disciplined.  A year later, the Facility found out about the disclosure and terminated the plaintiff for violating Facility policy in providing unredacted medical information on a resident to a third-party without authorization or consent.  In addition to violating Facility policy, the plaintiff's conduct also violated state law against misappropriating a patient's property (medical records) without permission.  Plaintiff sued, claiming that she was fired in retaliation for filing a charge with the EEOC.  The lower court sided with the Facility, reasoning that plaintiff could have redacted the resident's name, could have obtained the resident's consent, or could have simply provided an affidavit laying out her theory.  The federal Court of Appeals held that the plaintiff's actions were protected because she was involved in a pending EEOC case.  However, since the Facility's response was "perfectly plausible" under the circumstances, it was plaintiff's burden to show that she was not terminated for violating Facility policy and there was no evidence of this in the record, so her claim ultimately failed.  Vaughn v. Epworth Villa, 2008 U.S. App. LEXIS 17674 (10^th Cir. 2008).

The second case also involved dismissal of a retaliation case due to the plaintiff employee's wrongful conduct.  In that case, another U.S. Court of Appeals upheld a lower court's ruling against an employee who surreptitiously recorded a meeting with two supervisors after she filed a sexual harassment complaint against a male co-worker.  While that investigation was proceeding, plaintiff's job performance continued to worsen (it had been poor in some respects prior to her complaint) and she was called to a meeting with two supervisors.  Thinking that the meeting had been called to discuss the sexual harassment complaint, plaintiff decided to tape record the meeting.  She did not tell the supervisors, however, and her tape recording of the meeting without their consent was a felony criminal offense in that state (which is also a criminal violation in Florida).  The employer found out about the taping and obtained a search warrant for the plaintiff's residence and car.  At first plaintiff lied to the search team and then admitted what she had done.  The employer fired the plaintiff, based in large part (performance also was advanced as a reason) on the surreptitious taping and her lying about it.  Plaintiff sued for retaliation, arguing that her activities were protected since they were designed to gather evidence of discrimination.  The Court disagreed, noting that "the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination."  Plaintiff failed to produce any evidence that the employer's reasons were bogus or that plaintiff was treated differently than another employee who engaged in the same type of misconduct.    Argyropoulos v. City of Alton, 2008 U.S. App. LEXIS 18330 (7^th Cir. 2008).