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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

WYNNWOOD DIVISION

___________________________________

Theodore McNally,

Plain t if f ,

Civil Action No. 10-X441-CIV-R v.

Hostram, Inc.,

Def end an t .

___________________________________/

Brief for Defendant

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Table of Contents

INDEX OF AUTHORITIES……………………………………………………….3

QUESTIONS PRESENTED……………………………………………………….4

STATEMENT OF JURISDICTION……………………………………………….4

STATEMENT OF FACTS…………………………………………………………5

SUMMARY OF THE ARGUMENT………………………………………………6

ARGUMENT……………………………………………………………………….8

I. THIS COURT SHOULD DENY PLAINTIFF‟S MOTION TO

QUASH AND REQUEST FOR PROTECTIVE ORDER WITH

RESPECT TO THE CHARLESTON SUBPOENA BECAUSE THE

AFTER-ACQUIRED EVIDENCE DEFENSE CAN APPLY TO

POST TERMINATION MISCONDUCT. …………………………...8

II. THIS COURT SHOULD GRANT DEFENDANT‟S MOTION FOR

EXPEDITED DISCOVERY AND SUMMARY JUDGMENT WITH

RESPECT TO PLAINTIFF‟S UNAUTHORIZED TAKING OF

CONFIDENTIAL DOCUMENTS BECAUSE PLAINTIFF‟S

ACTIVITY WAS NOT PROTECTED, ATERMINABLE OFFENSE,

AND THE BASIS OF HOSTRAM‟S AFTER-ACQUIRED

EVIDENCE DEFENSE……………………………………………..12

A. Hostram Has Legitimate and Substantial Interests in Running a

Business, Including Maintaining Confidentiality, While Plaintiff

Does Not Have a Substantial Interest in Disseminating the

Document as a Means to Promote His Own Welfare. …………..14

B. Plaintiff‟s Conduct Was Not Reasonable Under the Circumstances

When Plaintiff Removed and Disseminated a Confidential

Company Document Plaintiff Took From Trash. ………………17

CONCLUSION…………………………………………………………………...22

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Index of Authorities

Cases

McKennon v. Nashville Banner Publ’g. Co, 513 U.S. 352 (1995)…………8-10, 12

Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222 (1st

Cir. 1976) …………………………………………………………………………13

Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368 (1st Cir. 2004)………….11

Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072 (3d Cir. 1995)………………..9

Jefferies v. Harris County Community Action Assoc., 615 F.2d 1025 (5th Cir.

1980)…………………………………………………………………...13-16, 18-19

Niswander v. Cincinnati Insurance Co., 529 F.3d 714 (6th Cir. 2008)…..17, 18, 21

Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998)…………………….13, 18

Kucia v. S.E. Ark. Cmty. Action Corp., 284 F.3d 944 (8th Cir. 2002)……………11

Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002)…………………………11

Sellers v. Mineta, 358 F.3d 1058 (8th Cir. 2004)……………………………...10-12

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996)…16, 20

Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999)………………10, 12

Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001)………………….12

Rollins v. Florida Dept. of Law Enforcement, 868 F.2d 397 (11th Cir. 1989)……14

U.S. v. McWhirter, 376 F.2d 102 (11th Cir. 1967)…………………………………8

Fogg v. Gonzales, 407 F.Supp.2d 79 (D.D.C. 2005)……………………………...11

Abernathy v. Walgreen Co., 836 F.Supp. 817 (M.D. Fla. 1992)………14-15, 18-19

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Cohen v. Gulfstream Training Academy, Inc., 2008 WL 961472 (S.D. Fla.)…….12

McKenna v. City of Philadelphia, 636 F.Supp.2d 446 (E.D.Pa. 2009) …………..11

Smyth v. Wawa, Inc., 2008 WL 741036 (E.D.Pa.)………………………………..11

Statutes

29 U.S.C. § 623(d)………………………………………………………………...13

Questions Presented

I. Whether the after-acquired evidence defense can apply to post termination

misconduct in an age discrimination suit against a former employer.

II. Whether an employee‟s acquisition of an office document can be the basis

for the after-acquired evidence defense in an age discrimination lawsuit against a

former employer.

Statement of Jurisdiction

This case was filed in the Unites States District Court of the Middle District

of Florida, Wynnwood Division, pursuant to the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”). The motions to be decided

are the following: (a) plaintiff‟s motion to quash and for a protective order to

prevent defendant from obtaining plaintiff‟s personnel records from Charleston

Industries, and (b) defendant‟s motion for expedited discovery and summary

judgment schedule with respect to plaintiff‟s unauthorized taking of confidential

company documents.

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Statement of Facts

Defendant Hostram, Inc. (“Hostram”) is a lobbying firm that primarily offers

political consulting service to large, agricultural companies. On February 8, 2010,

Hostram terminated plaintiff Theodore McNally (“plaintiff”) who worked for

Hostram as a lobbyist. Plaintiff subsequently went on to work as a lobbyist for

Charleston Industries (“Charleston”); yet, plaintiff only remained with Charleston

for a total of four months by reason of a “mutual decision” between plaintiff and

Charleston. At this time, plaintiff had already brought suit against Hostram, on

May 3, 2010, alleging Hostram violated the federal Age Discrimination in

Employment Act, 28 U.S.C. §§ 621 et seq. (“ADEA”), when Hostram allegedly

fired plaintiff because of his age. Hostram learned of the “mutual decision” end to

plaintiff‟s employment with Charleston through plaintiff‟s response to

interrogatories. In lieu of the new information, Hostram served Charleston a

subpoena to discover plaintiff‟s personnel file, including documents relevant to the

reasons for plaintiff‟s leaving Charleston, and to depose plaintiff‟s Charleston

supervisor. A motion to quash the subpoena was filed by plaintiff.

Also subsequent to plaintiff‟s termination, Hostram learned plaintiff removed

confidential documents containing personnel information from Hostram and

showed the document to a Hostram employee. Plaintiff maintains he found the

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document in an open trash bin at Hostram and took the document because he

sought to preserve what he thought to be evidence of age discrimination. The

document contained employee names, years of service, which plaintiff claims was

used as a proxy for age, and a Hostram supervisor‟s handwritten notes. Neither of

plaintiff nor the Hostram employee were authorized to view the document, and

Hostram contends plaintiff showed the employee for the sole purpose of getting the

employee to join plaintiff‟s lawsuit. The behavior was wrongful and because the

behavior would have resulted in termination if plaintiff were still employed by

Hostram, Hostram moves for expedited discovery and summary judgment.

Summary of Argument

Hostram asks this court to deny the plaintiff‟s motion to quash and request

for protective order concerning the Charleston subpoena. Hostram claims that the

information surrounding the plaintiff‟s termination from Charleston is necessary to

pursue their after-acquired evidence defense. Although plaintiff maintains that

misconduct that occurs post termination cannot serve as a basis for the after-

acquired evidence defense, the policy objectives advanced by the Supreme Court

in recognizing the defense would be furthered by allowing extension to post

termination misconduct. Furthermore, other circuits have established that the

after-acquired evidence defense can apply to post termination misconduct, and the

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Eleventh Circuit has recognized and applied some of those cases. As such, the

plaintiff‟s motion to quash and request for protective order should be denied.

Hostram also asks this court to grant Hostram‟s motion for expedited

discovery and summary judgment regarding Hostram‟s after-acquired evidence

affirmative defense because plaintiff engaged in terminable behavior while

employed by Hostram, while unknown to Hostram at the time. Hostram‟s damages

in this discrimination suit should be mitigated because under current law damages

will be mitigated where an employer discovers post termination that plaintiff

employee engaged in terminable behavior prior to termination. Although plaintiff

contends his taking of confidential documents and further dissemination constitute

“protected behavior,” such behavior is not “protected.” When an employee

engages in misconduct while opposing discrimination, that employee‟s behavior is

protected from retaliatory termination so long as the employee‟s interests outweigh

those of the employer and the employee‟s behavior was “reasonable in light of the

circumstance.” Here, Hostram‟s interests in “confidentiality” far outweigh those of

the plaintiff because Hostram has a “right to run [its] business,” plaintiff‟s behavior

was unreasonable, and Hostram would have fired plaintiff had it known of the

misconduct when it occurred. As such, plaintiff‟s misconduct in taking and

disseminating confidential information can be the basis for Hostram‟s after-

acquired evidence defense in the ongoing age discrimination lawsuit.

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Argument

I. THIS COURT SHOULD DENY PLAINTIFF’S MOTION TO QUASH

AND REQUEST FOR PROTECTIVE ORDER WITH RESPECT TO THE

CHARLESTON SUBPOENA BECAUSE THE AFTER-ACQUIRED

EVIDENCE DEFENSE CAN APPLY TO POST TERMINATION

MISCONDUCT.

The plaintiff requests that this court issue a protective order barring

discovery of information surrounding his termination from Charleston. Because

the subpoenaed information is pertinent to Hostram‟s after-acquired evidence

defense, the plaintiff‟s request should be denied. See U.S. v. McWhirter, 376 F.2d

102, 106 (11th Cir. 1967) (“The discovery provisions of the Federal Rules of Civil

Procedure were designed to afford the parties the right to obtain information

pertinent to the pending controversy, and to effectuate that purpose they are to be

liberally construed.”)

It is well established that when an employer is sued for discriminatory

termination, and evidence of employee misconduct while working for the employer

is revealed during the discovery phase of the lawsuit, the employer may mitigate

damages. This is more commonly known as the after-acquired evidence defense,

laid out by the Supreme Court in McKennon v. Nashville Banner Publ’g. Co, 513

U.S. 352 (1995). In McKennon, the Court found that evidence of employee

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misconduct made neither reinstatement, nor front pay, an appropriate remedy for

discriminatory termination and that any back pay should be limited from the date

of the unlawful discharge to the date the new information was discovered. Id. at

361-362. However, to effectively assert this defense, the employer must show that

the conduct would have led to the employee‟s termination had the employer been

aware of the conduct. Id. at 362-363. Here, Hostom cannot demonstrate that any

misconduct of the plaintiff would be a terminable offense absent the subpoenaed

information.

The plaintiff claims that post termination misconduct is too attenuated from

the employment relationship to be eligible for the after-acquired evidence defense.

As such, the plaintiff argues that a protective order should be issued, barring

discovery of the reasons behind his termination from Charleston. Although

McKennon specifically involved misconduct that occurred during employment, the

policy arguments advanced by the Court suggest that the holding is not limited to

these particular facts, but also extends to post termination misconduct. See

Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1074 n.4 (3d Cir. 1995)

(“Supreme Court did not limit the general principles articulated in McKennon to

cases involving on-the-job misconduct, instead using the broader term

„wrongdoing.‟”). The purpose of the after-acquired evidence defense is not to

punish the employee‟s misconduct, but rather, to take account of the lawful

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prerogatives of the employer. McKennon, 513 U.S. at 361. As explained by the

Court, “[i]t would be both inequitable and pointless to order the reinstatement of

someone the employer would have terminated, and will terminate, in any event and

upon lawful grounds.” Id. at 362. This principle would hold true regardless of

whether the conduct occurred during or post employment. Either way, it would be

illogical to require reinstatement of an employee who has engaged in conduct for

which the employer could lawfully terminate the employee immediately upon

reinstatement. Discovery of the subpoenaed information is therefore essential and

pertinent because, without it, Hostom will be unable to determine if the plaintiff

engaged in misconduct that will bar his reinstatement.

Only two courts of appeals have specifically addressed the question of

whether the after-acquired evidence rule can apply to post termination conduct of

the employee. Both the Eighth and Tenth Circuits have found that in certain cases

post termination conduct can limit a plaintiff‟s remedies. See Sellers v. Mineta,

358 F.3d 1058, 1063 (8th Cir. 2004) (we cannot establish a bright-line rule and

foreclose the possibility that a…plaintiff‟s post-termination conduct may, under

certain circumstances, limit the remedial relief available to the plaintiff.”);

Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir. 1999) (“…[W]e do

not foreclose the possibility that in appropriate circumstances the logic of

McKennon may permit certain limitations on relief based on post-termination

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conduct….”). In Sellers the court reasoned that post termination misconduct that

would preclude reinstatement should also disqualify the employee from front pay.

Sellers, 358 F.3d at 1063-64. According to the court, front pay is a disfavored

remedy awarded in lieu of reinstatement, where certain circumstances make

reinstatement impractical or impossible. Id. citing Salitros v. Chrysler Corp., 306

F.3d 562, 572 (8th Cir. 2002) (finding front pay a disfavored remedy); Kucia v.

S.E. Ark. Cmty. Action Corp., 284 F.3d 944, 949 (8th Cir. 2002) (finding

reinstatement should be the norm and front pay an exceptional remedy); see also

Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 380 (1st Cir. 2004)

(finding front pay should only be awarded where reinstatement impracticable or

impossible). It would be inequitable for a plaintiff to be able to recover front pay

where the plaintiff‟s own misconduct prohibits the traditional, preferred remedy of

reinstatement. See Sellers, 358 F.3d at 1064. Other courts have also found that

post termination misconduct can limit available remedies. See Fogg v. Gonzales,

407 F.Supp.2d 79, 91-93 (D.D.C. 2005) (denying front pay where plaintiff‟s post

termination misconduct would have resulted in dismissal if still employed);

McKenna v. City of Philadelphia, 636 F.Supp.2d 446, 464 (E.D.Pa. 2009) (finding

post termination misconduct can cut off an award of back pay in appropriate

circumstances); Smyth v. Wawa, Inc., 2008 WL 741036 (E.D.Pa.) (finding post

termination conduct relevant in determining front pay).

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While the Eleventh Circuit has not directly ruled on this issue there is

evidence to suggest that post termination conduct can be a relevant inquiry. See

Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001) (affirming district

court application of McKennon to vacate backpay and reinstatement of police

officer where officer‟s certification suspended post termination); see also Cohen v.

Gulfstream Training Academy, Inc., 2008 WL 961472 n.1 (S.D.Fla.) (court relying

on Sellers and Medlock in affirming ruling by Magistrate Judge Seltzer that

evidence of post termination actions were discoverable). Because the rationale for

applying the after-acquired evidence rule to post termination conduct is consistent

with McKennon, and there is some indication that cases within the Eleventh Circuit

have recognized this potential application, the plaintiff‟s motion to quash and

request for protective order should be denied.

II. THIS COURT SHOULD GRANT DEFENDANT’S MOTION FOR

EXPEDITED DISCOVERY AND SUMMARY JUDGMENT WITH

RESPECT TO PLAINTIFF’S UNAUTHORIZED TAKING OF

CONFIDENTIAL DOCUMENTS BECAUSE PLAINTIFF’S ACTIVITY

WAS NOT PROTECTED, ATERMINABLE OFFENSE, AND THE BASIS

OF HOSTRAM’S AFTER-ACQUIRED EVIDENCE DEFENSE.

Hostram moves for expedited discovery and summary judgment because

Plaintiff engaged in a terminable offense, which forms the basis for an after-

acquired evidence affirmative defense. It is an undisputed matter of law that an

employer may assert the after-acquired evidence defense mitigating damages when

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subsequent to termination the employer is made aware of plaintiff employee‟s

terminable offense engaged in during employment. See McKennon v. Nashville

Banner Publ’g Co., 513 U.S. 352, 362—63 (1995). When plaintiff removed a

confidential document from a Hostram trash bin, kept the document, and

disseminated the document to another co-worker while employed by Hostram,

plaintiff committed a terminable offense during employment at Hostram. Plaintiff

contends the conduct was not a terminable offense but constituted a protected

activity under section 623(d) of the ADEA. See 29 U.S.C. § 623(d) (“It shall be

unlawful for an employer to discriminate against any of his employees . . . because

such individual . . . has opposed any practice made unlawful by this section[.]”)

Yet, “not all „opposition‟ activity is protected,” and, here, plaintiff‟s conduct was

not “protected.” See Jefferies v. Harris County Community Action Assoc., 615 F.2d

1025 (5th Cir. 1980); see also Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th

Cir. 1998). When determining whether an activity is protected this court takes into

account two elements: (1) the balance between “the employer‟s right to run his

business” and “the rights of the employee to express his grievances and promote

his own welfare”; and (2) the “reasonableness” of the employee conduct “in light

of the circumstances.”1 See Jefferies, 615 F.2d at 1036 (5th Cir. 1980) (quoting

Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 233

1Eleventh Circuit looks to and adopts the balancing test set out by the Fifth Circuit

in Jefferies.

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(1st Cir. 1976)); Abernathy v. Walgreen Co., 836 F.Supp. 817, 820 (M.D. Fla.

1992); see also, Rollins v. Florida Dept. of Law Enforcement, 868 F.2d 397, 401

(11th Cir. 1989). If a plaintiff‟s interests in “promot[ing] his own welfare”

outweighed the employer‟s “right to run [its] business,” and plaintiff‟s conduct was

“reasonable,” then the plaintiff may remove materials to assist in the

discrimination claim. However, plaintiff‟s behavior here was not reasonable and

plaintiff‟s interests in “promot[ing] his own welfare” were not pursued in a manner

outweighing the legitimate confidentiality interests of Hostram.

A. Hostram Has Legitimate and Substantial Interests in Running a Business,

Including Maintaining Confidentiality, While Plaintiff Does Not Have a

Substantial Interest in Disseminating the Document as a Means to Promote His

Own Welfare.

Here, Hostram‟s interest in confidentiality is legitimate and substantial

because Hostram seeks to maintain a functional work environment. Employers

have a right “to run [their] business”; therefore, when an employer abides by a

policy of confidentiality, the employer is said to have a “legitimate and substantial

interest in keeping its personnel records and agency documents confidential.”

Jefferies, 615 F.2d at 1036 (not stating whether a confidentiality policy is a

prerequisite to a finding of legitimate and substantial interest in confidentiality);

Abernathy, 836 F.Supp at 820; see also, Rollins, 868 F.2d at 401 (considering a

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Title VII allegation of discrimination, and noting an employer may have

“legitimate demands for loyalty, cooperation and a generally productive work

environment”).

In Abernathy, the court found defendant employer, Walgreens company, had

a legitimate and substantial interest in the confidentiality of personnel documents

in particular. See Abernathy, 836 F.Supp at 820; see also, Jefferies, 615 F.2d at

1036 (finding defendant employer “clearly” had a legitimate and substantial

interest in confidentiality of both personnel records, agency documents, or records

generally). Like the employers in Abernathy and Jefferies, Hostram “clearly” has a

legitimate and substantial interest in keeping confidential an agency document

containing personnel information because Hostram like any other company seeks a

generally productive work environment. Hostram, here, also has a greater interest

in the confidentiality of its supervisors notes, because according to company policy

neither plaintiff nor his fellow co-worker were authorized to view.

Plaintiff, here, had no legitimate interest in removing what looked to be a

document belonging to plaintiff‟s supervisor with a list of names and years of

service or in disseminating the document to a fellow employee. When assessing

plaintiff‟s interests in opposing an employer‟s unlawful practice, courts have taken

into account whether the plaintiff had an urgent need to preserve the document in

its entirety or to disseminate the document. See Abernathy, 836 F.Supp at 820—21.

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In Jefferies, plaintiff copied a new hire‟s personnel record which plaintiff

believed proved discrimination because employer hired another rather than

granting plaintiff the once vacant position. See Jefferies, 615 F.2d at 1029. The

court in Jefferies held plaintiff‟s interest in opposing perceived discrimination by

copying the document and disseminating personnel documents to people within the

company did not outweigh defendant employer‟s interest because plaintiff had “not

shown any need for surreptitious copying and dissemination” when plaintiff had

not established the evidence would be destroyed if not preserved. See id. at 1036.

The plaintiff in O’Day was found to have a legitimate interest in preserving

evidence of unlawful employment practices because the plaintiff was aware that

company documents were periodically destroyed, but plaintiff did not have a

legitimate explanation for showing his co-worker the document. O’Day v.

McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). Like

plaintiffs with an interest in proving discrimination in Jefferies and O’Day,

plaintiff has an interest in proving discrimination if it exists, but has not shown a

substantial interest in both taking and disseminating the document. Plaintiff has not

offered any evidence indicating the document would be destroyed, that the

information contained in the document could not be found elsewhere, or that

plaintiff had a need to show his co-worker the document in order to oppose the

allege unlawful practice.

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Therefore, Hostram‟s legitimate and substantial interest in maintaining

confidentiality per Hostram‟s right to “run [their] business” “clearly” outweighs

plaintiff‟s interest in taking a Hostram document and showing another co-worker,

also unauthorized, when the document was not proof of discrimination at the time

it was found by then employed plaintiff.

B. Plaintiff‟s Conduct Was Not Reasonable Under the Circumstances When

Plaintiff Removed and Disseminated a Confidential Company Document Plaintiff

Took From Trash.

Plaintiff‟s actions do not constitute “protected activity” because plaintiff‟s

behavior was not reasonable in light of the circumstances. When assessing

“reasonableness” courts have considered the following, none of which are

dispositive and all need not be present: (a) whether the documents were innocently

acquired, (b) whether the documents were subsequently misused, or disseminated

to anyone other than plaintiff, (c) what the documents contained, and whether the

contents were confidential or related to the plaintiff‟s claim of discrimination, (d)

whether plaintiff could have preserved the evidence in a manner that would not

violate employer confidentiality, and (e) the severity of the confidentiality breach.

See Niswander v. Cincinnati Insurance Co., 529 F.3d 714, 726 (6th Cir. 2008)

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(detailing six factors the Sixth Circuit finds particularly relevant in determining

reasonableness); Jefferies, 615 F.2d at 1036; Abernathy, 836 F.Supp at 820—21.

Plaintiff‟s activity in Niswander did not constitute protected activity because

plaintiff did not “innocently stumbl[e] upon evidence” but specifically searched

through the documents in her possession and exposed confidential information

when plaintiff could have preserved the memory-jogging events in other ways.

Niswander, 529 F.3d at 726—28. The plaintiff in Niswander did not innocently

acquire the evidence, and neither did the plaintiff here. Innocent acquisition is best

characterized by the situation in Kempcke where the plaintiff came across the

evidence inadvertently when using plaintiff‟s employer-issued computer.

Kempcke, 132 F.3d at 446. The court found the document was innocently acquired

because it was “akin to the employee who is inadvertently copied on an internal

memorandum, or who discovers a document mistakenly left in an office copier.”

Id. at 446 (emphasis added). Here, plaintiff did not inadvertently stumble upon the

personnel document, but instead physically removed a crumpled document from a

trash bin. The location of the document plaintiff retrieved was clearly not intended

for plaintiff‟s view, and was not left out in the open by mistake, which lends to the

unreasonableness of plaintiff‟s actions.

Plaintiff‟s activity was unreasonable and not protected because plaintiff

disseminated confidential documents, which constitutes subsequent misuse even if

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innocently acquired. As previously discussed, the plaintiff in Jefferies copied

personnel documents of a new hire along with other personnel materials and sent it

to the chairman of personnel committee and a member of the board of directors,

both within the organization. See Jefferies, 615 F.2d at 1029. Ultimately, the

Jefferies court found the behavior was not protected in part because the plaintiff

had not shown any need for dissemination. See id. at 1036. In Abernathy, the court

found plaintiff‟s behavior was not protected because sending confidential

documents to twelve people within and six people outside of the organization

constituted more egregious behavior than found in Jefferies. See Abernathy, 836

F.Supp at 820—21. Here, the court need not find plaintiff‟s behavior was as severe

as the behavior in Abernathy since Jefferies is the threshold case most related to

the form of behavior in this case. See generally, Jefferies, 615 F.2d 1025. Like the

gathering and dissemination of confidential documents in Jefferies, plaintiff here

physically took a confidential document not belonging to plaintiff. But unlike

authorized viewers Jefferies, plaintiff showed a co-worker not authorized to view

the document. Therefore, plaintiff‟s behavior was more egregious than the

behavior found unprotected in Jefferies because the co-worker plaintiff showed

was not even a higher-level company member to whom it may have been more

reasonable to show when seeking redress.

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Plaintiff‟s taking of the confidential document was unreasonable and should

not be found to be a protected activity because plaintiff had no need for the

document at the time when plaintiff was still employed at Hostram. Terminable

behavior is not likely to be found “protected” when the object of the violation does

not indicate proof of plaintiff‟s claim at the time the document was found. O’Day,

79 F.3d at 763. In O’Day, the court found plaintiff‟s taking of a document

indicating lay offs was not reasonable behavior because, at the time, plaintiff had

only been denied a promotion and the document did not evidence discrimination in

promotion decisions. See id. at 763 (holding behavior not protected under the

policy that “[the court is] loathe to provide employees an incentive to rifle though

confidential files looking for evidence that might come in handy in later

litigation”). The case, here, is exactly analogous to O’Day because like the O’Day

plaintiff who preserved the lay-off evidence in case plaintiff was ever fired, here,

plaintiff took the document allegedly indicating a pattern of age discrimination at a

time when plaintiff still worked for Hostram and had not yet been fired. Therefore,

plaintiff‟s actions were not reasonable given the contents of the confidential

document were of no use to plaintiff in building his case against Hostram for age

discrimination.

Plaintiff could have preserved the information in a way that would not have

violated Hostram‟s confidentiality policy, but plaintiff did not choose an

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alternative method, which was unreasonable in light of the circumstances. In

Niswander, the plaintiff gave her attorney confidential documents which were used

to do “nothing more than jog her memory about incidents.” See Niswander, 529

F.3d at 727. The Niswander court held the behavior was not a protected activity

because “producing confidential documents for the sole purpose of jogging one‟s

memory, when there are readily available alternatives to accomplish the same goal,

does not constitute the kind of reasonable opposition activity that justifies violating

a company‟s policy.” See id. The case here, similar to Niswander, involves the

unnecessary taking of company documents. Here, the stolen document only

indicated names, years of service, and notes allegedly handwritten by plaintiff‟s

supervisor. While handwritten notes by a supervisor is probative to prove a single

supervisor may have took part in age discrimination, such information is only

probative if the notes themselves contain evidence of discrimination. Because the

notes only indicated years of service, which could be garnered through the correct

channels of discovery, plaintiff had no need to take the original document. Just like

the plaintiff in Niswander could have taken notes to preserve her own memory of

particular incidents, here, plaintiff could have asked plaintiff‟s fellow employees

how long they had been with Hostram, or could have requested the information

through proper discovery channels.

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Therefore, plaintiff‟s conduct was not “protected activity” because plaintiff‟s

interests do not outweigh those of Hostram, and plaintiff‟s conduct was not

reasonable.

Conclusion

For the reasons stated above, defendant respectfully requests this court deny

plaintiff‟s motion to quash and for a protective order, and grant defendant‟s motion

and for expedited discovery and summary judgment.

Respectfully submitted this 17th

day of September, 2010.

Attorneys for the Defendant,

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