RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0221p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
KATHY NISWANDER,
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No. 07-3738
v.
,
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THE CINCINNATI INSURANCE COMPANY, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 06-01086—George J. Limbert, Magistrate Judge.
Argued: April 22, 2008
Decided and Filed: June 24, 2008
Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Jerome T. Linnen, Jr., Akron, Ohio, for Appellant. Deborah S. Adams, FROST
BROWN TODD LLC, Cincinnati, Ohio, for Appellee. ON BRIEF: Jerome T. Linnen, Jr., Akron,
Ohio, for Appellant. Deborah S. Adams, Jack B. Harrison, FROST BROWN TODD LLC,
Cincinnati, Ohio, for Appellee.
GILMAN, J., delivered the opinion of the court, in which ROGERS, J., joined.
McKEAGUE, J. (p. 14) delivered a separate concurring opinion and GILMAN, J. (p. 15) delivered
a separate concurring opinion in response to Judge McKEAGUE’S writing.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. This case requires us to address the scope of
protection that should be afforded to employees who disseminate confidential documents in
violation of their employer’s privacy policy in the context of employment-related litigation. In
December of 2005, Kathleen Niswander’s employment with The Cincinnati Insurance Company
(CIC) was terminated after CIC learned that Niswander had delivered confidential, proprietary
documents to her lawyers in a class-action lawsuit against CIC. She was fired for breaching the
company’s Privacy Policy and Code of Conduct. This caused Niswander to file a separate lawsuit
against CIC, alleging retaliation under the Equal Pay Act (EPA) and Title VII of the Civil Rights
Act of 1964 (Title VII).
1
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The parties filed cross-motions for summary judgment, after which the district court granted
CIC’s motion. Niswander now appeals from that decision, arguing that because she delivered the
documents in question at the request of her attorneys in the class-action lawsuit, her actions were
protected activity for which she could not be fired under the EPA and Title VII. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
From March of 1996 until she was terminated in December of 2005, Niswander was
employed as a claims adjuster for CIC. She worked from her home during her entire tenure with the
company. In December of 2000, a class-action lawsuit was initiated by Arlene Rochlin (the Rochlin
lawsuit), alleging that CIC had discriminated against women in violation of Title VII, 42 U.S.C.
§ 2000(e) et seq., and the EPA, 29 U.S.C. § 206(d). Niswander opted-in to the Rochlin lawsuit in
December of 2003.
According to Niswander, her supervisor Richard Baldwin began retaliating against her once
she opted-in to the Rochlin lawsuit. She alleges that prior to her joining the lawsuit, Baldwin would
call her once a week to discuss her work, but that after she joined the lawsuit he communicated with
her only by e-mail. In September of 2004, Niswander contacted Robert Miller in CIC’s Human
Resources Department to inform him that she believed that Baldwin was retaliating against her. She
subsequently informed Baldwin via e-mail of her belief, and she sent a copy of the e-mail to Miller.
In August of 2005, Niswander requested a transfer because she felt that Baldwin was not
providing her with the support she needed. Her request was denied. Niswander was placed on
CIC’s Progressive Problem Resolution Program (PPR) the following month. She had never been
placed on PPR prior to that date. According to Charles Robinson, Vice President of the Field Claims
Department, Niswander was placed on PPR because of job performance issues that “started long
before [she] joined the lawsuit.” In October of 2005, Niswander filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (EEOC) because she believed that CIC had
ignored her claims of retaliation.
Niswander communicated with the lawyers in the Rochlin lawsuit throughout the period of
time in which the alleged retaliation took place. At some undisclosed point in time, Niswander
discussed with the Rochlin lawyers her belief that Baldwin was retaliating against her. She testified
in her deposition that she was told by the attorneys that they “were hoping to bring a retaliation
claim in the future.”
In late September of 2005, Niswander received two letters from Amy DeBrota, one of the
lawyers in the Rochlin lawsuit. The letters informed Niswander that CIC had “ask[ed] [the
plaintiffs] to provide additional discovery response and documents.” In the first letter, Niswander
was directed to provide, among other information, “[a]ny documents that relate in any way to the
allegations we have made in the Complaint or Amended Complaints or any documents that you have
that show that you were treated less favorably (in any way) than a male employee at CIC.” The
letter concludes by stating that the plaintiffs “must cooperate in discovery or face adverse
consequences from the Court, such as preventing us from presenting helpful evidence at trial, or
even dismissing some claims altogether.”
DeBrota’s second letter was primarily intended to provide Niswander with her deposition
schedule for the lawsuit, but it also referred to the ongoing discovery requests. Specifically, that
letter stated: “[I]if you have any documents related to your employment at CIC which you have not
already sent in, please send them to me immediately.” (Formatting in original.) The letter
continued: “I also need you to look around your house and office for any documents you think might
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 3
be even remotely helpful to our case and send them in right away. If we do not produce the
documents to CIC and cooperate in discovery, we will not be able to use the documents at all.”
Niswander, allegedly in response to these letters, gathered up documents from her home
office and sent them to DeBrota. She admitted in her deposition that she had “no documents to
support an equal pay [claim].” Instead, she sent documents that she believed were relevant to CIC’s
alleged acts of retaliation against her. Some of the documents that Niswander sent were copies of
e-mails back and forth with her supervisors related to her job performance. Other documents,
however, were claim-file documents that allegedly would jog her memory regarding instances of
retaliation, but that did not in and of themselves contain evidence of retaliation. In sending the
documents to her lawyers, some of which included information about CIC’s policyholders,
Niswander “thought everything was confidential” and that “anything [she] produced was all between
the two attorneys, being Cincinnati Insurance[’s attorney] and mine.”
CIC eventually received the documents that Niswander provided to the Rochlin lawyers. The
company believed that Niswander’s conduct in delivering the documents violated CIC’s Privacy
Policy, its Code of Conduct, and its Conflict of Interest Policy, all of which expressly prohibit the
disclosure of confidential information, including personal information about policyholders. The
parties do not dispute that Niswander was subject to these three policies. Upon learning of
Niswander’s unauthorized dissemination of the documents, Charles Stoneburner, the Manager of
the Field Claims Department, was assigned to decide the proper penalty. Stoneburner decided to
terminate Niswander. Although he testified at his deposition that he did not know to whom or why
Niswander provided the documents, he explained that “[s]he was terminated for violating the
privacy policy and Code of Conduct.”
Niswander’s employment was terminated on December 5, 2005. The termination letter that
she received explained that CIC had “learned that [Niswander] took confidential and proprietary
documents, including documents from claim files, containing private and confidential information
about insureds and claimants without permission for uses unrelated and unnecessary to the
performance of your employment by CIC, in knowing violation of various company policies.”
B. Procedural background
In May of 2006, Niswander filed her initial complaint, alleging that she had been wrongfully
terminated by CIC in retaliation for having participated in the Rochlin lawsuit. Niswander also
claimed that she had suffered emotional distress as a result of CIC’s retaliatory actions. The parties
consented to have the case decided by a magistrate judge. In addition to its answer, CIC filed a
counterclaim for conversion of its property, the latter being based on Niswander’s delivery of the
confidential documents to her attorneys in the Rochlin lawsuit. CIC subsequently filed discovery
requests related to Niswander’s emotional-distress claims, including requests related to Niswander’s
job performance. Niswander then amended her complaint to remove all references to emotional
distress.
Despite Niswander’s amendment to her complaint, CIC filed a motion to compel responses
to its discovery requests related to Niswander’s job performance. CIC had sought information on
the personal circumstances that Niswander had relied on during her deposition to explain alleged
job-performance deficiencies. In February of 2007, the district court granted CIC’s motion to
compel, finding that Niswander had placed her personal life at issue by arguing about her
pretermination job performance. Niswander did not promptly comply with the court’s order to
produce the discovery requests, so the court set a deadline for compliance of May 29, 2007.
Also in February of 2007, CIC filed a motion for summary judgment on Niswander’s claims.
Niswander then filed her own motion for summary judgment on CIC’s claim of conversion. In April
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 4
of 2007, the district court granted CIC’s motion for summary judgment on Niswander’s retaliation
claim. The court also granted Niswander’s motion for summary judgment on CIC’s counterclaim
for conversion. Niswander now appeals the district court’s order on CIC’s motion to compel as well
as the order granting CIC’s motion for summary judgment. CIC is not appealing the district court’s
grant of summary judgment to Niswander on the conversion claim.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,
434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. Niswander’s retaliation claim
Niswander alleges that CIC retaliated against her because she joined and participated in the
Rochlin lawsuit. She points to a change in how she was treated by her supervisor following her
initial decision to opt in to the lawsuit and her subsequent dismissal after CIC learned that she had
turned over confidential company documents. According to Niswander, she delivered the
documents in response to a request by her attorneys in the Rochlin lawsuit, which itself was in
response to a discovery request by CIC. CIC responds by arguing that because the documents that
Niswander delivered were not germane to the EPA claims at issue in the Rochlin lawsuit, and were
potentially relevant only to a future claim of retaliation, her breach of the company’s privacy policy
was a legitimate ground for her dismissal.
Title VII forbids an employer from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title
VII] [the so-called “opposition clause”], or because [the employee] has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]
[the so-called “participation clause”].” 42 U.S.C. § 2000e-3(a). Unlawful employment practices
under Title VII include any actions taken on the basis of race, color, religion, sex, or national origin
that “discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment.” 42 U.S.C. § 2000e-2.
In order to establish a prima facie case of retaliation under Title VII, an employee must
establish that (1) he or she engaged in protected activity, (2) the employer knew of the exercise of
the protected right, (3) an adverse employment action was subsequently taken against the employee,
and (4) there was a causal connection between the protected activity and the adverse employment
action. Morris v. Oldham County Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000). The Supreme Court
in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), however, made
clear that the scope of Title VII’s retaliation provision is broader than that of Title VII’s
discrimination provision. See also Civil Rights Act of 1964, §§ 703(a), 704(a), 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a). In contrast to Title VII’s discrimination provision, the “adverse
employment action” requirement in the retaliation context is not limited to an employer’s actions
that affect the terms, conditions, or status of employment, or those acts that occur in the workplace.
See Burlington N., 126 S. Ct. at 2412-14. The retaliation provision instead protects employees from
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 5
conduct that would have “dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 2415 (internal quotation marks omitted).
Once the employee presents sufficient evidence to make out a prima facie case, the burden
shifts to the employer to produce evidence of a legitimate, nondiscriminatory reason for its actions.
EEOC v. Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997) (citing Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the employer satisfies this burden, the employee
must then demonstrate by a preponderance of the evidence that the legitimate reason offered by the
employer was in fact only a pretext designed to mask retaliation. Avery Dennison, 104 F.3d at 862.
The parties frame their arguments as a question of whether Niswander’s delivery of the
confidential CIC documents to her Rochlin attorneys should be analyzed under the “opposition
clause” or the “participation clause” of Title VII. Niswander contends that because she allegedly
delivered the documents in response to a request from her lawyers in the Rochlin lawsuit, her action
should be considered participation in that lawsuit. CIC, on the other hand, argues that because the
documents in question were relevant only to a potential future retaliation claim, her action should
be considered as opposition to that alleged retaliation.
“The distinction between employee activities protected by the participation clause and those
protected by the opposition clause is significant because federal courts have generally granted less
protection for opposition than for participation in enforcement proceedings.” Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). With respect to the participation
clause, we have recognized that the clause’s “exceptionally broad protections . . . extend[] to persons
who have participated in any manner in Title VII proceedings.” Johnson v. Univ. of Cincinnati, 215
F.3d 561, 582 (6th Cir. 2000) (citation and internal quotation marks omitted). “[O]nce the activity
in question is found to be within the scope of the participation clause, the employee is generally
protected from retaliation.” Booker, 879 F.2d at 1312.
The opposition clause, on the other hand, covers conduct such as “complaining to anyone
(management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing
to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful
acts by persons other than the employer—e.g., former employers, union, and co-workers.” Johnson,
215 F.3d at 579. We have explained that “the only qualification that is placed upon an employee’s
invocation of protection from retaliation under Title VII’s opposition clause is that the manner of
[the employee’s] opposition must be reasonable.” Id. at 580. Under either clause, the plaintiff has
the burden of showing that she engaged in protected activity. Id. at 578.
Simply deciding whether Niswander’s actions should be analyzed under the participation
clause or the opposition clause of Title VII, however, will not fully resolve the underlying issue in
this case. Because summary judgment was granted to CIC, the key issue is whether the district court
erred in finding that, as a matter of law, Niswander’s delivery of the confidential documents was not
protected activity. Determining whether her conduct is considered participation in the Rochlin
lawsuit or opposition to perceived retaliation is necessary, but not sufficient, to answer that question.
We must therefore determine, as a matter of first impression, under what circumstances the delivery
of confidential documents in violation of company policy is considered protected activity.
1. Whether Niswander’s conduct constituted participation in the
Rochlin lawsuit
Niswander’s claims were analyzed by the district court under the opposition clause without
any explanation as to why her delivery of the confidential documents was not considered
participation in the Rochlin lawsuit. She argues on appeal that her conduct was participatory
because she “produced the documents in response to discovery requests from CIC.” In support of
this argument, Niswander points to the two letters that she received from one of her attorneys in the
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 6
Rochlin lawsuit, expressing the need to cooperate with discovery and asked her to locate “any
documents related to your employment at CIC which [she had] not already sent in.” She also alleges
that she was responding directly to CIC’s Fifth Request for Production. CIC, she contends, was
“essentially request[ing] that she produce all documents[] which she felt supported her claims for
discrimination.”
Temporally speaking, CIC does not dispute that the documents were delivered while
Niswander was a participant in the Rochlin lawsuit. But that timing alone does not afford her the
broad protections of the participation clause. Niswander seeks to justify her delivery of the
documents on the basis of document-production requests that she never read, and she has never
disputed her own admission that she had “no documents to support an equal pay [claim].” This
admission is fatal to her argument that her conduct should be deemed participation in the Rochlin
lawsuit. If the documents that Niswander had given to her lawyers had been directly (or even
indirectly) relevant to the EPA claims raised in the Rochlin lawsuit, her delivery of those documents
would clearly constitute participation in that lawsuit. No explanation has been offered by either
party as to why Niswander’s lawyers felt that the documents in question were subject to CIC’s
document request. But Niswander’s statement makes clear that she herself did not believe that the
documents were relevant to the Rochlin lawsuit.
This is not a case of an employee mistakenly or inadvertently delivering confidential
information out of a belief that the documents provided direct proof of discrimination. Instead,
Niswander delivered numerous documents, some of which were copies of e-mails from her
supervisors related to her job performance, but some of which were claim-file documents that
included confidential personal information of insured individuals. Those claim-file documents were
delivered in order to help trigger Niswander’s memory of instances of alleged retaliation.
There is no dispute that she had those documents in her possession as a result of her
employment duties, but the fact that she innocently acquired them is not sufficient to overcome her
intentional and unnecessary dissemination of documents that were irrelevant to her EPA claim. Our
analysis would be different if the documents that Niswander had given to her lawyers, and that they
in turn produced to CIC, had reasonably supported her claim of gender-based pay
discrimination—or if she reasonably believed that they did. But on the basis of the facts before us,
her delivery of the documents to her attorneys in the Rochlin lawsuit does not qualify as
participation in that lawsuit.
An individual’s delivery of relevant documents during the discovery process or the giving
of testimony at a deposition clearly falls within the ambit of participating “in any manner” in a Title
VII proceeding. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (explaining that the
purpose of the participation clause “is to protect the employee who utilizes the tools provided by
Congress to protect his rights”). But concluding that Niswander’s conduct here is protected
participation in the Rochlin lawsuit would provide employees with near-immunity for their actions
in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when
they knowingly provide irrelevant, confidential information solely to jog their memory regarding
instances of alleged retaliation.
2. Whether Niswander’s conduct constituted opposition to unlawful
conduct
Despite concluding that Niswander’s actions did not constitute protected participation in the
Rochlin lawsuit, we must still determine whether her conduct was protected under Title VII’s
opposition clause. That determination requires the careful balancing of competing interests. A
balance must be achieved between the employer’s recognized, legitimate need to maintain an orderly
workplace and to protect confidential business and client information, and the equally compelling
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 7
need of employees to be properly safeguarded against retaliatory actions. Allowing too much
protection to employees for disclosing confidential information may perversely incentivize behavior
that ought not be tolerated in the workplace—namely, the surreptitious theft of confidential
documents as potential future ammunition should the employee eventually feel wronged by her
employer. On the other hand, inadequate protection to employees might provide employers with
a legally sanctioned reason to terminate an employee in retaliation for engaging in activity that Title
VII and related statutes are designed to protect.
There is a paucity of caselaw addressing the production of confidential information in the
context of a retaliation claim. The few circuit courts that have faced the issue have all chosen a
balancing test to determine whether the unauthorized disclosure of the documents should be
protected. One such case is O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir.
1996). In granting CIC’s motion for summary judgment, the district court relied almost entirely on
O’Day and the case of Watkins v. Ford Motor Co., No. C-1-03-033, 2005 WL 3448036 (S.D. Ohio
Dec. 15, 2005).
The plaintiff in O’Day was denied a promotion by his employer and was laid off one month
later. Because O’Day believed that he had been denied the promotion and laid off because of his
age, he filed a lawsuit alleging a violation of the Age Discrimination and Employment Act (ADEA),
which contains an antiretaliation provision that is identical to the one found in Title VII. See 29
U.S.C. § 623(d).
During discovery, O’Day produced documents that he had found by rummaging through files
in his supervisor’s office on the night that he was initially denied the promotion. The district court
noted that the file “was clearly not meant for general inspection” because “[n]ot only was the file
kept in a closed drawer in his supervisor’s desk, but it contained notes and memoranda about
sensitive personnel matters and was prominently marked ‘personal/sensitive.’” O’Day, 79 F.3d at
758. O’Day photocopied the documents and showed them to another employee. Once McDonnell
Douglas learned of O’Day’s conduct, it terminated his employment. McDonnell Douglas later
moved for summary judgment, arguing that O’Day’s copying and distribution of the confidential
documents immunized the company from any liability for discrimination. In response, O’Day
argued that his conduct could not provide a legitimate reason for terminating his employment
because it was protected activity under the ADEA’s opposition clause.
O’Day further claimed “that by gathering evidence for an eventual lawsuit, he was
participating in the investigation of an unlawful employment practice under the ADEA, or at the
very least opposing such a practice.” Id. at 763. The Ninth Circuit applied the balancing test that
it uses in the Title VII context for determining whether O’Day’s conduct was protected activity.
Under the test, “[t]he court must balance the purpose of the Act to protect persons engaging
reasonably in activities opposing . . . discrimination, against Congress’[s] equally manifest desire
not to tie the hands of employers in the objective selection and control of personnel.” Id. (internal
quotation marks omitted).
Ultimately, the O’Day court “[struck] the balance . . . in favor of McDonnell Douglas”
because “O’Day committed a serious breach of trust, not only in rummaging through his
supervisor’s office for confidential documents, but also in copying those documents and showing
them to a co-worker.” Id. The court noted that there was no explanation for why O’Day chose to
preserve evidence of layoff decisions during a time when he had yet to be laid off. Id. In affirming
the grant of summary judgment to McDonnell Douglas, the court explained its rationale as follows:
In balancing an employer’s interest in maintaining a “harmonious and efficient”
workplace with the protections of the anti-discrimination laws, we are loathe [sic]
to provide employees an incentive to rifle through confidential files looking for
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 8
evidence that might come in handy in later litigation. The opposition clause protects
reasonable attempts to contest an employer’s discriminatory practices; it is not an
insurance policy, a license to flaunt [sic] company rules or an invitation to dishonest
behavior.
Id. at 763-64.
Watkins, the other case relied upon by the district court, arose out of an initial claim of
discrimination under Ohio state law and related to Ford Motor’s failure to promote Watkins over
a period of 28 years. As part of the discovery in the discrimination case, Watkins produced copies
of confidential employee profiles that contained information about salaries and performance. Ford
Motor subsequently terminated Watkins’s employment because of his disclosure of the employee
profiles, and Watkins added a claim of retaliation to his lawsuit. The court granted Ford Motor’s
motion for summary judgment on the retaliation claim and rejected Watkins’s argument “that his
copying and disclosure of personnel information is activity that is protected under Ohio’s anti-
retaliation law.” Watkins, 2005 WL 3448036, at *7.
Watkins alleged that “he found the profiles in a book that had been left out in the open, the
papers were not marked as confidential, and he disclosed the profiles only to his counsel.” Id. He
did, however, obtain the documents “way before filing his EEOC charge and/or his first complaint
against Ford.” Id. at *1. The court explained that if it
were to adopt [Watkins’s] argument that such conduct is protected activity,
“plaintiffs everywhere would be entitled, under the umbrella of protected activity,
to steal company information and, so long as they give the information to their
lawyer, not only be able to avoid disciplinary action by their employer, but also be
empowered to successfully maintain a claim against their employer if adverse action
is taken for the misconduct.” This result finds no support in Ohio law and is not one
the Court is willing to countenance absent compelling authority requiring it to do so.
Far from being entitled to protection under the law, plaintiff’s conduct was
counterproductive, wrongful, and a breach of his employer’s trust.
Id. at *7 (citation omitted).
Relying heavily on O’Day, the district court in Watkins concluded that “a reasonable jury
could not determine that the documents were ‘innocently acquired’” because Watkins had
“committed a serious breach of trust by looking through defendant’s files and copying documents
that obviously were not intended for general inspection and then providing those documents to his
attorneys.” Id. at *7-8. The court also rejected Watkins’s argument that he was entitled to
protection because he obtained the files for use in a lawsuit, “particularly since plaintiff could have
sought that information by securing counsel and going through the proper legal channels.” Id. at *8.
Another case that is instructive on this issue is Kempcke v. Monsanto Co., 132 F.3d 442 (8th
Cir. 1998), in which the Eighth Circuit addressed a retaliation claim that was brought by an
employee who was fired for refusing to return confidential documents that he had given to his
attorney. The claim was brought under the ADEA. Kempcke had discovered documents on his
company-issued computer that he believed revealed a plan by Monsanto “to weed out senior
managers, including Kempcke, at least partially because of their ages.” Id. at 445. He “confronted
his supervisor with these documents and requested an explanation,” conduct that the Eighth Circuit
concluded was “clearly protected activity” under the opposition clause of the ADEA. Id.
Kempcke also gave the documents to his attorney and “told his supervisor that Monsanto
must deal with his attorney on the question of whether the documents would be returned.” Id. The
court described that conduct as “at least arguably oppositional or litigation activity, because it placed
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 9
documents that might evidence discrimination in the hands of a legal professional who would litigate
the issue on Kempcke’s behalf if he could not resolve the matter informally with Monsanto.” Id.
Although giving the documents to Kempcke’s lawyer “was generally consistent with opposing
unlawful age discrimination,” the court explained that it must also “consider whether that conduct
was so disruptive, excessive, or generally inimical to [the] employer’s interests . . . as to be beyond
the protection of § 623(d).” Id. (alteration and ellipsis in original) (citations and internal quotation
marks omitted).
The Kempcke court emphasized the fact that “Kempcke innocently acquired the documents,
discovering them in a computer assigned to him by Monsanto.” Id. at 446. Kempcke’s innocent
acquisition 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. The court concluded that “when
documents have been innocently acquired, and not subsequently misused, there has not been the
kind of employee misconduct that would justify withdrawing otherwise appropriate § 623(d)
protection.” Id. Although “employee insubordination is ordinarily a legitimate non-discriminatory
reason for adverse action,” the Kempcke court explained that “when the insubordination consists of
refusing to cease what a jury could find to be reasonable ADEA-protected activity, such as retaining
a document that may evidence on-going discrimination, summary judgment dismissing a retaliation
claim is not appropriate.” Id. The Eighth Circuit thus reversed the district court’s grant of summary
judgment to Monsanto. O’Day was explicitly distinguished on the basis that O’Day “involv[ed]
improper dissemination of an employer’s documents to third parties other than the plaintiff’s
attorney.” Id. (emphasis in original).
The courts in O’Day, Watkins, and Kempcke all applied some form of a balancing test to
determine whether the employee’s unauthorized dissemination of the documents qualified as
protected activity. See also Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1036 (5th
Cir. 1980) (balancing the employer’s “legitimate and substantial interest in keeping its personnel
records and agency documents confidential” with the employee’s alleged “need for surreptitious
copying and dissemination of the documents”); Abernathy v. Walgreen Co., 836 F. Supp. 817, 820-
21 (M.D. Fla. 1992) (rejecting the employee’s claim that he should be protected for disseminating
a personnel record outside of the company, instead finding that the employee “demonstrated neither
an urgent need to disseminate the record outside the Walgreen organization nor a need that
reasonably outweighed Walgreen’s interest in confidentiality”). In all of these cases, significant
weight was placed on how the documents were obtained and to whom they were distributed.
The ultimate question under the balancing test is whether the employee’s dissemination of
confidential documents was reasonable under the circumstances. This type of test is consistent with
the general notion that oppositional activity must be reasonable in order to receive protection under
Title VII and other similar statutes. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir.
2000) (“[T]he only qualification that is placed upon an employee’s invocation of protection from
retaliation under Title VII’s opposition clause is that the manner of the opposition must be
reasonable.”)
The balancing test can be applied regardless of whether the employee’s actions arise under
the opposition clause or the participation clause, and the form of the employee’s action (opposition
or participation) can be considered in determining whether the employee’s actions are reasonable.
As discussed in Part II.B.1 above, Niswander’s acknowledgment that the documents in question
were not relevant to the Rochlin lawsuit prevents a finding that her delivery of the confidential
documents constituted participatory activity. An employee’s dissemination of confidential
documents in other situations, however, might qualify as participatory. Under a balancing test, the
strong protections that are normally afforded an employee based on his or her participation in a Title
VII lawsuit, investigation, or hearing may lead a court to conclude that the delivery of confidential
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 10
documents by a participant in such a lawsuit would qualify as protected activity, although the same
action by someone who is simply opposing discrimination would not.
The analysis of a participation claim does not generally require a finding of reasonableness,
as opposed to the requirement that oppositional conduct be reasonable. But when confidential
information is at issue, a reasonableness requirement is appropriate. Given that an individual who
has filed a lawsuit under Title VII has available the tools of civil discovery, a showing of
reasonableness when confidential documents are disseminated outside of the discovery structure
provides protections for employees and employers alike.
Based on the analysis applied by the courts in the cases discussed above, we believe that the
following factors are relevant in determining whether Niswander’s delivery of the confidential
documents in question was reasonable: (1) how the documents were obtained, (2) to whom the
documents were produced, (3) the content of the documents, both in terms of the need to keep the
information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the
documents were produced, including whether the production was in direct response to a discovery
request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to
preserve the evidence in a manner that does not violate the employer’s privacy policy. These factors
are designed to take into account the employer’s “legitimate and substantial interest in keeping its
personnel records and agency documents confidential” and yet protect the employee’s alleged “need
for surreptitious copying and dissemination of the documents.” Jefferies v. Harris County Cmty.
Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980).
The district court in the present case, in reliance on O’Day and Watkins, concluded as
follows:
[T]he Court finds that Defendant’s interest in ensuring compliance with its policies
of privacy and the law, and maintaining the confidentiality of its clients’ personal
information outweighs Plaintiff’s interest in preserving what she considered to be
evidence of unlawful retaliation on the part of Defendant. This is so especially in
light of the fact that Plaintiff could have preserved this evidence without violating
the law and her employer’s policy and trust as she could have taken notes of the
incidents that she felt spurned retaliation instead of taking pictures and claims file
information that jogged her memory of these incidents and giving them to her
attorney. Moreover, this “evidence” that Plaintiff handed over to her attorney does
not prove retaliation in and of itself as Plaintiff herself admitted that the documents
that she gave her attorney relating to claims file information only served to trigger
her memory about incidents which she believed constituted retaliation.
The circumstances surrounding Niswander’s delivery of the documents in question are
generally undisputed. Through her work as a field claims specialist, she had access to confidential
documents related to CIC policyholders. These documents were properly in her possession at her
home office. At some point during the course of the Rochlin lawsuit, Niswander discussed with her
lawyers perceived retaliation by CIC due to her involvement in the lawsuit. She also received two
letters from the Rochlin lawyers asking her for documents related to the EPA claim. Niswander then
searched through the documents she had in her possession, looking for documents related to the EPA
claim and, by her own admission, documents related to CIC’s alleged retaliation. She found no
documents related to the EPA claim, but provided an unspecified number of other documents to her
lawyers that did nothing more than jog her memory about incidents that she believed constituted
retaliation.
As the district court explained, Niswander could have preserved the alleged evidence of
retaliation in other ways; in particular, she could have taken notes of the incidents that she believed
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 11
demonstrated retaliation instead of delivering documents that contained confidential policyholder
information. 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 privacy policy.
Although employees deserve protection when they make reasonable attempts to preserve
evidence of illegal employment practices, including discrimination and retaliation, “we are loathe
[sic] to provide employees an incentive to rifle through confidential files looking for evidence that
might come in handy in later litigation.” O’Day, 79 F.3d at 763. To hold in favor of Niswander
would turn the opposition clause into “a license to flaunt [sic] company rules or an invitation to
dishonest behavior.” Id. at 764. So even after viewing the evidence in the light most favorable to
Niswander, we conclude that her production of the documents was not reasonable under the six-
factor test set forth above.
The only factors that arguably weigh in Niswander’s favor are factors one and two, but even
those do not weigh heavily in her favor. Although she had access to the documents through her
employment, Niswander did not innocently acquire the documents in the same manner as the
plaintiff in Kempcke, who came across evidence of potential age discrimination in a company
computer that had been issued to him. See Kempcke, 132 F.3d at 445. Rather than innocently
stumbling upon evidence of illegal employment practices, Niswander specifically searched through
the CIC documents that she had at her home office for the purpose of uncovering evidence of
retaliation. Such behavior cannot be classified as truly innocent acquisition.
As for the second factor, Niswander’s providing the documents to her Rochlin attorneys is
less problematic than giving them to a fellow employee. But in light of the fact that Niswander had
alternative means to inform her Rochlin counsel of the alleged retaliation, her behavior cannot be
condoned simply because she limited the dissemination of the documents in question to her
attorneys.
Niswander’s delivery of the confidential documents, therefore, does not qualify as protected
activity, so it cannot provide support for her prima facie case of retaliation. And even if we were
to assume that Niswander’s other evidence of retaliation (such as the e-mails with her supervisor and
her being placed on PPR) is sufficient to make out a prima facie case of retaliation for her
participation in the Rochlin lawsuit, her delivery of the confidential documents is a legitimate
nondiscriminatory reason for CIC’s decision to terminate her employment. Niswander asserts in
rebuttal that there is a genuine issue of material fact as to whether CIC’s stated reason for
terminating her was pretextual because (1) she produced the documents in response to a document
request from CIC, and therefore her action falls under an exception to the Code of Conduct, and
(2) CIC did not mark the produced documents as confidential once the documents were returned to
CIC.
A plaintiff who is trying to show that the employer’s stated reason for termination is
pretextual “is required to show by a preponderance of the evidence either (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his [or her]
discharge, or (3) that they were insufficient to motivate discharge.” Manzer v. Diamond Shamrock
Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (citation and internal quotation marks omitted;
emphasis in original). Niswander argues that she has shown both that her termination had no basis
in fact and was not actually motivated by a violation of CIC’s Code of Conduct.
There is an exception to the Code of Conduct that permits disclosure of confidential
information where it “is legally mandated, authorized by the company or required for the proper
conduct of business.” Niswander contends that she produced the documents in question in response
to a document request from CIC, and that this made her disclosure of confidential policyholder
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 12
information both legally mandated and authorized by the company. CIC’s document request,
however, concerned only those writings relevant to the class-action EPA claim. Her production of
irrelevant, confidential documents, when other avenues of preservation were readily available, was
neither legally mandated nor authorized by CIC.
Niswander’s alternative assertion is that CIC’s failure to mark the produced documents as
confidential proves that her delivery of the documents did not actually motivate its decision to fire
her. But as CIC points out, the violation for which Niswander was terminated was the initial
disclosure of the documents. The “horse was out of the barn,” in other words, by the time CIC
received the documents from opposing counsel in the Rochlin lawsuit, so whether CIC subsequently
marked the documents as confidential has no bearing on whether she was fired for delivering the
documents or because of impermissible retaliation.
Moreover, even if the decision to terminate Niswander for producing the documents
ultimately proved to be flawed, Niswander has failed to show the presence of a genuine issue of
material fact regarding Stoneburner’s honest belief that she had violated the company’s privacy
policy. “[A]s long as an employer has an honest belief in its proferred nondiscriminatory reason for
discharging an employee, the employee cannot establish that the reason was pretextual simply
because it is ultimately shown to be incorrect.” Majewski v. Auto. Data Processing, Inc., 274 F.3d
1106, 1117 (6th Cir. 2001) (citation omitted). As we have explained, “the key inquiry is whether
the employer made a reasonably informed and considered decision before taking an adverse
employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Niswander has
provided no evidence to rebut Charles Stoneburner’s testimony that he fired her because he
reasonably believed that she had violated the company’s privacy policy. We thus conclude that
summary judgment was properly granted to CIC because Niswander has failed to show that the
stated reason for her termination was pretextual.
C. CIC’s motion to compel
Niswander’s final issue on appeal relates to the district court’s order granting CIC’s motion
to compel discovery with regard to Niswander’s mental and emotional issues, including her history
of counseling, treatment, and allegations of violence in her marriages. The court granted the motion
after concluding that Niswander had placed her emotional and mental status at issue by alleging a
pattern of retaliation that began when she joined the Rochlin lawsuit. Specifically, the court
concluded that Niswander’s “emotional state is indeed relevant because she used her personal life,
emotional issues and medical problems as justifications or excuses to [CIC’s] management for her
lapses in performance during the tenure of her employment.” The court rejected Niswander’s
assertions of spousal and psychotherapist privilege because “she fail[ed] to provide the Court with
sufficient information upon which to meet her burden for showing good cause for a protective order,
especially since it appears that she disclosed issues relating to her emotional issues and her
marriages to [CIC’s] management when confronted about her performance.”
In granting CIC’s motion to compel, the district court denied Niswander’s motion for a
protective order, but limited the disclosure of the records at issue to Niswander and her counsel,
CIC’s counsel, and any relevant expert witnesses. The court limited the disclosure after
“recognizing the sensitive nature of the information to be disclosed.” Niswander had not yet
complied with the discovery order when the district court granted summary judgment to CIC.
Because we have concluded that CIC is entitled to summary judgment, we have no need to reach
the merits of this aspect of Niswander’s appeal.
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 13
III. CONCLUSION
For all the reasons set forth above, we AFFIRM the judgment of the district court.
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 14
_____________________
CONCURRENCE
_____________________
McKEAGUE, Circuit Judge, concurring. I concur in the majority’s opinion affirming
summary judgment in favor of CIC but write separately to point out a couple of wrinkles in the
majority’s balancing test. The majority sets forth a six-factor balancing test for determining whether
Niswander’s delivery of confidential documents to her attorney was reasonable. With the sixth
factor—“the ability of the employee to preserve the evidence in a manner that does not violate the
employer’s privacy policy”—being placed within the mix of factors, maj. op. at 10, one could read
the majority opinion to permit an employee to breach her employer’s privacy policy even when there
are nonbreaching alternatives within her reach if a particular tribunal believes that one or more of
the other factors weigh heavily enough in her favor.
This reading raises a troubling question. Why, if nonbreaching alternatives are available,
should an employee’s affirmative decision to breach her employer’s privacy policy be judicially
sanctioned? The question almost answers itself—if she has “the ability . . . to preserve the evidence
in a manner that does not violate the employer’s privacy policy,” then she must exercise that ability.
An employee does not act reasonably when she favors her own expediency over employer and
customer privacy and confidentiality. See Holden v. Owens-Illinois, Inc., 793 F.2d 745, 751 (6th Cir.
1986) (“An employee is not protected by Title VII when he violates legitimate company rules,
knowingly disobeys company orders, disrupts the work environment of his employer, or willfully
interferes with the attainment of the employer’s goals.” (quoting Unt v. Aerospace Corp., 765 F.2d
1440, 1446 (9th Cir. 1985))). It is only when an employee’s reasonable activities clash against an
employer’s legitimate job requirements and workplace rules that a court must balance those two
competing interests under Title VII. Unreasonable activities and illegitimate business concerns
should not be variables in that calculus.
Moreover, it is unclear from the majority’s formulation whether each factor is on equal
footing with the others. If, for example, “the contents of the [confidential] documents” (maj. op. at
10) taken by the employee have no possible relevance to any claim of discrimination or retaliation,
can it really be that the employee’s action was reasonable? And, yet, under the majority’s balancing
test, if one or more of the other five factors weigh in favor of the employee, it appears (at least
conceptually) that the employee’s breach could still be deemed reasonable, protected activity under
Title VII.
The facts of this case, however, do not present us with the opportunity to iron out these
wrinkles. As the majority recognizes, the case does not turn solely on whether Niswander had a
nonbreaching way to preserve the information in the confidential documents (she did), nor does it
turn solely on the evidentiary value of many of those documents (nil). Maj. op. at 10–11. With so
many factors weighing against Niswander, no one factor can be deemed to be the tipping point.
Thus, we must leave these matters to a future panel presented with a case more closely drawn. Van
Hook v. Anderson, 488 F.3d 411, 425 (6th Cir.), cert. denied, 128 S. Ct. 614 (2007) (“We leave to
another day any further refinement of our holding which may be necessitated by a different set of
facts than those presented here.”).
No. 07-3738 Niswander v. The Cincinnati Ins. Co. Page 15
_____________________
CONCURRENCE
_____________________
RONALD LEE GILMAN, Circuit Judge, concurring. I write this separate concurrence to
express my disagreement with the concurring opinion of Judge McKeague, who raises concerns
about the possibility of “permit[ting] an employee to breach her employer’s privacy policy even
when there are nonbreaching alternatives within her reach if a particular tribunal believes that one
or more of the other factors weigh heavily enough in her favor.” (Concurring Op. at 14) This view
implies that if a nonbreaching alternative exists, then an employee’s breach of the company’s
privacy policy can never be reasonable. Although we have no need to resolve this issue under the
facts of this case, I am concerned that giving controlling weight to the sixth factor to the exclusion
of the other five would essentially be an adoption of the rebuttable-presumption test applied by the
district court in Laughlin v. Metropolitan Airports Authority, 952 F. Supp. 1129 (E.D. Va. 1997),
a test rejected on appeal by the Fourth Circuit in favor of the kind of balancing test that we have
embraced herein. 149 F.3d 253, 260 (4th Cir. 1998). I am, in sum, unwilling to foreclose the
possibility that an employee’s dissemination of confidential documents might be reasonable under
the totality of the circumstances despite having a nonbreaching alternative available, as for example
in a case where an employee reasonably believes that she is being subjected to discrimination and
takes confidential documents to an attorney for advice and counsel. See Kempcke v. Monsanto Co.,
132 F.3d 442 (8th Cir. 1998).