Is breaking the law protected activity by employees when filing an EEOC charge?

November 14, 2008

Excerpted from Colorado Employment Law Letter written by attorneys at the law firm of Holland & Hart LLP

by Vivian Barrios

Imagine this: One of your employees violates company policy and state law by disclosing confidential company records to the Equal Employment Opportunity Commission (EEOC) to buttress her discrimination charge. After learning about the activity, you fire the employee -- who then sues you, claiming you retaliated against her for filing an EEOC charge. Does an employee engage in protected activity when she breaks the law to advance her discrimination charge? The Tenth U.S. Circuit Court of Appeals says yes.

Nurse breaks law to file EEOC claim
Bernadine Vaughn, an African American, worked in Oklahoma as a certified nurses' aide/certified medication aide for Epworth Villa from 1991 until 2005. In April 2004, she filed a charge with the EEOC alleging that her employer discriminated against her because of her age and race. She claimed she was disciplined for making errors that younger white employees weren't disciplined for. While her charge was pending, Vaughn provided the EEOC with several pages of unedited medical records concerning an Epworth Villa patient, including detailed information about the patient's medical treatment.

One year after Vaughn filed her charge, Epworth Villa learned about her unauthorized disclosure of the medical records and reported the incident to the Oklahoma Department of Health (ODH). The ODH advised Epworth Villa to conduct an investigation. During the investigation, Vaughn admitted that she copied and released the records to the EEOC. She also acknowledged that one of her responsibilities at Epworth Villa was to help maintain the confidentiality of patients' records and care.

In June 2005, Epworth Villa terminated Vaughn for disclosing medical records in violation of its policies and procedures. The ODH also investigated Vaughn's conduct, and an administrative law judge found that her disclosure of the records to the EEOC violated Oklahoma law.

After she was fired, Vaughn sued Epworth Villa, claiming she was terminated in violation of Title VII's prohibition against retaliating for engaging in protected activity -- that is, filing a discrimination charge with the EEOC. To prevail on her retaliation claim, Vaughn was required to show the following:

1. she engaged in protected activity;
2. she suffered an adverse employment action; and
3. the adverse action was taken in retaliation for the protected activity and not for legitimate, nonretaliatory reasons.

Epworth Villa asked the court to dismiss the lawsuit, claiming that Vaughn's violation of company policy and state law by disclosing patient records wasn't protected activity. The district court agreed, reasoning that Vaughn's unlawful conduct while participating in the EEOC process wasn't protected activity unless she had no other choice but to break the law to advance her claim. Believing that she had options besides providing the EEOC with confidential patient records, the trial court held that Vaughn's disclosure of the medical records wasn't protected activity and dismissed her claim. Vaughn appealed the decision to the Tenth Circuit.

OK to circumvent law to advance discrimination claim
While stating that the trial court reached the right result in the case, the Tenth Circuit disagreed with the trial court's analysis and reasoning. It specifically rejected the lower court's holding that Vaughn's disclosure of the medical records in violation of company policy and state law wasn't protected activity.

The Tenth Circuit began its analysis by stating that Title VII's retaliation provision has two parts: an opposition clause and a participation clause. The opposition clause protects employees from retaliation for opposing an employer's discriminatory practices. The participation clause, on the other hand, is much broader and protects employees from retaliation for participating "in any manner in an investigation, proceeding or hearing under" Title VII.

The court held that Vaughn was protected under the participation clause and that under a broad reading of the clause, there is no obligation for an employee to resort only to honest and loyal conduct in advancing a Title VII claim. Rather, participation in any manner -- even when the employee's actions might be unlawful -- is protected conduct under Title VII. Therefore, the court held that Vaughn engaged in protected conduct when she disclosed the medical records to the EEOC, even though she broke state law.

Fortunately, the Tenth Circuit didn't end its analysis there. To prevail on her retaliation claim, Vaughn had to show that the reason Epworth Villa gave for her termination -- violation of company policy and procedures prohibiting unauthorized disclosure of medical records -- was a pretext for retaliation. The court held that Vaughn failed to produce sufficient evidence of pretext. Specifically, she was unable to show that other Epworth Villa employees weren't terminated for engaging in similar conduct.

In the absence of evidence that similarly situated employees were treated differently, the Tenth Circuit stated that it was perfectly plausible that Epworth Villa would terminate Vaughn for disclosing medical records without authorization. The lower court's decision was upheld, and Vaughn's retaliation claim was dismissed. Vaughn v. Epworth Villa, Case No. 07-6005, August 19, 2008.

Lessons learned
The takeaway from this case is that employees may lawfully violate your company policies to advance their discrimination charges. That includes stealing personnel documents from the HR department to use as supporting documentation to the EEOC. However, if you have well-drafted personnel policies specifically prohibiting that kind of behavior and enforce them evenhandedly, a court is likely to find that firing the employee for breaching your policy is not unlawful retaliation.

For more information on this case, please contact Vivian Barrios at (303) 473-2714 or vmbarrios@hollandhart.com.

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Copyright 2008 M. Lee Smith Publishers LLC. COLORADO EMPLOYMENT LAW LETTER. COLORADO EMPLOYMENT LAW LETTER is intended only to inform, but not to provide legal advice, and recipients should seek professional advice with regard to specific applications of the information.

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• HR Executive Special Report - How to Fire Employees Without Getting Burned (available for purchase by nonsubscribers)
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• Sample Policy - Employment Contracts
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