Production of Confidential And Irrelevant Documents Dooms Retaliation Case

    An employee's production to her lawyer of confidential but irrelevant to her case doomed her retaliation lawsuit the Sixth Circuit Court of Appeals ruled in Niswander v. Cincinnati Insurance Company (No. 07-3738 decided June 24, 2008).  The plaintiff, Niswander, was a plaintiff in a class action lawsuit claiming that the  insurance company employer discriminated against women in their pay.  In response to a pretrial discovery request for documents made by the insurance company, Niswander provided her lawyer with confidential documents that she admitted were irrelevant to her equal pay claim but did serve to jog her memory about acts of retaliation toward her.  Since Niswander admitted that the documents were not relevant to her equal pay claim, the court ruled that her production of the documents to her lawyer did not constitute protected activity for which retaliation would be unlawful.  Therefore, the court ruled that the employer lawfully terminated her for violating its confidential documents policy and upheld the trial court's summary judgment dismissal of her retaliation claim. 
    What doomed Niswander's claim was her admission that the documents were irrelevant to her equal pay claim, the only claim she had pending at the time of the documents' production.  The Sixth Circuit advised that 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." 

Robert L. Abell
www.robertabelllaw.com