In the United States District Court for the Middle District of Florida Wynnwood Division

Team No. 1010D In the United States District Court for the Middle District of Florida Wynnwood Division Theodore McNally, Plaintiff, v. Hostram, Inc., Defendant. Civil Action No. 10-X441-CIV-R DEFENDANT S BRIEF Team No. 1010D Attorneys for Defendant September 16, 2010

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA WYNNWOOD DIVISION Theodore McNally, Plaintiff, v. Civil Action No. 10-X441-CIV-R Hostram, Inc., Defendant. DEFENDANT S BRIEF ON THE MERITS IN SUPPORT OF DEFENDANT S MOTION FOR EXPEDITED DISCOVERY AND SUMMARY JUDGMENT SCHEDULE QUESTIONS PRESENTED I. Under the after-acquired evidence doctrine, does an employer have the right to limit potential damages when a former employee engages in misconduct that would render him otherwise unsuitable for employment? II. The Age Discrimination in Employment Act 623(d) states: 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, or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act. Under 623(d), may an employee steal documents from his employer in order to pursue a potential discrimination claim against that employer? ii

STATEMENT OF JURISDICTION This Court has federal question jurisdiction over this case pursuant to 28 U.S.C. 1331, as this action arises under an ADEA cause of action, specifically 29 U.S.C. 621 et seq. iii

TABLE OF CONTENTS Questions Presented...ii Statement of Jurisdiction...iii Table of Contents...iv Index of Authorities...vi Statement of the Facts...1 Summary of the Argument...1 Argument...3 I. The Use of Post-Termination Misconduct Is Consistent With Supreme Court Standards, Is Used By Appellate Courts Nationwide and Defendant Can Establish a Sufficient Basis of Wrongdoing...3 A. Application of the After-Acquired Evidence Defense to Post- Termination Misconduct Is a Logical Extension of the Equitable Principles Set Forth in McKennon...4 B. Appellate Courts, Including the Eleventh Circuit, Have Extended the After-Acquired Evidence Defense Beyond the Term of Employment...5 C. Given the Totality of Circumstances Surrounding the Termination of Plaintiff s Employment, Defendant Can Provide a Sufficient Pre- Existing Basis to Pursue Additional Discovery in Support of the After-Acquired Evidence Defense...7 II. Under The Age Discrimination in Employment Act, an Employee May Remove Materials From His Employer in Order to Pursue His Discrimination Claim Only in Limited Circumstances...10 A. The Court Should Apply a Balancing Test to Determine if an Employee s Theft of His Employer s Documents Is Considered Protected Activity Under the Age Discrimination in Employment iv

Act...11 1. Based on the Inherently Conflicting Interests of the Parties and the Precedent of This Circuit, a Balancing Test Is the Appropriate Test to Apply in This Situation...12 a. A Balancing Test Protects an Employer s Need for Confidentiality While Maintaining an Employee s Rights Under the Age Discrimination in Employment Act...12 b. A Balancing Test Has Been Adopted in Most Circuits...13 2. There Are Three Factors That Consistently Bear on the Balancing Test Analysis...14 a. The Court Should Consider the Nature of the Employee s Acquisition of the Documents...15 b. The Court Should Consider to Whom the Employee Gave the Documents...16 c. The Court Should Consider the Probative Value of the Documents to the Employee s Claim...17 B. The Court Should Not Apply Any Other Test to Determine if an Employee s Theft of His Employer s Documents Is Considered Protected Activity Under the Age Discrimination in Employment Act...18 1. The Court Should Not Apply an Objective Test Because it Does Not Adequately Protect an Employer s Right to Confidentiality...18 2. If the Court Chooses to Apply an Objective Test, The Same Three Factors That Apply to the Balancing Test Should Also Bear on This Analysis...19 Conclusion...20 v

INDEX OF AUTHORITIES Statutes 29 U.S.C. 623(a) (2006)...10 29 U.S.C. 623(d) (2006)...11 42 U.S.C. 2000e-2(a) (2006)...10 42 U.S.C. 2000e-3(a) (2006)...11 Cases Abernathy v. Walgreen Co., 836 F. Supp. 817 (M.D. Fla. 1992)...14 Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426 (M.D. Fla. 2005)...9 Carr v. Woodbury City Juv. Det. Ctr., 905 F. Supp. 619 (N.D. Iowa 1995)...7 Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001)...9 Cohen v. Gulfstream Training Academy, Inc., No. 07-60331-CIV-COHN/SELTZER, 2008 U.S. Dist. LEXIS 29027 (S.D. Fla. April 9, 2008)...6 Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001)...6 Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222 (1st Cir. 1976)...13 Jeffries v. Harris County Comty. Action Ass n, 615 F.2d 1025 (5th Cir. 1980)...11, 14 vi

Kempcke v. Mansanto Co., 132 F.3d 442 (8th Cir. 1998)... 11, 13, 15, 16 Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV-COHN/SELTZER, 2010 U.S. Dist. LEXIS 53584 (S.D. Fla. May 6, 2010)...7 Maxwell v. Health Center of Lake City, Inc., No. 3:05-CV-1056-J-32MCR, 2006 U.S. Dist. LEXIS 36774(M.D. Fla. June 06, 2006)...8 Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999)...6 McKenna v. City of Philadelphia, 636 F. Supp. 2d 446 (E.D. PA 2009)...7 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)...3, 4, 5, 11 Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008)...11, 14, 17 O Day v. McDonald Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996)...Passim Premer v. Corestaff Services, L.P., 232 F.R.D. 692 (M.D. Fla. 2005)...8 Russell v. Microdyne Corp., 65 F.3d 1229 (4th Cir. 1995)...6 Ryder v. Westinghouse Elec. Corp., 879 F. Supp. 534 (W.D. Pa. 1995)...7 Sellers v. Mineta, 358 F.3d 1058 (8th Cir. 2004)...6 Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106 (5th Cir. 1995)...5 vii

Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667 (S.D.N.Y. 1995)...7 Wallace v. Dunn Constr., Co., 62 F.3d 374 (11th Cir. 1995)...5, 7 Watkins v. Ford Motor Co., No. C-1-03-033, 2005 U.S. Dist. LEXIS 33140 (S.D.OH. Dec. 15, 2005)...15, 16 Wehr v. Ryan s Family Steak Houses, Inc., 49 F.3d 1150 (6th Cir. 1995)...6 Legislative Materials H.R. Rep. No. 88-914 (1963), reprinted in 1964 U.S.C.C.A.N. 2487...13 Secondary Materials Nicholas M. Strohmayer, Note, Drawing the Line: Niswander s Balance Between Employer Confidentiality Interests and Employee Title VII Anti-Retaliation Rights, 95 Iowa. L. Rev. 1037 (2010)...12 viii

STATEMENT OF FACTS This litigation arises from the termination of Plaintiff Theodore McNally by Defendant Hostram, Inc.. McNally brought this action against Hostram, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq, alleging his termination resulted from discriminatory practices that targeted older employees. Following his termination, McNally worked at Charleston Industries, performing lobbying services similar to those performed at Hostram. Nevertheless, McNally s employment with Charleston ended after a mere four months. In an attempt to acquire relevant facts from McNally, Hostram sent interrogatories regarding his employment with Charleston. McNally vaguely replied the cessation was mutual. Given the suspicious circumstances surrounding McNally s subsequent employment and his unwillingness to provide more information, Hostram subpoenaed Charleston, seeking pertinent information regarding the termination. McNally moved to quash the subpoena and requested a protective order to bar discovery of information concerning his employment with Charleston. SUMMARY OF THE ARGUMENT This Court should compel Charleston to produce McNally s personnel records because this evidence is relevant to Hostram s after-acquired evidence defense. This Court should also apply a traditional balancing test and hold an 1

employee s theft of confidential documents and subsequent disclosure does not constitute a protected activity under the Age in Discrimination in Employment Act (ADEA). In McKennon, the Supreme Court used equitable principles to analyze the after-acquired evidence doctrine. The same equitable principles that concerned the Court in McKennon logically extend to post-termination misconduct. This concept has been expressly accepted by the Eighth and Tenth Circuits. Furthermore, this extension is implicitly accepted by the Fifth, Sixth, and Eleventh Circuits, which have allowed the after-acquired evidence defense outside of the employeeemployer relationship. Given Hostram s ability to establish a pre-existing basis for pursuing discovery following McNally s suspicious interrogatory responses, this Court should permit discovery of the personnel records. The ADEA provides protections for employees who feel they are being discriminated against based on their age. While important, these protections do not justify an employee s wrongful conduct. These protections should not be corrupted into an excuse for employees to rifle through their employer s confidential documents. Therefore, an employee s theft of an employer s property should only be protected in extremely limited circumstances. The court should apply a traditional balancing test to determine if an employee s theft is considered protected activity. Only a balancing test sufficiently 2

protects an employer s need for confidentiality and protects an employee s rights under the ADEA. A balancing test has been adopted by most circuits. Regardless of what test the court applies, three factors should be considered: the nature of the employee s acquisition of the documents, the employee s dissemination of the documents and the probative value of the documents to the employee s claim. ARGUMENT I. The Use of Post-Termination Misconduct Is Consistent With Supreme Court Standards, Is Used By Appellate Courts Nationwide and Defendant Can Establish a Sufficient Basis of Wrongdoing. Plaintiff Theodore McNally requested a motion to quash Hostram, Inc. s Charleston subpoena and for a protective order to prevent Hostram from obtaining his personnel records. The discovery sought from Charleston is an essential element of Hostram s after-acquired evidence defense, and therefore should be compelled by this Court. The after-acquired evidence defense is analyzed using equitable principles as set forth in Mckennon. It limits an employee s recovery based on after-acquired evidence of that employee s misconduct. McKennon v. Nashville Banner Publishing Co., 513 U,S, 352 (1995). Most appellate courts have extended the equitable principles laid out in McKennon beyond the term of employment. Given the suspicious facts surrounding the termination of McNally s 3

employment with Charleston, Hostram is able to establish a sufficient basis for pursuing additional discovery. A. Application of the After-Acquired Evidence Defense to Post- Termination Misconduct Is a Logical Extension of the Equitable Principles Set Forth in McKennon. In McKennon, the Supreme Court evaluated the ability of an employer, who was guilty of discrimination, to limit its damages because of employee misconduct that was unknown at the time of termination. 513 U.S. 352 (1995). The Court held equitable principles justified application of the employer s after-acquired evidence defense. Id. at 361. The Court held though the principle of unclean hands will not bar an employer s liability, employee wrongdoing is relevant when considering damages. Id. The Court noted there is no bright-line rule for assessing employee misconduct and so courts should evaluate each claim on a case by case basis, using equitable principles as a guide. Id. at 361 62. The equitable principles the Court based its decision on are equally applicable in the post-termination context. The Court was concerned with how the employee s misconduct made her unsuitable for re-employment. The issue is if the Court were to reinstate the employee, the employer would now have grounds to justifiably terminate her. Post-termination misconduct creates the same issue. Though the actions happen at a later time, the employee has nonetheless made 4

himself unsuitable for reinstatement. To preclude post-termination misconduct would be inconsistent with the McKennon decision. Another concern in McKennon was ensuring that the after-acquired evidence defense would not undermine the deterrent effect of the ADEA. Id. at 358. Even if the Court were to find McNally s allegations compelling, Hostram s after-acquired evidence defense would not insulate it from liability for that discrimination. Because the defense does not preclude liability, but merely mitigates damages, it does not thwart Congress goal of eliminating discrimination in the workplace. B. Appellate Courts, Including the Eleventh Circuit, Have Extended the After-Acquired Evidence Defense Beyond the Term of Employment. To be relevant to an after-acquired evidence defense, misconduct does not have to occur during employment. Multiple circuits allow pre-hire misconduct to support an after-acquired evidence defense. In Wallace v. Dunn Construction, Co., the Eleventh Circuit, sitting en banc, extended the principles set forth in McKennon to situations where an employee engaged in pre-hire misconduct. 62 F.3d 374, 379 (11th Cir. 1995). Other appellate courts have also felt that the equitable principles set forth in McKennon can be logically extended outside of the employment context to preclude a malfeasant from collecting damages that he should not be entitled to. See Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106 (5th 5

Cir. 1995); Wehr v. Ryan s Family Steak Houses, Inc., 49 F.3d 1150, 1152 53 (6th Cir. 1995); Russell v. Microdyne Corp., 65 F.3d 1229, 1240 41 (4th Cir. 1995). Numerous courts also extend the after-acquired evidence defense to posttermination misconduct specifically. In Sellers v. Mineta, the Eighth Circuit found after an employee was wrongfully terminated, the employee s misconduct at a subsequent job made her unsuitable for reinstatement. 358 F.3d 1058 (8th Cir. 2004). The court held, It would be inequitable for a plaintiff to avail herself of the disfavored and exceptional remedy of front pay where her own misconduct precludes her from availing herself of the favored and more traditional remedy of reinstatement. Id. at 1064. In Medlock v. Ortho Biotech, Inc., the Tenth Circuit did not deny the applicability of the after-acquired evidence defense to post-termination misconduct, but held the facts of the case were not appropriate for such a defense. 164 F.3d 545, 555 (10th Cir. 1999). In Cohen v. Gulfstream Training Academy, Inc., the Southern District of Florida, relying on the Eleventh s Circuit position in Wallace, refused reinstatement or front pay damages based on the plaintiff s posttermination misconduct and his unsuitability for re-employment. No. 07-60331- CIV, 2008 U.S. Dist. LEXIS 29027, at *5 (S.D. Fla. April 09, 2008). On appeal, the Eleventh Circuit affirmed the decision. Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001). 6

Three district courts are traditionally cited in opposition of expanding the after-acquired evidence defense to post-termination misconduct. McKenna v. City of Philadelphia, 636 F. Supp. 2d 446, 459 (E.D. PA 2009). These courts have held that the after-acquired evidence defense presupposes that an employment relationship existed at the time of the misconduct. Ryder v. Westinghouse Elec. Corp., 879 F. Supp. 534, 537 (W.D. Pa. 1995); Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667, 682 (S.D.N.Y. 1995); Carr v. Woodbury City Juv. Det. Ctr., 905 F. Supp. 619, 627 28 (N.D. Iowa 1995). This logic runs counter to the Eleventh Circuit holding that pre-hire misconduct was grounds for limiting damages in Wallace, despite taking place prior to any employment relationship. 62 F.3d at 379. Thus, these district court opinions can be of no influential value to this Court. C. Given the Totality of Circumstances Surrounding the Termination of Plaintiff s Employment, Defendant Can Provide a Sufficient Pre-Existing Basis to Pursue Additional Discovery in Support of the After-Acquired Evidence Defense. To pursue discovery against a third party, the Middle District of Florida requires a pre-existing basis to believe that after-acquired evidence exists. Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV-COHN/SELTZER, 2010 U.S. Dist. LEXIS 53584, at *16 (S.D. Fla. May 6, 2010). This prevents a party from fishing for evidence. Id. The requests for discovery must not be overly broad and must be reasonably calculated to lead to the acquisition of admissible after-acquired 7

evidence. Premer v. Corestaff Services, L.P., 232 F.R.D. 692, 693 (M.D. Fla. 2005). In this case, the pre-existing basis is grounded in the brevity of McNally s employment with Charleston and his refusal to discuss his suspicious termination. Hostram attempted to obtain information from McNally directly, but his responses were evasive and vague. Furthermore, Hostram s request for discovery is limited to the facts surrounding McNally s termination from Charleston. This Court has noted personnel files are inherently confidential documents in which parties may have a privacy interest. Maxwell v. Health Center of Lake City, Inc., No. 3:05-CV-1056-J-32MCR, 2006 U.S. Dist. LEXIS 36774, at *4 (M.D. Fla. June 6, 2006). However, this Court also established a plaintiff waives their right to privacy when seeking damages for discrimination. See id at *5. Assuming arguendo that Hostram is liable, Hostram should be permitted to put on evidence to limit the scope of available damages. It would be fundamentally unfair for the Court to hold Hostram liable for full damages without hearing evidence of McNally s own misconduct; however, if this Court grants plaintiff s motion, Hostram will be effectively barred from bringing this evidence before the Court. Therefore, the preclusion of such discovery would undermine the equitable principles that underlie the after-acquired evidence doctrine. Additionally, McNally cannot show good cause why this Court should issue 8

a protective order barring Hostram s request for discovery. A Rule 26 motion for protective order is appropriate to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c). Federal Courts have superimposed a balancing of interests approach to Rule 26 s good cause requirement. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001)(citations omitted). This Court must balance McNally s interest in keeping the personnel records private against Hostram s interest in obtaining the information. See id. McNally had the opportunity to disclose the circumstances surrounding the cessation of his employment with Charleston, but chose to be unnecessarily vague. Hostram has a strong interest in limiting the scope of damages by producing evidence of McNally s misconduct. Rule 26 permits a party to obtain discovery regarding any matter, not privileged, which is relevant to the subject claim or defense of any party. Fed. R. Civ. P. 26(b)(1). This Court has broadly construed the term relevant to encompass any matter that bears on, or that reasonably could lead to other matter that bear on, any issue that is or may be in the case. Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 430 (M.D. Fla. 2005). Employee misconduct is relevant to limiting employer s potential damages. Because the circumstances of McNally s termination suggest such misconduct, the narrow discovery sought from Charleston is relevant and should be permitted. 9

This Court should allow Hostram to pursue discovery from Charleston because the same equitable principles which concerned the Supreme Court in McKennon are equally applicable to post-termination misconduct. Appellate courts, including the Eleventh Circuit, have utilized the after-acquired evidence defense outside of the term of employment. The suspicious circumstances surrounding the cessation of McNally s employment at Charleston provide a sufficient basis to permit Hostram s additional discovery. II. Under The Age Discrimination in Employment Act, an Employee May Remove Materials From His Employer in Order to Pursue His Discrimination Claim Only in Limited Circumstances. The ADEA, in an effort to eliminate discrimination in the workplace, provides protections for employees who feel they are being discriminated against based on their age. These protections are important, but they stop short of justifying an employee s wrongful conduct. These protections should not be corrupted into an excuse for employees to rifle through their employer s confidential documents. O Day v. McDonald Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). Therefore, an employee s theft of an employer s property should only be protected in extremely limited circumstances. Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace based on race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a) (2006). The ADEA added age to that list. 29 10

U.S.C. 623(a) (2006). Both statutes forbid discrimination against employees who have opposed unlawful conduct by an employer or participated in an investigation, proceeding, or litigation involving the same. 29 U.S.C. 623(d) (2006); 42 U.S.C. 2000e-3(a) (2006). Most courts that have addressed the issue have found theft of documents from an employer cannot be considered protected activity, except in very limited circumstances. See Kempcke v. Mansanto Co., 132 F.3d 442 (8th Cir. 1998); Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008); O Day, 79 F.3d 756. The court must apply a balancing test, and no other test, to determine when an employee s theft of his employer s property is considered protected activity under the ADEA. See Jeffries v. Harris County Comty. Action Ass n, 615 F.2d 1025 (5th Cir. 1980). 1 A. The Court Should Apply a Balancing Test to Determine if an Employee s Theft of His Employer s Documents Is Considered Protected Activity Under the Age Discrimination in Employment Act. The situations these cases present naturally pit an employer s right to confidentiality and control of their employees in the workplace against an employee s protections under applicable discrimination statutes. The Supreme Court acknowledged this duality in the McKennon case. McKennon, 513 U.S. at 1 Because this case was decided in 1980, prior to the Circuit split, it is binding precedent in the Fifth and Eleventh Circuits. 11

361. A balancing test properly protects these two competing interests. The court should apply a balancing test utilizing three factors. 1. Based on the Inherently Conflicting Interests of the Parties and the Precedent of This Circuit, a Balancing Test Is the Appropriate Test to Apply in This Situation. This Court should apply a balancing test for two main reasons. First, a balancing test effectively protects an employer s need for confidentiality while maintaining an employee s rights under the ADEA. Second, a balancing test has been adopted in some form in nearly every circuit that has addressed the issue of an employee s removal of an employer s confidential documents. a. A Balancing Test Protects an Employer s Need for Confidentiality While Maintaining an Employee s Rights Under the Age Discrimination in Employment Act. Confidentiality is pivotal to an employer s success. Confidentiality allows for progress. It provides an incentive for employers to spend money on risky innovations because they know they can profit from an original idea. Nicholas M. Strohmayer, Note, Drawing the Line: Niswander s Balance Between Employer Confidentiality Interests and Employee Title VII Anti-Retaliation Rights, 95 Iowa. L. Rev. 1037, 1048 49 (2010). Collecting and organizing information is expensive, and dissemination of that information limits the employer s ability to recover those costs, thereby removing the incentive for an employer to collect the information. Id. 12

Congress has recognized the importance of an employer s need for confidentiality in the workplace. When Congress passed Title VII, the prototype of the ADEA, it made clear it did not want to limit an employer s ability to manage the workplace. See Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976). The House Report stated the internal affairs of employers must not be interfered with except to the limited extent that correction is required in discrimination practices. H.R. Rep. No. 88-914, pt. 2, at 29 (1963), reprinted in 1964 U.S.C.C.A.N. 2487, 2516. Congress intended to preserve employer s rights to the greatest extent possible. While a balancing test attempts to protect an employer s need for confidentiality, it also protects an employee s rights against discrimination by placing limits on the employer s right to maintain confidentiality. An employer s need for confidentiality is outweighed when upholding it would prevent an employee from legally preserving evidence of discrimination. See O Day, 79 F.3d at 763; Kempcke, 132 F.3d at 445. b. A Balancing Test Has Been Adopted in Most Circuits. Most circuits that have addressed the issue of an employee s theft of an employer s confidential documents have chosen to apply a balancing test. The Sixth Circuit balances the employer s legitimate need to maintain an orderly workplace and to protect confidential business information with the need of 13

employees to be safeguarded against retaliatory actions. Niswander, 529 F.3d at 722. The Ninth Circuit balances the purpose of the Act to protect persons engaging in activities opposing discrimination against Congress s manifest desire not to tie the hands of employers in the objective selection and control of personnel. O Day, 79 F.3d at 763. The Eighth and Fifth Circuits also balance these competing interests. See Kempcke, 132 F.3d at 445; Jeffries, 615 F.2d at 1036. A balancing test was also adopted by this district. Abernathy v. Walgreen Co., 836 F. Supp. 817, 820 (M.D. Fla. 1992). All of these courts recognize the need to apply a test that provides fair treatment for both of the interests at stake. 2. There Are Three Factors That Consistently Bear on the Balancing Test Analysis. With the exception of the Sixth Circuit, the courts that have adopted a balancing test have not expressly delineated specific factors that should be considered in the analysis, but several issues continually show up. See Kempcke, 132 F.3d at 446; Niswander, 529 F.3d at 726 27; O Day, 79 F.3d at 763. These issues can be summed up in three factors the court should consider when applying the balancing test: the nature of the employee s acquisition of the documents, to whom the employee gave the documents, and the probative value of the documents to the employee s claim. 14

a. The Court Should Consider the Nature of the Employee s Acquisition of the Documents. The court should determine if the employee innocently acquired the documents. Innocent acquisition is a very narrow doctrine that was dispositive in Kempcke. Kempcke was assigned a computer that had previously been used by a Human Resources officer. Kempcke, 132 F.3d at 444. On that computer Kempcke accidentally discovered files that contained evidence of discrimination. See id. The court held that Kempcke had innocently acquired the documents and so his taking was protected activity. Id. at 446. However, in Watkins, Watkins came across a personnel binder left in a common area of the office and copied documents from it that he felt evidenced discrimination. Watkins v. Ford Motor Co., No. C-1-03-033, 2005 U.S. Dist. LEXIS 33140, at *18 (S.D.OH. Dec. 15, 2005). The court held that Watkins actions did not qualify as innocent acquisition under Kempcke. Id. at 18. The court instead likened Watkins conduct to that of the employee in O Day who rummaged through his supervisor s desk. O Day, 79 F.3d at 758. The court in Watkins recognized that innocent acquisition should be treated as a very narrow doctrine. In the words of the O Day court, the court should be loathe to provide employees an incentive to rifle through confidential files. Id. at 763. In analyzing the nature of an employee s acquisition of the documents, the court should always consider the availability of alternatives for acquiring those 15

documents other than stealing. Employees are able to acquire important documents to support their claim of discrimination using discovery. Watkins, 2005 U.S. Dist. LEXIS 33140 at *23. An employee has legitimate legal means of preserving evidence of discrimination, and so the circumstances that qualify as innocent acquisition outside of those means should be limited. b. The Court Should Consider to Whom the Employee Gave the Documents. The court should consider the employee s dissemination of the documents. This factor was given great weight in the O Day case. O Day showed the confidential documents to a co-worker. Id. at 758. The court held that the ADEA was not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior. Id. at 764. The court held that O Day was not engaged in protected activity. Id. Other courts have generally agreed that dissemination of the documents to a third party, other than the employee s actual attorney in charge of present litigation, is not protected activity. Even in Kempcke, a case where the employee s actions were found to be protected activity, the court noted that there was a dispute whether Kempcke had given the documents to anyone other than his attorney. Kempcke, 132 F.3d at 446. The court stated that such conduct would be unworthy of protection. Id. If an employee disseminates stolen documents to anyone other than their attorney, their activity should not be protected under the ADEA. 16

c. The Court Should Consider the Probative Value of the Documents to the Employee s Claim. The court should examine the probative value of the stolen documents to the employee s claim. This issue was addressed thoroughly in Niswander. Niswander gave documents to her attorneys, admitting they had no relevance to her claim but stating they would help her to remember other instances of discrimination. Niswander, 529 F.3d at 727. The court held that this was clearly not protected activity that justified violating a company s privacy policy. Id. Similarly, in O Day, after merely being denied a promotion, O Day stole documents related to his employer s lay-off decisions. O Day, 79 F.3d at 763. The court narrowly construed what should be considered relevant to an employee s claim. The court held that O Day s activity was not protected, partially because the lay-off documents were not relevant to his failure to promote claim since he had not been given any indication he was going to be laid off. Id. The court did not want to encourage employees to go looking for information that may come in handy in later litigation. Id. If an employee steals documents not relevant to his discrimination claim, his activity should not be protected. Relevance should be construed narrowly to avoid giving employees a license to rifle through confidential company files. 17

B. The Court Should Not Apply Any Other Test to Determine if an Employee s Theft of His Employer s Documents Is Considered Protected Activity Under the Age Discrimination in Employment Act. Though most circuits that have addressed this question have applied a balancing test, there are proponents who support the application of an objective test. The problem with a different test, like an objective test, is it does not adequately protect the employer s rights. However, if the court were to apply another test the best way to provide some protections for employers is to apply the same factors listed under the balancing test above. 1. The Court Should Not Apply an Objective Test Because It Does Not Adequately Protect an Employer s Right to Confidentiality. An objective test focuses solely on the employee. The person who stole company property has all the power to attempt to justify their actions. An objective test simply determines if a reasonable person in the employee s situation would have acted the same way. Under this test, the employer s interests are given little consideration. As was mentioned previously, this is not what Congress intended. An objective test simply does not adequately consider the employer s interests in keeping documents confidential. 18

2. If the Court Chooses to Apply an Objective Test, the Same Three Factors That Apply to the Balancing Test Should Also Bear on This Analysis. If the court chooses to apply an alternative test, such as an objective test, the court should consider the same factors applied under a balancing test: the nature of the employee s acquisition of the documents, to whom the employee gave the documents, and the relation of the documents to the employee s claim. These are all applicable in determining what a reasonable person would have done. These factors all relate to the circumstances in which the employee acted and reasonableness is always considered in light of the circumstances. If an employee did not innocently acquire the documents, then it is evidence the employee s actions were not reasonable; if the employee disseminated the documents to third parties, then it would suggest that his actions were not reasonable; if an employee stole documents not relevant to his claim of discrimination, then certainly the employee was not acting reasonably. Another reason to apply these factors under any test is because they minimally consider the employer s interest. Although an objective test does not lend itself well to proper consideration of the employer s rights, these factors help correct that deficiency. The court should apply these factors under any test it chooses to adopt. 19

CONCLUSION This Court must deny McNally s motion to quash and for protective order because the after-acquired evidence defense applies to post-termination misconduct, and Hostram has a sufficient basis for believing McNally committed a terminable transgression while employed at Charleston. Moreover, an employee may remove materials that assist in his discrimination claims only in extremely narrow circumstances. This protects the balance envisioned by Congress in the ADEA. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 3.01(j), Plaintiff hereby requests three hours for oral argument before this Court regarding this matter. /s/ Jane Doe Jane Doe State Bar No. 0000001 Doe & Doe Law Firm 1401 61st St S Gulfport, FL 33707-3299 (727) 562-7800 Jane@Doe&Doe.com /s/ John Doe John Doe State Bar No. 0000002 Doe & Doe Law Firm 1401 61st St S Gulfport, FL 33707-3299 (727) 562-7800 John@Doe&Doe.com 20