Niswander v. Cincinnati Ins. Co.

• Decision Date: 24 June 2008
• Docket Number: No. 07-3738.,07-3738.
• Citation: 529 F.3d 714
• Parties: Kathy NISWANDER, Plaintiff-Appellant, v. The CINCINNATI INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

529 F.3d 714

Kathy NISWANDER, Plaintiff-Appellant, v. The CINCINNATI INSURANCE COMPANY, Defendant-Appellee.

No. 07-3738.

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2008.

Decided and Filed: June 24, 2008.

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.

Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which ROGERS, J., joined. McKEAGUE, J. (p. 729-30) delivered a separate concurring opinion and GILMAN, J. (p. 730) delivered a separate concurring opinion in response to Judge McKEAGUE'S writing.

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).

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 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 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...