Hetreed v. Allstate Ins. Co.

• Decision Date: 06 February 1998
• Docket Number: No. 97-1986,97-1986
• Citation: 135 F.3d 1155
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 462, 72 Empl. Prac. Dec. P 45,163 Mary Ann HETREED, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1155

135 F.3d 1155

76 Fair Empl.Prac.Cas. (BNA) 462,

72 Empl. Prac. Dec. P 45,163

Mary Ann HETREED, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

No. 97-1986.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1998.

Decided Feb. 6, 1998.

Michael L. Closen (argued), John Marshall Law School, Donald G. Weiland (argued), Chicago, IL, for Plaintiff-Appellant.

Brenda H. Feis (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Defendant-Appellee.

Before WOOD, Jr., EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Eleven months after she filed a suit charging her employer with sex discrimination, Mary Ann Hetreed was fired. She believes that the discharge was an act of retaliation for the suit and asked the district court to reinstate her pending the outcome of the main claim. Allstate, her former employer, agrees that the suit is causally related to the discharge but offers a reason other than retaliation: during discovery Hetreed revealed that she had used her position to obtain information about Allstate's defense of the suit and, when questioned, lied about what she had done. Hetreed was a senior manager in Allstate's audit department with supervisory authority over a staff of 40, and Allstate contends that it could not tolerate the continued presence of a deceitful auditor. Hetreed's motion for a preliminary injunction that would oblige Allstate to reinstate her was denied, leading to this interlocutory appeal.

Allstate proceeded in two stages, as did Hetreed's motion. In February 1997 Allstate suspended her, with pay, during an investigation of her actions and statements. She sought an injunction against the suspension, which the district court denied on March 7, 1997, remarking in the course of the hearing that continuation of her pay made it hard to see how the suspension could cause irreparable harm. Later that day Allstate fired Hetreed, who immediately filed a motion asking the district judge to hold Allstate in contempt of court. Because the judge had denied Hetreed's motion, there was no outstanding order that Allstate could have disobeyed; a judge's oral remarks during a hearing are not injunctions. Bates v. Johnson, 901 F.2d 1424 (7th Cir.1990). Allstate reasons from this that Hetreed's current appeal, from the denial on March 20 of the motion to hold Allstate in contempt, does not present any question about whether an injunction should have been entered. But the district judge, well understanding that Allstate had not violated any order entered on March 7, treated Hetreed's protest as a renewed motion for injunctive relief. The order explicitly denying that implicit request is appealable under 28 U.S.C. § 1292(a)(1).

While her charge of discrimination was pending before the EEOC, Hetreed asked a subordinate to generate a report of all payments to the law firm Allstate had engaged to defend itself against her claims. She forwarded the information to her own lawyers and produced the cover memorandum during discovery. When asked at her deposition how she came to access confidential corporate information, Hetreed denied obtaining the information herself and asserted that someone else had generated the information for an earlier audit year. This answer was false: the report, which Allstate had not yet seen, had been created at Hetreed's request on March 12, 1996, the day before her memo to her lawyer. Allstate opened an internal investigation, but Hetreed refused to discuss the subject without her lawyer. When the interview was held in her lawyer's presence she gave answers that were either incomplete and misleading (her view of things) or complete fictions (Allstate's view). After finding a memorandum from Hetreed to a subordinate ordering him to produce a "detail[ed]" and "total" report of all fees paid to the law firm defending the suit, Allstate suspended her pending further investigation, and Hetreed sought judicial relief. Testifying during the hearing on her motion for a preliminary injunction, Hetreed conceded that she had twice (at the deposition and during the internal interview) denied accessing information about the law firm and its fees but contended that "access" is a "very specific technology word" and does not mean obtaining access to but deals only with the physical steps of report generation--which her subordinate had performed. Hetreed asserted that it was thus proper to assure Allstate that she had never "accessed" the information in question and indeed did not "know how" to do so (although her memorandum to her own law firm asserted: "I ran a computer listing of all payments to [Allstate's lawyers] from April 11, 1995 through February 11, 1996."). Hetreed also contended that she told the subordinate to obtain this information because, as Allstate's auditor, it was her job to ensure that Allstate had retained competent counsel to defend against her suit--though she did not explain how billing information reveals legal acumen, why she did not report her findings candidly to her superiors, or why she immediately disclosed the information to her own lawyer. Allstate contends that Hetreed displayed poor judgment by using her position to obtain and disclose information of personal value, and that Hetreed's answers at the deposition and internal interview--of which "incomplete and misleading" is the description most favorable to Hetreed--made it impossible for Allstate to repose trust in her. Integrity is vital to any...