Rebello v. Lender Processing Servs., Inc., No. 101764.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtEILEEN A. GALLAGHER, P.J.
Citation30 N.E.3d 999
Docket NumberNo. 101764.
Decision Date09 April 2015
PartiesCarrie REBELLO, Plaintiff–Appellant v. LENDER PROCESSING SERVICES, INC., et al., Defendants–Appellees.

30 N.E.3d 999

Carrie REBELLO, Plaintiff–Appellant
v.
LENDER PROCESSING SERVICES, INC., et al., Defendants–Appellees.

No. 101764.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 9, 2015.


30 N.E.3d 1001

Andrew A. Kabat, Daniel M. Connell, Haber Polk Kabat, L.L.P., Cleveland, OH, for appellant.

30 N.E.3d 1002

James E. Davidson, Mary F. Geswein, Ice Miller L.L.P., Columbus, OH, for appellees.

Before E.A. GALLAGHER, P.J., E.T. GALLAGHER, J., and LASTER MAYS, J.

Opinion

EILEEN A. GALLAGHER, P.J.

{¶ 1} Plaintiff-appellant Carrie Rebello appeals from the trial court's judgment entering a directed verdict on her claim for wrongful discharge in violation of public policy against defendants-appellees Lender Processing Services, Inc., et al. (collectively, “LPS”).1 Rebello claims that she was wrongfully terminated in violation of public policy from her employment at LPS because she objected to, and threatened to, report LPS's practice of password sharing among LPS employees when accessing the nonpublic customer information of one of its largest clients, JPMorgan Chase Bank, N.A. (“Chase”). For the reasons that follow, we reverse the trial court's judgment.

Procedural and Factual Background

{¶ 2} LPS is in the business of providing processing, technology and field services to clients, including mortgage lenders and financial institutions. The services provided by LPS include inspections, property validation for repairs and services and loss mitigation in connection with defaulted assets. From August 2009 until her termination on April 11, 2012, Rebello was employed by LPS as a supervisor in its property preservation department. She worked in LPS's Solon, Ohio office. Rebello supervised a team of employees who provided field services for properties owned by customers of Chase that were in default or foreclosure. In performing property preservation services for Chase, LPS employees used a secured, electronic database (the “MSP system”) to access the nonpublic information of Chase's customers. Accessing the MSP system involved a two-step process: (1) Chase provided tokens to LPS employees that included random PIN numbers and (2) LPS employees were required to enter a username and password after using the token. All LPS employees were screened by both Chase and LPS before receiving log-in credentials. Chase, however, ultimately controlled who at LPS was authorized to access Chase's customer information on the MSP system. For LPS employees to be authorized to access Chase's customer information, they had to be both (1) authorized by LPS to work on the Chase account and (2) authorized by Chase to access Chase's account information through the MSP system. This process included training, a background check and a drug test. Once authorized by Chase, the LPS employee received a token and a unique username/password to access the MSP system.

30 N.E.3d 1003

{¶ 3} Over the course of the relationship between LPS and Chase, LPS employees encountered difficulties in accessing the MSP system due to delays in receiving the authorizations or tokens necessary to access the system. As a “work around” to the access problem, LPS employees began to share tokens, usernames and/or passwords (“password sharing”).

{¶ 4} Both LPS and Chase had clear policies prohibiting password sharing among LPS employees. Section 10.3 of the Master Agreement governing the relationship between Chase and LPS (the “Master Agreement”) provided:

Login Ids for System Access
JPMC [Chase] will assign a login code (a “Login ID ”) to each of the Supplier [LPS] Personnel who will have access to the JPMC Systems. Only the individual who was assigned a Login ID may use that Login ID. Supplier will not permit any Login ID to be shared or used by any other individual. Supplier will be responsible for all access to the JPMC Systems by any person using a Login ID issued to any of the Supplier Personnel.

Section 10.5 of the agreement further provided that LPS was to immediately notify Chase of any actual or threatened and confirmed security breach in or unauthorized access to Chase's systems.

{¶ 5} Jack Evans, Chase's vice president in property preservation and the Chase relationship manager or “point person” for LPS, testified that Chase's password policy was designed to prevent unauthorized use and disclosure of nonpublic information belonging to Chase's customers. LPS's management similarly acknowledged that Chase's and LPS's anti-sharing policies were designed, at least in part, to help prevent unauthorized persons from accessing Chase's customers' nonpublic information. For example, Curtis Larson, Rebello's supervisor from 2009 to October 11, 2011, testified that “the concept” of prohibiting password sharing was “to help protect those who were not authorized and did not have the ability to otherwise access a consumer's [nonpublic information].” Lori Fryer, Rebello's supervisor from October 2011 until her termination in April 2012, similarly acknowledged that if passwords were shared among LPS employees, the confidentiality of Chase's customers' nonpublic information could be jeopardized. Notwithstanding their knowledge of the policies prohibiting password sharing, LPS's property preservation supervisors and managers did not stop the practice because they felt they needed to share passwords in order to handle the volume of business that Chase was assigning to LPS. Evans testified that, other than a couple of days in February 2010, when LPS employees were having problems logging onto the MSP system and Chase granted LPS employees permission to share passwords, he was not aware that LPS employees were sharing passwords. Evans further testified that he believed the subsequent password sharing he later learned was occurring among LPS employees violated the master agreement because “when passwords were being shared, that meant somebody had unauthorized access to personal customer information that they were not entitled to” but that he was not aware of “any unauthorized disclosure of any non-public information by LPS” or “any individuals who somehow suffered any kind of damage” as a result of password sharing by LPS.

{¶ 6} Rebello testified that she first learned that LPS employees were sharing passwords in January 2010. She testified that she thereafter had several discussions with her then supervisor, Larson, regarding the issue. She testified that Larson responded that password sharing was “a

30 N.E.3d 1004

temporary fix.” Larson acknowledged that Rebello had raised concerns regarding password sharing with him. Although he did not recall specifically what was said, he testified that he recalled telling Rebello something to the effect of “[m]anagement is working on the issue. Continue to focus on your job.” Larson further testified that upper management was aware that password sharing was occurring and that although he knew LPS had an obligation under its contract with Chase to immediately notify Chase of any unauthorized access to the MSP system and to inform Chase that its employees were sharing passwords, LPS did not inform Chase that its employees were sharing passwords, deciding instead “to handle the matter internally.” Despite her concerns regarding password sharing, Rebello testified that she was aware that other LPS employees were using her password to work on the Chase account.

{¶ 7} Password sharing intensified in October 2011, when Chase began to “dramatically increase” the volume of work being handled by LPS. At that time, Lori Fryer took over management of the Chase account. To handle the increased workload, LPS hired additional employees and requested additional authorizations from Chase for those employees to access the MSP system. LPS was unable to get Chase to promptly assign passwords and grant access to all the LPS employees who were hired to work on the Chase account. As a result, LPS's employees did not have sufficient access to the MSP system and resorted to password sharing to perform the work LPS was receiving from Chase.

{¶ 8} Rebello testified that shortly after Fryer took over management of the Chase account in October 2011, Rebello had discussions with her regarding password sharing. Rebello testified that she told Fryer that there was a problem with password sharing and that they needed to address it and get additional access from Chase. Fryer told her to “[s]tay the course” and that she was handling the issue. Fryer testified that at the time, she knew that password sharing was prohibited by Chase's and LPS's policies, put the nonpublic information of Chase's customer's at risk and exposed both Chase and LPS to potential violations of the law. She further testified that although she knew she had an obligation to inform Chase that passwords were being shared, she did not disclose the practice to Chase because she knew it was prohibited and did not want to risk losing the Chase account. Fryer did not inform her supervisors that passwords were being shared. Instead, Fryer testified, she contacted Chase executives and requested that they become more involved in acquiring the number of tokens LPS...

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4 practice notes
  • Cruz v. English Nanny & Governess Sch. Inc., No. 103714
    • United States
    • United States Court of Appeals (Ohio)
    • June 8, 2017
    ...only under limited circumstances when all four elements are satisfied. Rebello v. Lender Processing Servs., Inc ., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 28 (8th Dist.). {¶ 66} The clarity and the jeopardy elements are questions of law and policy to be determined by the court. Kulch v. Structural......
  • Lanzer v. City of Louisville, No. 2015 CA 00170.
    • United States
    • United States Court of Appeals (Ohio)
    • December 5, 2016
    ...or state statutes, administrative rules and regulations, or common law." Rebello v. Lender Processing, Servs., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 29 (8th Dist.). "A public policy sufficient to overcome the presumption in favor of employment at will is not limited to instances in whi......
  • Shingler v. Provider Servs. Holdings, L.L.C., No. 106383
    • United States
    • United States Court of Appeals (Ohio)
    • July 12, 2018
    ...Governess School, Inc., 8th Dist. Cuyahoga No. 103714, 2017-Ohio-4176,¶ 65; Rebello v. Lender Processing, Servs., Inc., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 28 (8th Dist.). The clarity and jeopardy elements are questions of law to be decided by the court; the causation and overriding justificat......
  • Sygula v. Regency Hosp. of Cleveland E., No. 103436.
    • United States
    • United States Court of Appeals (Ohio)
    • May 5, 2016
    ...or state statutes, administrative rules and regulations, or common law." Rebello v. Lender Processing, Servs., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 29 (8th Dist.). "A public policy sufficient to overcome the presumption in favor of employment at will is not limited to instances in whi......
4 cases
  • Cruz v. English Nanny & Governess Sch. Inc., No. 103714
    • United States
    • United States Court of Appeals (Ohio)
    • June 8, 2017
    ...only under limited circumstances when all four elements are satisfied. Rebello v. Lender Processing Servs., Inc ., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 28 (8th Dist.). {¶ 66} The clarity and the jeopardy elements are questions of law and policy to be determined by the court. Kulch v. Structural......
  • Lanzer v. City of Louisville, No. 2015 CA 00170.
    • United States
    • United States Court of Appeals (Ohio)
    • December 5, 2016
    ...or state statutes, administrative rules and regulations, or common law." Rebello v. Lender Processing, Servs., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 29 (8th Dist.). "A public policy sufficient to overcome the presumption in favor of employment at will is not limited to instances in whi......
  • Shingler v. Provider Servs. Holdings, L.L.C., No. 106383
    • United States
    • United States Court of Appeals (Ohio)
    • July 12, 2018
    ...Governess School, Inc., 8th Dist. Cuyahoga No. 103714, 2017-Ohio-4176,¶ 65; Rebello v. Lender Processing, Servs., Inc., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 28 (8th Dist.). The clarity and jeopardy elements are questions of law to be decided by the court; the causation and overriding justificat......
  • Sygula v. Regency Hosp. of Cleveland E., No. 103436.
    • United States
    • United States Court of Appeals (Ohio)
    • May 5, 2016
    ...or state statutes, administrative rules and regulations, or common law." Rebello v. Lender Processing, Servs., 2015-Ohio-1380, 30 N.E.3d 999, ¶ 29 (8th Dist.). "A public policy sufficient to overcome the presumption in favor of employment at will is not limited to instances in whi......

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