Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.

• Decision Date: 31 May 2016
• Docket Number: SJC–11901.
• Citation: 474 Mass. 382,50 N.E.3d 778
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Kamee VERDRAGER v. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C., & others.

474 Mass. 382

50 N.E.3d 778

Kamee VERDRAGER

v.MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C., & others.¹

SJC–11901.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 5, 2015.

Decided May 31, 2016.

Kamee Verdrager, pro se.

Joan A. Lukey (Justin J. Wolosz with her), Boston, for the defendants.

Ellen J. Messing, Boston, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

Ben Robbins & Martin J. Newhouse, Boston, for New England Legal Foundation & another, amici curiae, submitted a brief.

Present: BOTSFORD, DUFFLY, LENK, & HINES, JJ.

LENK, J.

General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender. It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted). See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F.Supp.3d 339, 350 (D.Mass.2015) (interpreting G.L. c. 151B). Here, we are asked to determine whether summary judgment should have entered for the employer on an employee's claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee's attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim.

The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD), that she was being subjected to discriminatory treatment on the basis of her gender—treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm's document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm's chairman, the plaintiff's employment was terminated “for cause.”

In November, 2009, the plaintiff filed the present action in the Superior Court, which, as amended, named as defendants the firm, certain firm “members”² with whom she worked, and the firm's chairman, R. Robert Popeo. The complaint alleged that both the plaintiff's demotion and her termination were the result of discrimination on the basis of gender, and that both also constituted retaliation for her having opposed such discrimination. The complaint specified five counts pursuant to G.L. c. 151B, § 4 : gender discrimination (against all defendants except Bret Cohen); pregnancy discrimination³ (against the firm); aiding and abetting discrimination (against all except the firm and Cohen); failure to investigate and remedy discrimination (against the firm); and retaliation (against all except Cohen). A sixth count, tortious interference with contractual relations, was filed only against Cohen, who was not named in any of the other counts. The defendants then counterclaimed on various grounds.⁴ Following cross motions for summary judgment, only three of the defendants' counterclaims survived,⁵ and all of the plaintiff's claims were dismissed. The plaintiff appealed from the dismissal of her claims,⁶ and we allowed her petition for direct appellate review.

We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation.⁷ Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee's accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute “protected activity,” but only where her actions are reasonable in the totality of the circumstances.⁸ Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations.

1. Background. We summarize the facts, which are generally undisputed, “drawing inferences in favor of the plaintiff where they may reasonably be drawn from the facts.” Young v. Boston Univ., 64 Mass.App.Ct. 586, 587, 834 N.E.2d 760 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 61, 166 L.Ed.2d 56 (2006). To the extent that facts are disputed, we resolve them in favor of the plaintiff. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007). We reserve certain details for later discussion.

After graduating from law school in 1999, the plaintiff practiced employment and labor law in New York. In June, 2004, she began work as a fifth-year associate at the firm's Boston office, in its employment, labor, and benefits (ELB) section.

Throughout the course of the plaintiff's employment, the firm had in place an “Electronic Information System [EIS] Acceptable Use Policy” (EIS policy). On June 16, 2004, the plaintiff signed a copy of that policy and agreed to be governed by its provisions. The plaintiff was trained in the use of Desksite, a document management system used by the firm, at the beginning of her employment. She was told that she “was supposed to save almost all documents which she authored to the public section of DeskSite” and “was expected to search the system regularly in connection with her work.” Any documents in the “public” section of that system “were available to everyone in the firm who could access DeskSite.” Such documents could be accessed directly or could be found through a general word search of the system's contents. Users also could choose, however, to save documents in a “private” section of the system, accessible only to themselves or to individuals that they specified. The EIS policy provided that the “EIS should be used, with limited exceptions, only for job-related communications. Although personal use is permitted, employees should do so with the full understanding that nothing is private ” (emphasis in original). Associates frequently used Desksite for personal or nonbusiness reasons, including to check the time records of other associates to see “who was getting the most work.”

The firm also had in place a confidentiality policy, which stated that “[a]ll documents, correspondence, forms and other work product created or produced by the firm in connection with the delivery of legal services to the firm's clients are the sole property of [the firm] and its clients. Such material should not be removed from the office or used for any reason other than for or in connection with the delivery of services on behalf of the firm.”

Shortly after joining the firm, in late June and early July, 2004, the plaintiff was assigned to work with Cohen, a member in the ELB section, to draft a brief on behalf of one of the firm's clients. In an electronic mail message dated July 19, 2004, Cohen stated that the client “has really liked our pleadings to date. Let's keep up the good work!” Another firm member, who also worked on the brief, later wrote in an evaluation that the plaintiff

“not only has a sound command of legal principles but she appears to have great intuition and reaction to legal issues that will make her an excellent advisor to clients and an attorney who has much to contribute to strategic issues in matters. On numerous matters in [this] case she has dropped by my office to discuss an issue and her intuitive response to the issue has been on point and well-considered.... I have not witnessed [her] interaction with clients, but I do know that she has had extensive contact with opposing counsel and the client in [this] matter. My impression is that [the client] has appreciated [the plaintiff's] counsel and that [she] is well-respected and had ‘run with the ball’ in connection with opposing counsel in the matter.... I would certainly like to work with her again on any matters that involve ELB litigation[.]”

The plaintiff maintains that, while Cohen and the plaintiff were working on this brief, he made a number of inappropriate, sexually-charged comments to her.⁹ At some point in July, 2004, the plaintiff complained of these incidents to the firm's human resources office. In mid-August, 2004, the plaintiff spoke with, among others, the firm's managing director, Peter Biagetti, and with the attorney managing the ELB section, defendant Robert Gault, about the incidents. Gault and Biagetti met with Cohen in August, 2004, to discuss the plaintiff's assertions. Gault and Biagetti concluded that her complaints were “management style complaints” rather than “complaints related to gender differences,” and decided to hire an executive coach to work with Cohen. At some point during that summer, firm chairman Popeo was informed of the plaintiff's complaints. Popeo spoke with Biagetti and was told that Biagetti had looked into the complaints and had found no evidence of gender-based discrimination.¹⁰

In October, 2004, after a client complained to Cohen about the plaintiff's performance, Cohen asked the client to submit the complaint in writing, which Cohen then forwarded to Gault, the ELB section manager, and Starr, the director of human resources.¹¹

Also in October, 2004, various individuals, both members and associates, told the plaintiff that Cohen was making negative remarks about her. In evaluating the plaintiff's performance in the fall of 2004, Cohen rated it as “usually below expectations.” He wrote that the plaintiff

“needs a great deal of help on her writing. She is smart and seems to have a great deal of institutional knowledge but, at least when I dealt with her, was unable to translate her knowledge into a cohesive thought.... Orally, I find that she does not speak

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