Limits of Quinlan: Theft of Documents by the Plaintiff in an Employment Case May Be a Criminal OffenseJanuary 6, 2014 – Alerts Labor & Employment Alert
In a recent noteworthy decision, State v. Saavedra, Docket No. A-1449-12T4 (Dec. 24, 2013), the New Jersey Appellate Division refused to categorically insulate employees from criminal prosecution when a public-sector employee stole confidential employer documents to support her Law Against Discrimination (LAD) and Conscientious Employee Protection Act (CEPA) claims.
The defendant employee in Saavedra was a public-sector employee who took highly confidential original documents belonging to her employer, the North Bergen Board of Education, contending that she did so to support her employment discrimination lawsuit under the New Jersey LAD and the CEPA. The defendant employee was charged with second-degree official misconduct and third-degree theft of movable property.
The defendant moved to dismiss the indictment, asserting that her actions were not criminally sanctionable under Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010), which establishes (she asserted) an absolute right for employees with employment discrimination lawsuits to take potentially incriminating documents from their employers. The court in Quinlan held that a private-sector employee was engaged in protected conduct when she copied confidential documents at work for use in her discrimination law suit.
The Appellate Division disagreed with the defendant employee’s position, noting that Quinlan, a private-sector employment discrimination case, created a seven-part totality of the circumstances test to determine whether the employer can terminate its employee for the unauthorized taking of its documents. Saavedra held that a criminal court judge is not required to perform a Quinlan analysis to decide a motion to dismiss an indictment charging a defendant with official misconduct predicated on an employment-related theft of public documents. Instead, the motion to dismiss such an indictment would be treated the same as any motion relating to criminal conduct: if the state could produce sufficient evidence to establish a prima facie case that the defendant committed a crime, then the motion should be denied.
Quinlan and Saavedra may be distinguished on several grounds: (1) Quinlan dealt with a private-sector employee/employer, while Saavedra dealt with a public servant; (2) Quinlan’s employee defendant did not actually take the documents, she just copied them, whereas the defendant in Saavedra took original documents; and (3) Quinlan was a civil case, while Saavedra was a criminal proceeding. Thus, attempting to reconcile Quinlan and Saavedra leaves plenty of unanswered questions for the lower courts to decide. In Saavedra, although the Appellate Division noted how the employee was a public servant, and the holding in fact explicitly mentions “theft of public documents,” the decision did not confirm that private-sector employees would be treated any differently during a criminal prosecution if the employee’s actions could sustain a criminal indictment.
Nevertheless, it is clear that nothing in Quinlan prevents the criminal prosecution of public employees for criminal conduct committed in furtherance of an employment discrimination case. The Appellate Division refused to adopt a broad public policy that such employees are categorically insulated from criminal prosecution if they take confidential employer documents to support potential LAD and CEPA claims.