We previously wrote about a New Jersey Appellate Division decision upholding a criminal indictment against Ivonne Saavedra for stealing documents from her employer to support her discrimination and whistleblower lawsuit. On June 23, 2015, the Supreme Court of New Jersey affirmed the Appellate Division decision, thereby preserving the criminal charges against Saavedra.

Saavedra worked as a tenured clerk for the North Bergen Board of Education. In November 2009, Saavedra and her son, who worked part-time for the Board, filed a discrimination and whistleblower lawsuit against the Board and certain other individuals. The lawsuit alleged gender and race discrimination and that the Board terminated her son in retaliation for various complaints she raised about its pay practices, unsafe conditions, and violations of child study team regulations. In the course of the discrimination and whistleblower lawsuit against the Board, Saavedra turned over approximately 367 confidential student educational and medical records that she stole. 

The Board’s general counsel contacted the county prosecutor, who presented the matter to a grand jury. The grand jury indicted Saavedra for misconduct and theft. Saavedra moved to dismiss the indictment, arguing that the Supreme Court of New Jersey’s decision in Quinlan v. Curtiss-Wright Corp. permitted her to take the documents for her discrimination and whistleblower case. The trial court denied the motion and the Appellate Division affirmed. 

The Supreme Court of New Jersey upheld the Appellate Division’s decision, refusing to find that its Quinlandecision protected Saavedra from criminal prosecution. The Court explained that its decision in Quinlan“did not endorse self-help as an alternative to the legal process in employment discrimination litigation . . . [n]or did [it] bar prosecutions arising from an employee’s removal of documents from an employer’s files for use in a discrimination case, or otherwise address any issue of criminal law.” This decision clarifies that, while Quinlan may protect an employee from termination after he or she steals documents from an employer to support a discrimination claim, it will not protect that employee from criminal prosecution. The Court emphasized that the appropriate way to obtain information to support a lawsuit is through the discovery process, not by committing theft. However, the Supreme Court did note that Saavedra could assert a justification affirmative defense at her criminal trial by explaining her reasons for taking the documents and her planned use of them.

Although this decision is encouraging for employers, it is important to keep in mind that Saavedra was a public employee who stole documents containing private information about children. Therefore, with New Jersey’s tendency to assist whistleblowers and avoid anything that may chill whistle-blowing, a competing interest less dramatic than private information about children may have borne a different result.