Quinlan v. Curtiss-Wright Corp., 2009 WL 2431505 (App. Div., August 11, 2009) – The Appellate Division recently held that the unprotected activity of taking an employer’s confidential documents does not become protected activity merely because the documents are later used in litigation. The plaintiff filed suit alleging gender discrimination and other claims after being passed over for a promotion. She then began to copy company documents, which she gave to her attorney to bolster her case. Her employer initially took no action, until it learned in the course of a deposition that she was also copying other employees’ personnel files. The plaintiff was then terminated, after which she added a retaliation claim.

The court rejected the plaintiff’s argument that, even if the initial conduct in copying documents was unprotected activity, their use in litigation was protected activity, for which she could not be terminated. Even if the plaintiff had obtained the confidential documents in the normal course of her job duties, the court said, she is not permitted to copy them and use them in litigation against her employer. To hold otherwise would “encourag[e] employees to go through their employers’ files and copy confidential material, secure in the knowledge that employers could do nothing so long as that material was later used in litigation.”