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

Supreme Judicial Court of Massachusetts, Suffolk

May 31, 2016

Kamee Verdrager
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., & others. [1]

         Argued November 5, 2015.

          Civil action commenced in the Superior Court Department on November 3, 2009.

         The case was heard by Peter M. Lauriat, J., on motions for summary judgment.

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          Kamee Verdrager, pro se.

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

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

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

         Present: Botsford, Duffly, Lenk, & Hines, JJ.


          Lenk, J.

          [50 N.E.3d 783] 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 [50 N.E.3d 784] 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

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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 discrimination[3] (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 [50 N.E.3d 785] 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

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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

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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 [50 N.E.3d 786] 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

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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, [50 N.E.3d 787] 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 with confidence. For example, she says 'um' a lot."

         The concerns regarding the plaintiff's writing were echoed in the comments of her other evaluators. Defendant Donald Schroeder, then a senior associate in the ELB section, who would later be promoted to membership, rated the plaintiff's performance as " always meets expectations." In his written comments, however, he added that the plaintiff " needs to develop her analytical writing skills and organize her thoughts more clearly on paper." Gault rated her work as " usually meets expectations" and noted that " I

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do not have much exposure" to her work but " I've seen a few things [in her writing] that suggest a need for more attention to detail."

         In January, 2005, Cohen increased the scope of a research project he had assigned to the plaintiff. This project did not count toward her quota of hours billable to clients. Based on conversations she had at the time with her colleagues, the plaintiff maintains that the scope of the nonbillable work assigned to her was greater than that assigned by Cohen to other associates, a point that Cohen disputes.

         On February 2, 2005, the United States Court of Appeals for the Fourth Circuit upheld a jury verdict in favor of a female employee in the firm's Virginia office. See Gallina vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, 123 Fed.Appx. 558, 567 (2005) ( Gallina ). The jury found that, in violation of Federal antidiscrimination laws, the firm had retaliated against the employee for complaining of what she believed to be discriminatory treatment on the basis of her gender. 123 Fed.Appx. at 564. On February 11, 2005, Cherie Kiser, a member in the firm's Washington, D.C., office who chaired the firm's diversity committee, left a voicemail message for Popeo expressing her concern that the firm in general, and section manager Gault, in particular, did not take seriously employees' complaints of gender discrimination. Popeo later spoke with Kiser, stating his commitment to combatting discrimination based on gender, but suggesting that Kiser was " overreacting" to what " she was hearing from Gault."

         In March, 2005, the plaintiff underwent her annual performance review. Among her evaluators were Schroeder and Gault. She received an over-all rating of " always meets expectations" in five competencies, and an over-all rating of " usually meets expectations" in another six competencies. Each evaluator also provided written comments. Gault wrote that the plaintiff " seems very smart but [I] think the writing issues may mask some of her inherent intellectual ability." Schroeder wrote that " her writing style is too informal" and that " [s]he needs to proofread her work and pay more attention to detail." Some of the other comments were positive, including a comment from Gault that the plaintiff " [s]eems to have a pretty good substantive knowledge of a lot of general employment law areas" and from Schroeder that she " is very good with clients." In the fiscal year ending that month, the plaintiff had amassed thirty-three more billable hours per month

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than the average associate.[12]

          [50 N.E.3d 788] Also in March, 2005, Starr, the human resources director, and Rosemary Allen, a firm member who oversaw the firm's personnel matters, received complaints from six women that Cohen had made inappropriate comments to them. After investigating, Starr and Allen concluded that no gender-based discrimination had taken place.

         On July 20, 2005, Eastern Point Consulting Group, Inc. (Eastern Point), a consulting company hired in the wake of the Gallina case to investigate allegations of discrimination, presented the findings from its investigation to the firm. Among other things, Eastern Point reported that many female attorneys, both members and associates, " believe it is more difficult for women than men at [the firm]." Starr was interviewed in the course of this investigation, and stated that there is a " tolerance for poor behavior" at the firm.

         In September, 2005, after returning from her honeymoon, the plaintiff informed Gault that she was pregnant with her first child. Gault responded, " Well, I suppose these things happen. I guess we have your honeymoon to blame for this?" [13] He then discussed the possibility of the plaintiff reducing her schedule to part time, although the plaintiff had not sought a reduction in hours or raised the possibility of such a reduction. Subsequently, the plaintiff experienced medical difficulties related to her pregnancy and was placed on short-term disability. Gault and Schroeder exchanged electronic mail messages in January, 2006, and March, 2006, in which each expressed that he was " frustrated" with the plaintiff's absences and lack of availability. Gault also spoke to the plaintiff's neighbors and discovered that she was performing work around her house that he did not believe was consistent with the medical conditions she reported.[14]

         In March, 2006, the plaintiff underwent her second annual performance review. Gault was one of her evaluators. She received over-all ratings of " usually exceeds expectations" in four competencies, " always meets expectations" in six other competencies, and a rating of " usually meets expectations" in the eleventh area, business development. In a written comment, Gault

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stated, " I noted some areas of substantive knowledge and writing in my last review that needed improvement," but that he " has seen what seems to be an improvement in her work since her last evaluation." His main criticism was that " I have not seen any evidence of production potential/entrepreneurial instincts." Another member wrote " that she spent excessive time on the work" he had assigned her and that her " drafting is not particularly precise." On the other hand, a firm member from outside ELB wrote positively that " the work [the plaintiff] did was for a very demanding client who set pretty unrealistic expectations, but [she] was able to meet them."

         In a separate evaluation dated May 1, 2006, Schroeder wrote, among other things, that the plaintiff's " writing needs to improve" and that she " did not always communicate [her reduced] schedule to everyone in ELB and I had to handle a number of matters on an emergency basis." [15]

          [50 N.E.3d 789] On May 3, 2006, the plaintiff gave birth to her first child. She began a planned six-month maternity leave. In June, 2006, defendant David Barmak replaced Gault as section manager of the ELB section. While the plaintiff was on leave, she was informed that, based on the performance reviews she had received in March, 2006, prior to her leave, she would be subject to another, interim performance review. This review would be based on her performance during the first ninety days after her return from leave.[16]

         The plaintiff returned to work on November 1, 2006. Thereafter, she registered a relatively low number of billable hours compared to other associates in the ELB section. By early February, 2007, the plaintiff had received two negative reviews of her work. One review criticized her for putting into a contract " poorly drafted language that needed to be redrafted in more conventional form." The other review, from Schroeder, noted, among other things, that she took " too much time to complete [a writing] task" he had assigned her and that " I had to perform more editing than I normally need to do for memos done by more junior associates." He also noted that " [d]espite a full-time schedule, she is coming

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in at 9[:]30 or so and leaving no later than 5[:]30 ... I cannot understand why she has not attempted to step up to the plate." The plaintiff also received positive comments from a client who " was very complimentary of [the plaintiff] and [her] work."

         In or around February, 2007, Allen, the member overseeing personnel matters, told Popeo, the firm chairman, that the senior attorneys in the ELB section had requested that the plaintiff " be separated from the firm." Popeo, in his deposition, recalled that he proposed demoting the plaintiff, or " set[ting] her back," rather than firing her. He stated, " I participated in the decision to step her back rather than terminate her. Indeed, I asked the Employment and Labor Section to consider an alternative to termination."

         On February 23, 2007, Barmak and a member of the human resources department met with the plaintiff to inform her that she would be " stepped back" two years in seniority, which would lower her salary, but also would allow more time before any decision would be made on her eligibility for membership. According to that human resources officer, this decision was based on the plaintiff's having received " mixed reviews, [on the fact that there are] partners who won't work with her, [on] low utilization, [and on a] high billing rate." Barmak later commented, regarding this decision, that the plaintiff

" is someone who is playing the system. She is out a lot, [and therefore] there is just a sense that she is not someone who is committed to practicing law, that she really doesn't want to be here, but as she often says, she is the 'breadwinner' ... [and] she doesn't want to move on because of the money."

         On February 26, 2007, the plaintiff retained an employment attorney in contemplation of filing a discrimination complaint against the firm. At around that time, she filed an internal complaint alleging that the step-back was the result of gender discrimination. An internal body known as the Rapid Workforce Response Team, which included Biagetti, investigated this [50 N.E.3d 790] claim. The investigators concluded that no discriminatory conduct had taken place.

         In April, 2007, the plaintiff's annual performance evaluation was completed. She received two evaluations, both strongly positive. One evaluator wrote that the plaintiff's " great work alone should help to drive more employment business to the firm."

         At some point before May, 2007, while the plaintiff was working on an assignment for a client using the DeskSite system,

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she came across an internal memorandum related to the Gallina case that discussed issues of gender discrimination at the firm. On approximately six occasions between May 8, 2007, and November 14, 2008, on instructions from her attorney, the plaintiff conducted targeted searches seeking other documents that might be related to her case or to other issues of gender discrimination. In the course of these searches, the plaintiff accessed and forwarded dozens of documents to her personal electronic mail address.[17] She shared two of those documents with her attorney.[18]

         In October, 2007, the plaintiff received three more evaluations, including one from Schroeder.[19] All were strongly positive, with comments ranging from an observation that " [h]er interactions with [a specific client] have led to significantly more employment work for us," to comments from Schroeder that " [s]he has shown some very positive signs in her development over the past year and I truly look forward to working with her." In a section for " areas for improvement," one evaluator wrote, " Nothing I can identify," a second wrote, " None that I am aware of," and Schroeder wrote, " I would like [the plaintiff] to get involved in bar association/trade association activities."

         Also in October, 2007, the firm solicited " upward feedback" from associates, in which they would provide anonymous comments evaluating members with whom they had worked. Cohen and Biagetti each received feedback stating that associates were concerned about their behavior towards women.

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          On December 11, 2007, the plaintiff filed a complaint with the MCAD alleging that her step-back was as a result of gender discrimination. She named the firm, Barmak, Gault, and Schroeder as respondents.

         In February, 2008, the plaintiff took a second maternity leave, returning to work on September 3, 2008.

          [50 N.E.3d 791] On November 13, 2008, the plaintiff conducted another search of the public section of DeskSite seeking documents related to gender discrimination at the firm. She found the transcript of voicemails left for Popeo over the period from February, 2005, through December, 2005, which she immediately copied and later forwarded in its entirety to her attorney.[20] The transcript had been prepared by Popeo's administrative assistant and, pursuant to his usual practice, saved to the public section of DeskSite. Among the messages was the one described above, in which firm member Kiser criticized the behavior of Gault during a meeting about gender discrimination. Many of the other messages were from Popeo's clients or potential clients and concerned sensitive matters protected by rules of attorney-client confidentiality and privilege.

         Also in November, 2008, in the wake of the national economic slowdown, the firm prepared to lay off employees. The plaintiff, among other associates, was selected for layoff. According to the firm, this was because of her low rate of billable hours, adjusted for the time that she had been on maternity leave. The plaintiff asserts that the low number of billable hours was the result of the " discriminatory and retaliatory conduct of" defendants who either did not assign work to her or discouraged others from doing so. On November 20, 2008, counsel for the firm contacted the plaintiff and offered to settle her discrimination case if she would accept the layoff. The plaintiff rejected this offer on November 21, 2008, and she was not then laid off. On the same day that the plaintiff rejected this offer, she visited the office of another firm member and showed the member a portion of the voicemail transcript containing messages left for Popeo. The member contacted Popeo. Thereafter, the firm's information technology department reviewed its records and learned that the plaintiff had conducted a number of searches of DeskSite that appeared to be related to her litigation against the firm. On November 25, 2008,

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after consulting with Allen and Starr, Popeo directed that the plaintiff's employment be terminated for cause. On December 5, 2008, Popeo filed a complaint with the Board of Bar Overseers (board), claiming that the plaintiff's searches of DeskSite in order to advance her litigation against the firm was a violation of her ethical duties as an attorney.[21]

         On September 2, 2009, the plaintiff filed a second complaint with the MCAD, alleging that the firm, in terminating her employment, had discriminated against her on the basis of her gender and that it had retaliated against her for having filed her first MCAD complaint. On November 3, 2009, the plaintiff brought the present action in the Superior Court, naming the firm, Gault, Barmak, and Schroeder as defendants. In January, 2010, she filed an amended complaint naming Popeo and Cohen as defendants. In February, 2010, the defendants filed an answer and counterclaims. In November, 2011, the defendants moved ...

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