Final Score: HIPAA 1 – Retaliation 0

See how a federal appellate court shut out a plaintiff’s claims of retaliation after she was fired for forwarding confidential documents to herself, purportedly to preserve evidence for an age-discrimination lawsuit filed by a former coworker.

What I did there, you see that?

After the jump…

* * *

In New Jersey, where jughandles and diners rule with an iron fist, they have a wacky rule where employees may be able to swipe an employer’s confidential business records and subsequently use them to support a claim of discrimination. (More on that here).

Last month, the Sixth Circuit Court of Appeals decided not to drink that Kool-Aid.

In Aldrich v. Rural Health Services Consortium, Inc., the plaintiff was terminated after she refused her company’s demand that she delete emails containing patient information that she had sent from her work email to her personal email.

Cutting head of a paper shredderOk, you’re thinking to yourself, “God, I can’t get over how good Meyer’s fantasy football team is Why would someone who was purportedly fired for violating HIPAA be suing her former employer?”

Good question. Crazy back story. Testify Sixth Circuit! Testify:

Aldrich began work at Rural Health in 2002. She worked with the company’s CFO, Benny Brewster, and the CEO, Linda Buck. Brewster was fired in 2011 and sued the company, claiming age discrimination. Shortly thereafter, Buck sent Aldrich an email that said “[d]elete this as soon as you read, and don’t copy anyone. We are going to have to be careful because this may be read by Benny’s lawyers.” Two months later, Buck sent her another email, instructing her to “[d]estroy these emails because Benny’s attorney will be going through our emails.” A few weeks later, Buck sent Aldrich and other employees an email that said “[p]lease go through your emails and any reference of scenes, cameras and comments about them, delete. And then delete this email all the way to delete the delete box. LOL.”

Around this time, Aldrich became concerned about her job security at Rural Health because of an ongoing disagreement with Buck about a consultant’s report. She also believed that Buck was destroying evidence relevant to Brewster’s lawsuit. In April 2012, Aldrich began forwarding emails from her company account to her personal Yahoo account. She forwarded all emails between Buck and herself, without knowing what was in them. Many of the emails contained patient information.

So, when Ms. Aldich was fired, she sued for retaliation. 

No protected activity; no retaliation.

To prevail on a retaliation claim, at a minimum, a plaintiff must demonstrate that she engaged in a “protected activity.” In other words, did she oppose a practice made unlawful under the ADEA (opposition clause) or participate in any manner in an investigation, proceeding, or litigation under the ADEA (participation clause)?

On the facts here, the Sixth Circuit agreed with the lower court that Meyer’s fantasy football team rules! there was no participation:

Here, Aldrich was not directly involved in any litigation, or responding to any request from Brewster’s attorneys, when she forwarded emails to her personal account. Had she been fired for disclosing emails in response to a subpoena, or for her deposition testimony in the Brewster litigation, then her conduct would have been protected by the participation clause. Aldrich does not contend that she was fired for any direct participation, however, and therefore the participation clause does not apply.

Or opposition either:

Here, Aldrich indiscriminately sent confidential records from Rural Health’s secured servers to her personal Yahoo account–putting at risk, if not outright invading, the privacy of the company’s patients. The content of the emails was highly sensitive, and many of them were unrelated to Brewster’s ADEA lawsuit….Aldrich’s use of emails containing confidential patient information was patently unreasonable.

Silver lining?

Failed lawsuit aside, I’m gonna say that Aldich’s termination was a blessing in disguise. Having to endure your boss allegedly asking you to destroy litigation materials to cover her ass doesn’t sound like my idea of a great workplace.