Court: Worker sometimes has the right to search employer's databases for proof of discrimination

The Supreme Judicial Court ruled today that a lawyer fired from a downtown firm will get to make her case to a jury that she was terminated because of her gender. A lower-court judge had dismissed Kamee Verdrager's lawsuit against Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, but the state's highest court today reinstated the gender-discrimination parts of the case.

In its ruling, the court broke new ground for Massachusetts, saying that in certain proscribed circumstances,a worker cannot be fired for accessing company records - as was done to Verdrager - because that is "protected activity" under the state's anti-discrimination laws.

Verdrager searched Mintz, Levin's document system after she had filed a gender-discrimination case with the state and after the firm had demoted her. She turned over some of the documents she found to the outside lawyer she had hired to press her case.

The court said that since she had already filed a gender-discrimination complaint with the state, what she did was "protected activity" rather than the violation of her "ethical duties" the firm said she was guilty of in a complaint to the state Board of Bar Overseers.

The justices noted that after her "self-help discovery," she only turned the documents over to her own lawyer, not to other firm employees. And it dismissed the lawfirm's client/attorney privilege argument, ruling that even lawyers have the same rights at employees at other sorts of companies and that strict enforcement of client/attorney privilege in such cases would strip them of their rights under state law.

The ruling also documented some of the issues at the law firm - which came around the same time a female attorney in the firm's Virginia office was winning an anti-discrimination lawsuit against it:

For instance, defendant Schroeder's May, 2006, evaluations criticized the plaintiff for not being available for certain emergency assignments, and his March, 2006, electronic mail message noted that "[t]his is not a job where you can come and go as you please." Yet, the plaintiff maintains in an affidavit there were "many occasions when [she] would be looking for Mr. Schroeder during business hours and would learn that he and [a particular junior male associate] were at the gym." Similarly, when the plaintiff was nursing her first child, Schroeder evaluated her negatively for "leaving [the office] no later than 5[:]30," even as Schroeder "was sending [the aforementioned male associate] home" earlier than the plaintiff because he had "a wife and kid at home."

Second, there is evidence that Cohen attempted to undermine the plaintiff after she complained about his behavior, which may allow an inference that the plaintiff's perceived performance deficiencies resulted in part from Cohen's animus rather than from innate inadequacy. While Cohen initially complimented the plaintiff's work, this changed following her August, 2004, complaints, when she was told by various individuals that Cohen was "bad-mouthing" her. In October, 2004, Cohen asked a client to submit a written complaint against the plaintiff, which he then forwarded to Gault, the ELB section manager, and Starr, the human resources director. Cohen stated in his deposition that he had never previously solicited a written complaint against an associate. In January, 2005, Cohen gave the plaintiff a lengthy assignment that did not count toward her quota of billable hours, which the plaintiff maintained in her deposition was more extensive than parallel assignments given to other associates. In the wake of these incidents, a number of firm members, including Gault, told human resources staff during a meeting in February, 2005, that the plaintiff and Cohen could not work together and that Starr should seek to hire an attorney with qualifications similar to the plaintiff's.

downtown law firm discriminated against a female lawyer - and that she did nothing wrong by scanning its document database for proof.