The New Jersey Appellate Division recently upheld a criminal indictment against a woman who took documents from the Board of Education that employed her, finding that there was probable cause to support the grand jury’s indictment.
According to the Appellate Division’s opinion, Ivonne Saavedra worked as a tenured clerk for the North Bergen Board of Education. She was assigned to a child study team within the Board’s Special Services Department. In November 2009, Saavedra and her son, who worked part-time for the Board, filed a complaint against the Board and certain other individuals. In the complaint, they alleged that Saavedra experienced gender, ethnic, and sex discrimination and that the Board terminated her son in retaliation for various complaints she raised about the Board’s pay practices, “unsafe conditions,” and violations of child study team regulations.
In the course of pursuing the discrimination lawsuit against the Board, Saavedra turned over a number of documents which belonged to the Board. According to the Board’s general counsel, Saavedra produced approximately 367 documents, including at least sixty-nine original documents. Upon learning of the documents, the Board’s general counsel contacted the county prosecutor, who presented the matter to a grand jury.
The Board’s general counsel testified before the grand jury about the contents of five of the document, which he described as containing “highly confidential, very sensitive” information. The documents included:
(1) a bank statement, showing account numbers and balances and the parent’s name and address, which had been provided to the Board to prove residency;
(2) an appointment schedule of a psychiatrist who treated special needs students in the district;
(3) a Medicaid reimbursement form provided to the district, which contained a student’s name, birth date, and other private contact information;
(4) an original, signed letter from a parent whose child received confidential special needs services in the district; and
(5) another original, signed letter from a different parent, describing a sensitive emotional problem involving that parent’s child in which the child “came off the bus soaked in urine.”
In response to the general counsel’s testimony, the grand jury indicted Saavedra on charges of official misconduct and theft. Saavedra moved to dismiss the indictment, arguing that a New Jersey Supreme Court decision, Quinlan v. Curtiss-Wright Corp., allowed her to take the documents to use in her employment discrimination case. The trial court denied Saavedra’s motion, finding that the Quinlan decision did not make it lawful for employees to take documents from their employers in all circumstances. Saavedra appealed.
The Appellate Division considered the two competing but significant public policy interests at issue. For the Board, the concern focused on its ability to protect the confidential information that parents and students entrust to it. Allowing an individual to freely disclose this confidential information could, at a minimum, impair the Board’s ability to collect similar information in the future if parents and students could not trust that the information will be maintained in confidence.
On the other hand, Saavedra argued that criminal charges against her could have a chilling effect on other potential whistleblowers, who could only prove their claims by taking documents in a similar manner.
In Quinlan, the New Jersey Supreme Court set forth a seven-fact analysis to balance the rights of individual plaintiffs in employment lawsuits “seeking to vindicate their rights [against] employers legitimately expecting that they will not be required to tolerate acts amounting to self-help or thievery.” The test set forth in Quinlan, however, was used to determine whether or not Quinlan’s employer could lawfully terminate her for taking the documents. It did not, the Appellate Division noted, shield all employees who would take their employers’ documents to support discrimination lawsuits. The Appellate Division noted that the Supreme Court, in Quinlan, specifically warned individuals like Saavedra that their conduct could be considered “illegal” in certain circumstances.
In the end, the Appellate Division upheld the indictment against Saavedra but noted that employers should not assume that any employee who takes company documents to support a discrimination lawsuit will be subject to criminal sanctions. Given the sensitive nature of the documents at issue in this matter and the fact that Saavedra was a public – rather than private – employee, the indictment against her may turn out to be the exception rather than the norm for situations like hers. Nevertheless, the Appellate Division’s decision should serve as an important warning to employees who may consider surreptitiously taking documents to support claims against their employers.