The Superior Court of New Jersey, Appellate Division, has held that a public sector employee can be criminally indicted for stealing employer documents to support her claims under the New Jersey Conscientious Employee Protection Act (CEPA) and New Jersey Law Against Discrimination (LAD). In State of New Jersey v. Saavedra, the Appellate Division found, in a 2-1 decision, that a criminal judge is not required to perform a Quinlan analysis when deciding a motion to dismiss an indictment charging the employee with second-degree official misconduct and third-degree theft of public documents. Instead, the State merely must introduce evidence to support a prima facie case that the defendant committed the crime. In dissent, Judge Simonelli disagreed with the majority, concluding that the doctrine of fundamental fairness should be expanded to preclude criminal prosecution of employees for theft or official misconduct for taking confidential employer documents while engaged in protected activity pursuant to the whistleblower and anti-discrimination laws.
The defendant in the criminal case, Ivonne Saavedra, was employed by the North Bergen Board of Education (the “Board”) as a clerk. In November 2009, Saavedra filed a complaint against the Board alleging gender, ethnic, and sex discrimination. Her son, a fellow employee, joined the action alleging that he was terminated because Saavedra raised workplace concerns. During the course of discovery in the civil lawsuit, the Board’s learned that Saavedra took hundreds of documents owned by the State, some of which were originals. The Board then brought the matter to the Hudson County Prosecutor who presented the case to the grand jury.
The grand jury was presented with five documents that focused on the confidential nature of what Saavedra stole. Among theses documents were bank statements, names of students with mental health issues, and a signed letter from a parent whose child is receiving confidential services for the child’s special needs. In May 2012, the grand jury indicted Saavedra and charged her with committing the crimes of official misconduct and theft.
Trial Court Decision
The defendant filed a motion in the Superior Court of New Jersey to dismiss the indictment. Therein she argued that she took the documents for a lawful use, that the State failed to present exculpatory evidence to the grand jury, and that the State was punishing her for exercising improper judgment on the job. Further, defendant argued that Quinlan v. Curtiss-Wright Corp. allows employees to take confidential information to support a LAD claim. In Quinlan, the New Jersey Supreme Court set forth the factors a court should considered in determining whether an employer can properly discipline an employee who takes company documents to support an LAD claim. Our previous post regarding this aspect of the Quinlan case can be found here.
The court denied defendant’s motion and held that on a motion to dismiss the indictment, the State’s evidence must only establish a prima facie showing that the defendant committed a crime. Further, although the court found Quinlan inapplicable in the criminal context, the judge, being cautious, performed a Quinlan analysis and concluded that the factors weighed heavily in favor of the Board. Lastly, the judge held that “an employee’s removal of documents from his or her employer for use in a [ ] LAD suit, is not per se lawful.”
Appellate Division − Majority Opinion
In affirming the trial court, the Appellate Division held that, in a criminal case, a judge need not perform a Quinlan analysis. The court distinguished the instant case from Quinlan which involved a private individual stealing confidential documents from her private employer. In Saavedra, the court stated that, “Quinlan does not apply directly to the facts presented here because the Supreme Court did not intend its holdings in that civil case to act as a means of mounting a facial challenge to the indictment in this criminal matter.”
Moreover, the court found that the trial court judge did not abuse her discretion in denying the motion to dismiss the indictment. The court agreed with the trial judge that in a criminal case the State is only required to introduce evidence sufficient to establish a prima facie case in front of the grand jury, which the State did here.
Next, the court held that defendant’s argument that she committed an “honest error,” or exercised improper judgment on the job, is essentially a claim of right defense that should be raised as an affirmative defense; not in a motion to dismiss the indictment. The court also disagreed with defendant’s argument that the prosecutor failed to introduce exculpatory evidence to the grand jury.
Lastly, the court addressed the defendant’s argument that allowing the State to criminalize her acts would have a chilling effect on potential LAD claims. The court refused to hold that it was against the LAD public policy to criminally prosecute employees for taking confidential employer public documents. The court opined that plaintiffs in a discrimination case have a variety of means to obtain evidence similar to the documents at issue herein without resort to theft or criminal misconduct. Ultimately, the court found that this determination is left to the sound discretion of the Legislature.
Appellate Division − Dissent
In dissent, Judge Simonelli concluded that the indictment should be dismissed with prejudice. According to the judge, it is fundamentally unfair to criminally prosecute an employee for taking employer documents while engaged in protected activity pursuant to the LAD or CEPA because the law does not give fair warning to ordinary citizens that their conduct is illegal. After discussing the policy behind the LAD and CEPA, as well as the criminal statutes at issue, the judge stated that even Quinlan does not warn employees that their self-help activities can result in criminal prosecution and imprisonment. Judge Simonelli opined that, until the Legislature weighs in, the doctrine of fundamental fairness should be expanded to prohibit criminal prosecution in this case.
Based upon the aforementioned split in the Appellate Division there is a high likelihood that the case will go to the New Jersey Supreme Court.
The Gibbons Employment & Labor Law Department regularly handles the defense of retaliation and discrimination claims in both state and federal courts.