Court Upholds Termination after Privacy Violation During Discrimination Litigation

July 11, 2008 ( - The 6th U.S. Circuit Court of Appeals has upheld the termination of a Cincinnati Insurance Company (CIC) employee who shared confidential work documents with her attorneys as part of a retaliation lawsuit.

The court determined that the confidential documents were not related to the retaliation lawsuit. Kathy Niswander admitted that they were not proof of retaliation, but were intended to trigger her memory of specific instances of retaliation. The court said this admission was fatal to her claim that her termination for disclosing the documents was retaliation.

In 2000, Niswander joined a class action lawsuit that claimed the insurance company discrimination against women employees. She alleged that after she joined the suit, her supervisor began retaliating against her and the company took no action when she complained of the retaliatory acts.

At the request of the discrimination suit attorneys, Niswander delivered numerous documents, some of which were copies of e-mails from her supervisors related to her job performance, but some were claim-file documents that included confidential personal information of insured individuals. She said the claim-file documents were delivered in order to help trigger Niswander’s memory of instances of alleged retaliation.

CIC received the documents that Niswander provided to the lawyers, and decided her conduct in delivering the documents violated CIC’s Privacy Policy, its Code of Conduct, and its Conflict of Interest Policy, all of which expressly prohibit the disclosure of confidential information, including personal information about policyholders. The company terminated her in December 2005.

Niswander then filed a wrongful termination lawsuit claiming the company retaliated against her for activities that were protected under Title VII of the Civil Rights Act. A district court sided with CIC, and the appellate court affirmed its decision.

The opinion in Niswander v. The Cincinnati Insurance Company is here .