Being discriminated against in the work place does not give the employee the right to secretly audiotape her co-worker in order to get evidence of the discriminatory misconduct. On February 19, 2013, the United States Court of Appeals for the Second Circuit in the case of Jewanta Desardouin v. City of Rochester, Vincent McIntyre addressed the issue of when an employee is both discriminated against for gender and has also done her own illegal secret recording of her co-workers. While both Massachusetts and New Hampshire are within the jurisdiction of the United States Court of Appeals for the First Circuit, the reasoning in this Order is likely to be similar to those in our courts. Therefore, both Massachusetts and New Hampshire employers and employees alike should understand this decision.
In this case, Desardouin had summary judgment rendered against her both on her claims of a hostile work environment based on gender and retaliation. The Appellate Court in its decision of last month ruled that her retaliation claim had to be dismissed, but her hostile work environment claim could continue to trial. In that order, the Court considered the ruling on the dismissal through a summary judgment proceeding of the facts as alleged by her to determine if there was a material factual dispute to be decided through live testimony and other evidence at trial.
Based upon Desardouin’s allegations, the Court noted that she began her employment with the City of Rochester, New York as a supervisory security officer in February 1988. She was the only female supervisor in the Security Operation Department in the Rochester Police Department and she reported to McIntyre; her supervisor. Desardouin alleged that beginning in May 2007 McIntyre made sexual advances to her and one of her co-plaintiffs, Theresa Smith. On a weekly basis McIntyre told Desardouin that her husband was “not taking care of [her] in bed.” She reported the alleged harassing conduct that occurred from May 2007 until June or July. In October or November 2008, she submitted to the Police Department’s Professional Standards Section a recording of McIntyre and another security supervisor allegedly discussing tampering with her computer and changing her schedule. Desardouin admitted that she engaged in an unauthorized recording of employees and that she initially lied about doing so and was discharged in February 2009. The Appellate Court thereafter had no problem finding that she had made a case for hostile work environment based upon her gender noting that for a male to say to a female employee under his supervision that her husband was not taking care of her in bed is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can be just as readily be found to be perceived as such by a female employee. The weekly repetition of such a remark over several weeks only served to reinforce its offensive meaning and to make sexual intimidation, ridicule, and insult a persuasive part of Desardouin’s work place effectively changing the terms of her employment. Therefore she had a hostile work environment claim that could continue on to trial, however, that did not give her a free ticket to commit the crime of recording her co-employees’ conversations without their knowledge. It is, likewise, illegal to secretly audio tape individuals’ conversations in New Hampshire and Massachusetts.
Therefore, if an employee is attempting to illicit evidence of discrimination to prove her case and audiotaped fellow co-workers or others without their knowledge that would be a crime. If she was fired for that crime rather than as a pretext for her raising the discrimination claim, she would have no retaliation claim. It would be extremely imprudent for any employee to believe that she would enhance the evidence of her case by committing the crime of secretly recordings others’ conversations. For an employer, this decision also shows that the courts do not allow victims of discrimination to break the rules; but it prevents employers from using that breaking of the rules as a mere pretext to fire the employee when the real reason for the firing is because they made a discrimination claim. Obviously an employer faced with these issues should speak with its employment attorney to properly navigate through these issues.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].