Reverse Litigation Lawsuits and Employment Discrimination Law: Impermissible Retaliation Against Employees

At least thirteen states have enacted statutes that allow the defendant in a SLAPP lawsuit to file a counterclaim or an expedited motion to dismiss, or to institute a separate proceeding against the plaintiff (the so-called “SLAPP-back lawsuit”) on the grounds that the SLAPP lawsuit constitutes illegal retaliation for having engaged in protected conduct. [FOOTNOTE 6]The 9th U.S. Circuit Court of Appeals recently held that a claim under a state SLAPP statute can be brought in federal court, as otherwise the SLAPPer would have an incentive to forum shop for a federal forum, to the disfavor of those intended to be protected by the statute. [FOOTNOTE 7]

Some courts have recognized that reporting workplace discrimination or harassment to the appropriate authorities constitutes protected conduct under a state SLAPP statute, although holding a press conference in which the alleged misconduct is publicly presented may not constitute such protected conduct. [FOOTNOTE 8]

However, an employee who alleges that her employer has filed a SLAPP suit is not limited to a cause of action under a state SLAPP statute, since the federal and state anti-discrimination laws typically prohibit retaliatory conduct against employees for having engaged in protected conduct, including the reporting of employment discrimination. [FOOTNOTE 9]

THE MICROSTRATEGYSLAPP LAWSUIT

An excellent example of a SLAPP lawsuit filed by an employer against an employee for having complained of discrimination is the ongoing litigation between MicroStrategy, an Internet start-up company in Virginia, and one of its employees, Betty Lauricia, the former Vice President for Corporate Development Operations at MicroStrategy. Lauricia filed a charge of discrimination with the EEOC in early 2000, in which she alleged that similarly-situated male vice presidents were granted vastly greater stock options.

The day after MicroStrategy received this EEOC charge, MicroStrategy placed Lauricia on paid administrative leave; three days later, MicroStrategy filed a lawsuit in federal court against both Lauricia and her attorney (Claude D. Convisser), alleging that information about its employee compensation, including stock options, constituted trade secrets as well as privileged attorney-client information. MicroStrategy also alleged that the use of this information by Lauricia and her attorney (through her EEOC charge and, presumably, any future litigation) constituted theft of trade secrets and misuse of confidential attorney-client information, [FOOTNOTE 10]and that Lauricia had breached her fiduciary duty to her employer by using this information. [FOOTNOTE 11]The company then requested a declaratory judgment that MicroStrategy had not violated the anti-retaliation provisions of the Fair Labor Standards Act in its proposed termination of Lauricia. [FOOTNOTE 12]

Needless to say, MicroStrategy’s lawsuit was filed well before the EEOC had completed its investigation of Lauricia’s charge, let alone before she could file a lawsuit in federal court. On May 2, 2000, the federal district court readily dismissed MicroStrategy’s lawsuit on the grounds that judicial intervention at this stage was entirely unwarranted:

There is good reason why federal courts have not accepted jurisdiction in employment disputes under the Declaratory Judgment Act as plaintiff would have us do. In effect, MicroStrategy is asking this court to place an imprimatur upon a proposed employment action. If we were to accept this role, a federal court would become a super-personnel advisor to wary employers. Moreover, by exercising jurisdiction over this complaint we would encourage pre-emptive strikes by employers against dissatisfied employees, potentially undercutting Congress’s very clear direction that such disputes be addressed through the administrative process. To take a step in this direction would be a step towards the involvement of federal courts in the workplace of unprecedented magnitude. We decline to impose such a role on the federal judiciary. [FOOTNOTE 13]

MicroStrategy then filed an unsuccessful emergency appeal with the 4th U.S. Circuit Court of Appeal. Undeterred, it promptly filed a parallel lawsuit in state court, requesting that the court issue a Writ of Possession requiring the local sheriff(s) “to seize any and all documents belonging to MicroStrategy and in possession of [Lauricia and Convisser]” and that an injunction be issued to prevent the defendants and all others (presumably including the EEOC) from making any further use of MicroStrategy’s documents. [FOOTNOTE 14]Surprisingly, the state court granted MicroStrategy’s request for this writ and imposed a gag order upon the parties. [FOOTNOTE 15]

On May 11, 2000, the EEOC issued its probable cause determination, finding that MicroStrategy had illegally retaliated against Lauricia for having filed her charge of discrimination. The EEOC summarized the evidence and concluded that:

Based on the evidence, it is reasonable to conclude that Respondent [MicroStrategy] took adverse employment action against Charging Party [Lauricia] as a result of her participation in federally protected activity . . . . It is also reasonable to conclude that Respondent filed suit against Charging Party in retaliation for Charging Party’s participation in federally protected activity in an attempt to produce a chilling effect to deter future allegations of employment discrimination. [FOOTNOTE 16]