The Tenth Circuit recently reaffirmed that employers may lawfully enforce a policy against surreptitious recordings.

In Spagnolia v. Charter Communications, LLC, the United States Court of Appeals for the Tenth Circuit unanimously affirmed a District of Colorado order granting employer Charter Communications, LLC’s (“Defendant”) summary judgment on claims filed by plaintiff Heather Spagnolia (“Spagnolia”), who asserted that she was fired in retaliation for making reasonable requests for lactation accommodations.

The issue before the appellate court was whether Defendant’s proffered reason for terminating Spagnolia (secretly recording meetings with her supervisors in violation of company policy) was pretextual. 

Both courts agreed that Spagnolia’s violation of the policy against surreptitious recordings was a lawful basis for termination, and that Spagnolia failed to show that this was pretextual.

Background

In 2017, Spagnolia moved to Colorado to work for Defendant as a Regional Operations Center Specialist. From April to July 2019, Spagnolia took leave under the federal Family and Medical Leave Act to give birth to her second child. When she returned to work in July 2019, Spagnolia’s supervisor mistakenly permitted her to take paid lactation breaks, even though Defendant’s written policy provided for unpaid lactation breaks. During that time, Spagnolia’s lactation breaks lasted for an average of two hours per day, and sometimes up to three hours—in addition to her lunch break and regular paid breaks.

Defendant became aware that Spagnolia’s supervisor was mistakenly paying for these breaks, and on August 22, 2019, Defendant notified Spagnolia that she would have to “clock out” before taking a lactation break, consistent with the written policy. Spagnolia met with her supervisor to discuss this change in practice, and she secretly recorded the meeting. Defendant discovered she had done so, and terminated her on August 29, 2019, for violating internal policies prohibiting surreptitious recordings of meetings.

Spagnolia’s suit followed, and Defendant moved for summary judgment on her claims of: (1) pregnancy discrimination, (2) gender discrimination, (3) failure to accommodate, (4) retaliation, and (5) termination in violation of public policy. The first four claims were brought pursuant to the Colorado Anti-Discrimination Act (“CADA”).

The District Court’s Decision

In analyzing Defendant’s motion, the district court examined whether CADA prohibits an employer from firing an employee who secretly records meetings due to a good faith belief that the employer is engaging in unlawful conduct. Defendant argued that a surreptitious recording is not protected activity. Citing Second Circuit case Heller v. Champion Intern, Spagnolia argued that a surreptitious recording is protected activity when it is not prohibited by any policy, is permitted by law, the plaintiff does not reasonably believe that it is impermissible or otherwise against company policy, and the defendant has established a policy that its employees have no expectation of privacy in the workplace.

The court rejected Spagnolia’s reliance on Heller, finding that “the cases overwhelmingly support Defendant’s argument that a surreptitious recording is not protected activity . . . and the Court declines to rely on the Second Circuit’s dicta to find to the contrary.” The court further noted that Spagnolia made no effort to show why she needed to violate the recording policy to oppose Defendant’s alleged unlawful acts, and pointed out that she could have taken notes or simply asked for permission to record the conversation.

The court ultimately concluded that Spagnolia’s surreptitious recording did not constitute protected activity[1] and granted summary judgment to Defendant on all five claims. In laymen’s terms, the court decided that the employer did not violate the law when it decided to terminate Spagnolia’s employment for violating the no-recording policy.

The Tenth Circuit Affirms the Decision

Spagnolia appealed the decision with respect to her retaliation claim, but to no avail: a three-judge panel for the Tenth Circuit agreed unanimously with the original decision, finding that “no reasonable juror could conclude, based on the record at summary judgment, that Defendant fired Ms. Spagnolia in retaliation for her accommodation request. Defendant offered a legitimate and non-discriminatory reason for firing Ms. Spagnolia—her violation of Defendant’s policy against surreptitious recordings—and Ms. Spagnolia failed to show that this was pretext.” Accordingly, the Tenth Circuit affirmed the district court’s order granting summary judgment to Defendant.

What is “Pretext” Anyway? Discrimination Law 101

The court’s finding that Defendant’s stated reason for dismissing Spagnolia was not pretextual was a fatal blow to the plaintiff’s claim that her employer had retaliated against her because of her requests related to lactation accommodation. For more than 50 years, following the Supreme Court’s landmark Title VII decision in McDonnell Douglas Corp. v. Green, courts have relied heavily (although not exclusively) on a process known as “burden shifting” for employment discrimination cases. The initial burden falls on a plaintiff to lay out facts that support all the elements of a discrimination or retaliation claim, and then shifts to the defendant, allowing an employer to proffer a legitimate reason for the allegedly unlawful action(s) that give rise to a lawsuit. The burden then shifts back to the plaintiff, who must show that the employer’s explanation is actually a cover – pretext – for the real reason behind an adverse action.

In this case, none of Spagnolia’s theories succeeded in persuading the courts that the employer fired her over her concerns about lactation accommodation, because she could not produce evidence to support them. To the contrary, the employer produced evidence that Spagnolia had previously been counseled about the prohibition on surreptitious recordings both individually and in multiple sessions with the entire team, and that at least four other employees had the same policy enforced against them.

Employer Takeaways

This decision illustrates that not all employee opposition to an employer’s actions constitutes protected activity. It also serves as a reminder of the importance of well-drafted workplace policies and consistent enforcement.

If, as in this case, an employer has a clearly communicated policy prohibiting surreptitious recordings, an employee’s subsequent use of such recordings—even to combat being ignored or retaliated against—might constitute valid grounds for discipline, depending on the law in that jurisdiction. Moreover, when a potential need for disciplinary action starts to appear, it is crucial for an employer to document everything. In this case, for example, the ability to produce evidence of the employee’s prior counseling about the prohibition on surreptitious recordings proved crucial to the employer’s ability to successfully defend itself in court.

Employers should:

• Review their workplace policies to ensure that they comply with current applicable law.
• Communicate policies upon hiring and on a regular basis to put employees on notice of unacceptable conduct.
• Examine how workplace policies are distributed, and whether employees have acknowledged receipt of such policies.
• Ensure that workplace policies are consistently applied.
• Consider using progressive discipline when evaluating how to respond to policy violations and document such activity scrupulously.
• Consult with counsel if faced with an incident that may or may not constitute protected activity.

ENDNOTES:

[1] While the court here found that Spagnolia’s surreptitious recordings did not constitute protected activity, it’s worth noting that the National Labors Relations Board (“NLRB”) found in Starbucks Corporation d/b/a Starbucks Coffee Company and Philadelphia Baristas United and Echo Nowakowska and Tristan J. Bussiere, 372 NLRB No. 102 (2023), that some recordings made in the workplace are protected under Section 7 of the National Labor Relations Act (“NLRA”), even if they are made in secret, so long as the recording is made to protect employees’ rights under the NLRA.