                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1162n.06

                                           No. 11-4211                                  FILED
                                                                                    Nov 08, 2012
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


CHYRIANNE H. JONES,                                      )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE
v.                                                       )        SOUTHERN DISTRICT OF
                                                         )        OHIO
ST. JUDE MEDICAL S.C., INC., c/o CT                      )
Corporation System; MICHAEL MOORE,                       )                          OPINION
                                                         )
       Defendants-Appellees.                             )
                                                         )




BEFORE: MERRITT, McKEAGUE, STRANCH, Circuit Judges.

       McKeague, Circuit Judge. Plaintiff-appellant, Chyrianne H. Jones, appeals the district

court’s grant of summary judgment in favor of the defendants, St. Jude Medical S.C., Inc., and

Michael Moore. Jones contends that the defendants unlawfully retaliated against her for her

engagement in protected activities, in violation of Title VII of the Civil Rights Act of 1964, as

amended 42 U.S.C. § 2000e-3(a), 42 U.S.C. § 1981, and Ohio Revised Code Chapter 4112. The

district court granted summary judgment in favor of the defendants on the retaliation claims finding

that Jones failed to make a prima facie case. Additionally, the court found that the defendants were

entitled to summary judgment even if Jones had made a prima facie case because Jones failed to

rebut the defendants’ proffered nonpretextual bases for her termination. We affirm the judgment of
No. 11-4211
Jones v. St. Jude Medical, S.C.

the district court and hold that Jones failed to rebut one of St. Jude’s proffered nonpretextual reasons

for her termination.

                                          BACKGROUND

        St. Jude is a Minnesota corporation that sells medical devices to hospitals and physicians.

St. Jude’s medical products include cardiac rhythm management devices such as pacemakers (low-

voltage devices) and defibrillators (high-voltage devices).         St. Jude directly employs sales

representatives throughout the United States to sell these items to hospitals and physicians.

However, prior to February 2007, St. Jude contracted with an independent entity, Ohio Pacesetter

Association, to sell St. Jude products in the Columbus, Ohio, region.

        Jones is an African-American female who worked for medical-device providers from March

2003 to December 2009. From March 2003 to July 2005, Jones worked for a St. Jude competitor,

Medtronic, as a device-check specialist. In July 2005, St. Jude hired Jones as a cardiac-rhythm-

management sales representative in St. Jude’s Jacksonville, Florida, office.             While in the

Jacksonville office, Jones serviced one doctor and earned more than $300,000 a year servicing this

account. Her performance in the account exceeded St. Jude’s expectations.

        In 2006, Jones spoke with Lou Major, who was the new St. Jude Regional Sales Manager for

the Columbus region. Major mentioned that St. Jude was planning to implement a direct sales force

in the Columbus region by buying out Pacesetter. Jones subsequently applied for a position as a

sales representative in the Columbus office.




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Jones v. St. Jude Medical, S.C.

       In 2007, Jones was offered a position in Columbus, which she accepted despite being offered

a low guarantee.1 She began work on July 9, 2007. She was assigned a primary territory consisting

of four electrophysiologists at Riverside Methodist Hospital, a number of smaller low-voltage

accounts, and an additional electrophysiologist, Dr. Noble. Riverside, The Ohio State University,

and Mount Carmel Health System are the flagship accounts of St. Jude’s Columbus office. Three

sales representatives shared Ohio State, while Jones and another sales representative shared

Riverside. Electrophysiologist accounts are the most desirable accounts for cardiac-rhythm-

management sales representatives because only electrophysiologists can install high-voltage devices,

which generate higher commissions.

       On January 14, 2008, Fred Suppes, Major’s replacement as regional sales manager, notified

Jones via email that Riverside would be removed from her accounts effective January 28. The email

also stated that she would be contacted in 2-3 weeks about the plan moving forward. Michael

Moore, who was the area vice president of sales, and Suppes both stated in depositions that the other

was responsible for the decision to remove the Riverside account from Jones. On January 28, 2008,

Jones lost 80% of her high-voltage device implanters as a result of her removal. St. Jude never

replaced the accounts.




       1
         “A guarantee is a regular rate of pay paid to a sales representative to provide him or her a
guaranteed income during a set period while the sales representative is either establishing
relationships in the sales territory or serving a non-competition period.” (R. 86, Dist. Ct. Op. &
Order at 3, Page ID # 2140.)

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Jones v. St. Jude Medical, S.C.

        A. Performance Improvement Plan & Termination

        According to Jones, she began opposing what she believed to be unlawful employment

practices in an email dated January 15, 2008 and continued, from that date forward, to oppose these

allegedly unlawful employment practices through emails sent to various St. Jude employees and

ultimately through the present litigation. She also states that throughout the period of her

employment in St. Jude’s Columbus office she was given less favorable treatment than her male

colleagues, and particularly, her white male colleagues. She states that because she opposed St.

Jude’s unlawful employment practices, St. Jude began taking actions that ultimately resulted in her

placement on a performance improvement plan in August 2009 and her termination in December

2009. These actions included St. Jude removing Jones from the Riverside account in January 2008;

St. Jude failing to give her new accounts to replace her old ones in January and February 2008, while

giving her male colleagues replacement accounts after their primary accounts were removed; St. Jude

making up reasons in January and February 2008 for her removal from the Riverside account; St.

Jude not giving her adequate technical-sales-specialist2 support throughout the latter months of 2008

and early months of 2009; St. Jude removing Dr. Noble from her accounts in June 2009; St. Jude

doctoring sales numbers to justify her removal from the Riverside account and to downgrade her

2008 performance appraisal in April 2009; St. Jude placing her on performance improvement plan

because of her low performance appraisal, in August 2009; and St. Jude arbitrarily setting the

performance improvement plan’s sales quota so that she was set up to fail.


        2
        A technical sales specialist assists sales representatives in servicing accounts and clinics, and
providing follow ups.

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Jones v. St. Jude Medical, S.C.

       Jones failed to meet the sales quota set forth in her performance improvement plan, and in

December 2009, Moore recommended Jones be terminated for that reason. On December 17, 2009,

Jones was terminated based on Moore’s recommendation. According to Jones, St. Jude’s actions

establish a chain of events that begin with her engaging in protected activities and end with her

termination. For purposes of this opinion, we assume that Jones could prove a prima facie case that

St. Jude terminated her because she engaged in protected activities.

       B. Recordings & Termination

       After being removed from the Riverside account in January 2008, Jones recorded

conversations with Heather Connelly (the electrophysiology manager at Riverside), several doctors,

and employees of St. Jude. None of these people knew that the conversations were being recorded.

Jones made the recordings to document what she believed to be mischaracterizations and lies made

by Moore and Suppes, and to create evidence for a possible lawsuit. Recording conversations

without the other conversant’s approval violated St. Jude policy. At some point, Jones discovered

that making these recordings violated company policy; yet she continued to record conversations

thereafter. Jones informed St. Jude of the recordings in May 2009.

       St. Jude received these recordings through the discovery process in October 2009. St. Jude’s

counsel gave the tapes to John Grubiak, Senior Vice President for St. Jude’s East Sales Division,

which included Columbus. Grubiak reviewed the recordings over the next two months. His review

suggested that the people Jones spoke with did not know that they were being recorded and that

Jones painted St. Jude in a poor light. Indeed, one physician stated that he would be less likely to

use St. Jude products in the future because of the conversation. Further, one of the recordings

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Jones v. St. Jude Medical, S.C.

captured a St. Jude human resources manager telling Jones not to involve customers in internal St.

Jude business. Grubiak concluded that Jones had disregarded the human resources manager’s

directive. In light of what he heard and his conclusion that Jones was disloyal to St. Jude, Grubiak

decided Jones should be terminated. He communicated this to human resources in December 2009.

Grubiak was unaware of any employee who had violated the recording policy and had not been fired

for the violation.

                                   PROCEDURAL HISTORY

        Jones initiated this action on November 6, 2008. In her second amended complaint, she

alleged retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C.

§ 2000e-3(a), 42 U.S.C. § 1981, and Ohio Revised Code Chapter 4112. She also brought claims of

discrimination based on race, color, and gender under Title VII, 42 U.S.C. § 1981, and Ohio Revised

Code Chapter 4112; a claim under the Equal Pay Act under 29 U.S.C. § 206(d); and a claim of wage

discrimination under Ohio Revised Code § 4111.17. On December 30, 2010, defendants filed a

motion for summary judgment in the district court, seeking judgment in their favor on all claims.

In her memo opposing summary judgment, Jones also alleged retaliatory hostile work environment

in violation of Title VII and the Ohio Civil Rights Act. On September 29, 2011, the district court

granted the motion for summary judgment on all claims. Judgment was entered on the same day.

Notice of appeal was timely filed on October 28, 2011. In her appeal, Jones contests only the district

court’s dismissal of the retaliation claims.




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Jones v. St. Jude Medical, S.C.

                                            ANALYSIS

       A. Standard of Review

       We review a district court’s grant of summary judgment de novo. Geiger v. Tower Auto.,

579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate when the materials in the

record “show[] that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[S]ummary judgment will not lie if . . . the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering this question, the Court reviews the

record in the light most favorable to the nonmoving party, drawing “all justifiable inferences” in her

favor. Id. at 255.

       B. Retaliation Claims

       Title VII prohibits an employer from retaliating against an employee who “opposed any

practice made an unlawful employment practice by this subchapter, or . . . made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” 42 U.S.C. § 2000e-3(a). Courts employ the same test for Title VII and § 1981 claims.

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 & n.5 (6th Cir. 2000). Ohio courts employ the

same test for claims of retaliation under Ohio Revised Code Chapter 4112. Abbott v. Crown Motor

Co., Inc., 348 F.3d 537, 541 (6th Cir. 2003).

       Absent direct evidence, as is the case here, courts analyze Title VII retaliation actions under

a modified version of the McDonnell Douglas burden-shifting framework. A plaintiff must first

establish a prima facie case of retaliation by showing (1) she engaged in activity protected by Title

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Jones v. St. Jude Medical, S.C.

VII; (2) the defendant knew the plaintiff exercised her protected rights; (3) the defendant thereafter

took action materially adverse to the plaintiff; and (4) there is a causal connection between the

protected activity and the materially adverse action. Canitia v. Yellow Freight Sys., Inc., 903 F.2d

1064, 1066 (6th Cir. 1990). If the plaintiff establishes a prima facie case, the burden shifts to the

defendant to present a legitimate, nonpretextual reason for the action. Id. If the defendant comes

forward with a qualifying reason, the plaintiff must then demonstrate that the proffered reason was

a pretext, and not the real reason for the employment decision. Id.

               1. Prima Facie Case

       For purposes of this opinion, we assume that Jones made a prima facie case of retaliation.

               2. St. Jude’s Legitimate Nonpretextual Reasons

       St. Jude brought forth two alleged nonpretextual reasons for Jones’ termination: (1) her

failure to meet the requirements of her performance improvement plan and (2) her recording of

conversations in violation of St. Jude company policy.

               3. Pretext

       “[T]o survive summary judgment a plaintiff need only produce enough evidence . . . to rebut,

but not disprove, the defendant’s proffered rationale.” Blair v. Henry Filters, Inc., 505 F.3d 517, 532

(6th Cir. 2007) (assessing pretext in a discrimination case), overruled on other grounds by Gross v.

Fin. Servs., Inc., 557 U.S. 167 (2009). In order to disprove the proffered rationale, a plaintiff must

show one of the following: “(1) that the proffered reasons had no basis in fact, (2) that the proffered

reasons did not actually motivate [her] discharge, or (3) that they were insufficient to motivate

discharge.” Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (alteration in original)

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Jones v. St. Jude Medical, S.C.

(internal quotation marks omitted). Jones attempts to rebut St. Jude’s proffered rationale under the

second manner of proving pretext, whereby

       the plaintiff attempts to indict the credibility of his employer’s explanation by
       showing circumstances which tend to prove that an illegal motivation was more
       likely than that offered by the defendant. In other words, the plaintiff argues that the
       sheer weight of the circumstantial evidence of discrimination makes it “more likely
       than not” that the employer’s explanation is a pretext, or coverup.


Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on

other grounds by, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

       “[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason,”

the employee cannot establish pretext simply because the reason is ultimately shown to be incorrect.

Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). The key in

assessing whether an employer had an honest belief is “whether the employer made a reasonably

informed and considered decision before taking an adverse employment action.” Smith v. Chrysler

Corp., 155 F.3d 799, 807 (6th Cir. 1998). An employer has an honest belief in its rationale when

it “reasonably relied ‘on the particularized facts that were before it at the time the decision was

made.’” Majewski, 274 F.3d at 1117 (quoting Smith, 155 F.3d at 807)). “[W]e do not require that the

decisional process used by the employer be optimal or that it left no stone unturned.” Smith, 155

F.3d at 807. Instead, a plaintiff must “put forth evidence which demonstrates that the employer did

not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.”

Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001) (citing Smith, 155 F.3d at 806-07).




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          When an employer offers more than one independent, legitimate, non-discriminatory reason

for an adverse employment action, even if one is found to be pretextual but at least one other is not,

the defendant employer is still entitled to summary judgment. Burks v. Yellow Transp., Inc., 258 F.

App’x 867, 876 (6th Cir. 2008); Rufo v. Dave & Busters, Inc., No. 06-3111, 2007 WL 247891, at

**3-4 (6th Cir. Jan. 31, 2007); Smith, 155 F.3d at 806; Sims v. Cleland, 813 F.2d 790, 793 (6th Cir.

1987).     Further, when the proffered reasons are independent of each other, “the falsity or

incorrectness of one may not impeach the credibility of the remaining reason(s).” Sims, 813 F.2d

at 793.

          Smith noted a narrow exception to the rule:

          [W]e wish to point out that an employer’s strategy of simply tossing out a number of
          reasons to support its employment action in the hope that one of them will “stick”
          could easily backfire. “There may be cases in which the multiple grounds offered by
          the defendant for the adverse action of which the plaintiff complains are so
          intertwined, or the pretextual character of one of them so fishy and suspicious, that
          the plaintiff could withstand summary judgment.” Russell v. Acme-Evans Co., 51
          F.3d 64, 70 (7th Cir. 1995). Thus a multitude of suspicious explanations may itself
          suggest that the employer’s investigatory process was so questionable that any
          application of the “honest belief” rule is inappropriate.


Smith, 155 F.3d at 809. However, the Smith court did not find that the facts presented there fit

within the exception. Indeed, “[t]he two justifications and the sources from which they were derived

were separate in nature.” Id.

          At issue in Smith was whether the defendant’s proffered reasons for terminating the

plaintiff—that the plaintiff had lied on employment forms about suffering from narcolepsy and

unusual fatigue—were pretextual. Id. at 805. One of the proffered reasons “related to whether


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Jones v. St. Jude Medical, S.C.

Smith suffered from narcolepsy, which was answered by reasonably relying on the opinions of Smith

himself and his treating physician.” Id. at 809. Objective evidence supported a finding that (1) the

plaintiff lied on an employment form about his condition and (2) that the defendant had this

information when deciding to terminate the plaintiff. Id. at 808. “[T]he other involved a more

specific judgment on the disorder’s particular symptoms that was based on the employer’s own

subjective opinion.” Id. at 809. The defendant tried to support this rationale with evidence obtained

after deciding to terminate the plaintiff. Id. at 808-09. The court noted that a defendant cannot

buttress its termination decision with post hoc justifications. Id. at 809. However, even though the

court determined that the defendants misjudged the second proffered rationale, this did not “drag

down its more general and medically supported conclusion concerning the former.” Id. We

therefore affirmed summary judgment in the case even though the plaintiff raised doubt as to one of

the employer’s two articulated reasons because such doubt was insufficient to call into question the

employer’s other reason. Id. In other words, the suspicion or even taint of pretext from one reason

does not preclude summary judgment as long as the other reason is independent and legitimate. Id.

                       a. Termination for Failing to Meet Requirements of Performance
                       Improvement Plan

       We assume, for purposes of this opinion, that Jones rebutted St. Jude’s first alleged

nonpretextual reason for her termination—her failure to meet the requirements of the performance

improvement plan. We therefore move to the second proffered rationale for terminating Jones.




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                       b. Termination for Tape Recordings

       In order to prevail, Jones must show that St. Jude’s decision to fire her for making the

recordings was a mere pretext, something she cannot do. Jones concedes (1) that the recordings were

made in derogation of company policy; (2) that she recorded the conversations, some even after she

knew it violated company policy; and (3) that the recordings would be a sufficient basis for

termination. She contends, however, that there is an inference that her termination for making the

recordings was pretext. She also argues that, regardless of the company recording policy, her

recordings cannot provide a legitimate basis for her termination because they were protected activity

under Title VII.

       Jones argues that in totality the reasonable inference is that her employment termination

based on making the recordings was a mere pretext for retaliation. A large part of her argument

depends on the length of time St. Jude took to review the recordings. She states that St. Jude knew

of the recordings in May and did not fire her until December. However, she does not contest that

the recordings were not provided to St. Jude until October. Further, St. Jude passed the recordings

to its area senior vice president, Grubiak, for review. Jones argues that her case falls within the

narrow exception articulated in Smith that the two reasons for her termination proffered by St. Jude

are so intertwined that a reasonable juror could find pretext. She relies on May v. Pilot Travel Ctrs.

LLC, No. 2:05-cv-918, 2007 WL 108001 (S.D. Ohio Jan. 5, 2007), for this argument.

       In May the plaintiff was fired shortly after taking FMLA leave. Id. at *1. The plaintiff filed

a lawsuit alleging FMLA retaliation. Id. at *2. The defendants brought forth two allegedly

nondiscriminatory reasons for plaintiff’s termination: the plaintiff (1) worked employees off the

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Jones v. St. Jude Medical, S.C.

clock to avoid paying overtime (“overtime”) and (2) rolled invoices to make payments fall into a

different time frame to artificially inflate profits (“rolling invoices”). Id. at *1.

        The reasons for terminating the plaintiff were brought forth by the same supervisor in the

same investigation. Id. at *6. Further, the overtime justification was not submitted through the

defendant’s decisionmaking process when the company was deciding whether to terminate plaintiff.

Id. This, according to the court, suggested post hoc justification of the termination and thereby

called into question the rolling-invoices justification. Additionally, the court found that the

investigation into the overtime justification was clearly deficient, which undermined an honest belief

defense. Id. at *7. The court held that taking all of these things together the problems present in the

overtime rationale so undermined the rolling-invoices rationale that a reasonable juror could find

pretext. Id.

        However, May is inapposite because of its facts—Jones was terminated as a result of two

decisions arising out of two different investigations conducted by different supervisors. Further,

Jones has not produced any proof that Grubiak’s investigation was clearly deficient; the proof shows

that Grubiak listened to the recordings before deciding to terminate Jones. Therefore, this is not a

case where the employer failed to make “a reasonably informed and considered decision before

taking an adverse employment action.” Smith, 155 F.3d at 807. Indeed, objective evidence supports

a finding that (1) Jones violated a company policy, (2) the violation could result in termination, and

(3) Grubiak had this information when he decided to terminate Jones.

        The facts in this case are more analogous to the facts presented in Rufo. There, the

defendants brought forth two reasons for denying the plaintiff a promotion—poor performance and

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Jones v. St. Jude Medical, S.C.

poor judgment. Rufo, 2007 WL 247891, at *3. The court believed that a genuine issue of material

fact existed about whether the proffered reason of poor judgment was pretextual. Id. at *4.

However, the court held that the other stated reason (poor performance) was not pretextual. In

particular the court noted that Rufo failed to offer any evidence “to call into question the veracity of

[the alleged instances of poor performance] and no arguments for why they are not legitimate reasons

to deny him a promotion.” Id. The plaintiff failed to produce any evidence rebutting the defendant’s

poor performance rationale for terminating the plaintiff. Id. Similarly, Jones fails to call into

question her violation of company policy and why the violation is not a legitimate reason for her

termination. She effectively concedes that her actions were a legitimate reason to fire her.

        Although Jones offered evidence which may have “raised doubt” as to the legitimacy of the

reason for failing to achieve the requirements of the improvement plan, she raised no such questions

about the secret recording of conversations, admitting that it was a terminable offense and a clear

violation of company policy. Additionally, the reasons are independent of each other. Grubiak

terminated Jones for violating the tape recording policy, while Moore terminated Jones for failing

to meet the requirements of the performance improvement plan. Therefore, just as in Smith, despite

potential questions of material fact as to one articulated reason, the other independent, legitimate,

nondiscriminatory reason stands, and summary judgment for St. Jude is appropriate.

        Finally, Jones contends that, regardless of the company recording policy, her recordings

cannot provide a legitimate basis for her firing because they were protected activity under Title VII.

Under Title VII, an employer is forbidden from retaliating against an employee because she opposes

the employer’s discriminatory activity—the “opposition clause”—or because she participates in Title

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Jones v. St. Jude Medical, S.C.

VII legal proceedings—the “participation clause.” 42 U.S.C. § 2000e-3(a). Only the opposition

clause applies in Jones’s case, because she made many of the recordings well before she first filed

a discrimination complaint with the Equal Employment Opportunity Commission in June 2008.

       An employee may claim protection for activities opposed to alleged discrimination so long

as the manner of the employee’s opposition is reasonable. See Johnson, 215 F.3d at 580. Jones

invokes the balancing test of Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008), to

support the argument that her recordings were reasonable opposition. In Niswander, the plaintiff

violated company policy by disclosing confidential documents in the course of a class-action lawsuit.

The multi-factor balancing test we constructed in Niswander applied specifically to confidential

documents, and thus is not directly relevant here. However, after applying the balancing test, we

ultimately found that the Niswander plaintiff’s activities were unreasonable and thus not protected

as a matter of law. See Niswander, 529 F.3d at 721, 727. In doing so, we relied heavily on the fact

that the plaintiff could have preserved evidence in ways that did not violate the defendant’s

nondisclosure policy. Id. at 727.

       In a similar vein, Jones has not shown why she needed to violate the recording policy in order

to oppose defendants’ alleged discrimination. She might have taken notes of the conversations,

obtained the same information through legal discovery, or simply asked her interlocutors for

permission to record. Jones argues that her conduct was reasonable because the recordings were not

illegal, did not breach confidential information, were not disruptive of business operations, and were

not disseminated beyond the litigation. But none of this suggests that the recording policy was

illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did

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not violate the policy. In light of these considerations, we decline to hold that Jones’ recordings were

protected.

                                          CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment.




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