On November 15, 2018, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously held in Netter v. Barnes that an employee did not engage in “opposition or participation” activity protected by Title VII of the Civil Rights Act of 1964 when she reviewed and duplicated confidential personnel files without authorization. The plaintiff, an African-American Muslim woman, worked for the Guilford County (North Carolina) Sheriff’s Office for over sixteen years with an unblemished record until she received a disciplinary sanction that barred her from being considered for a promotion. She filed charges with Guilford County Human Resources and the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging that the discipline was an act of race and/or religious discrimination because the Sheriff’s Office had not disciplined other similarly situated officers who were neither African-American nor Muslim. When an investigator from the county HR department asked for evidence to support her discrimination claims, the plaintiff reviewed and copied – without permission – the confidential personnel files of five other employees, and turned those records over the investigator as well as to the EEOC.
Upon learning of the plaintiff’s actions, the Sheriff’s Office decided to terminate her employment because (1) she violated department policy, (2) she failed to conform to work standards established for her position, and (3) she violated N.C. Gen. Stat § 153A-98, which imposes criminal penalties for reviewing or disseminating county personnel files without approval. In turn, the plaintiff filed a new charge with the EEOC, arguing that her employment was terminated because she engaged in protected activity under Title VII, and eventually amended her existing Title VII discrimination complaint to include the new retaliation claim. The district court granted the Sheriff Office’s summary judgment motion on all claims. On appeal to the Fourth Circuit, the only issue before the court was whether Title VII shielded the plaintiff’s actions in copying the personnel records without obtaining authorization to do so.
Under Section 704(a) of Title VII, employees are protected against retaliation when they have reasonably opposed an unlawful employment practice or participated in any manner in an investigation or other proceeding. Before the Fourth Circuit, the plaintiff argued that her unauthorized review, duplication, and disclosure of confidential personnel information qualified as both protected “opposition” and “participation” under Title VII.
The court disagreed. First, the court rejected the plaintiff’s opposition argument, reasoning that “unauthorized disclosures of confidential information to third parties are generally unreasonable” under the opposition clause. Next, the court considered whether the plaintiff’s actions were protected under the broader category of participation, and ultimately affirmed the district court’s ruling. The Fourth Circuit held that the plaintiff’s conduct did not constitute protected participation because it violated a state law, N.C. Gen. Stat § 153A-98(f). Accordingly, the court reasoned that illegal actions do not constitute protected activity under the participation clause of Title VII. The court stated that although the EEOC has the right to subpoena confidential records during the course of an investigation, an individual employee does not have the same authority. (Here, the plaintiff could have told the EEOC the names of the employees whose records she copied and turned over, and the EEOC could have requested or, if necessary, subpoenaed those records from the Sherriff’s Office.) Further, the court explained that in order for it to reverse the district court’s ruling, it would need to be convinced that “unlawful retaliation would not have occurred in the absence of the alleged wrongful action … of the employer.” However, because the Sheriff’s Office cited the plaintiff’s violation of the statute as a justification for her discharge, the court found the record established that the plaintiff would have been terminated solely because of her violation of the state law. Thus, the court held that the plaintiff did not meet her burden of proving that the Sheriff’s Office terminated her employment in violation of Title VII.
This case is a good reminder that although broad in its protections, Title VII’s participation clause does have its limits, and suggests that employers may be on solid ground in terminating an employee who violates a valid state law, even if the illegal conduct is done in furtherance of an employment discrimination claim.