Title VII's Protections Don't Extend That Far—4th Circuit Says Review and Copying of Confidential Files Not Protected Activity

December 4, 2018

By Paul W. Mengel III

Catherine Netter, a 19-year employee of the Guilford County, N.C., Sheriff’s Office, believed a disciplinary sanction she received in 2014, which impeded her ability to be promoted, was motivated by discrimination. Netter, who is African-American and Muslim, felt that other similarly situated officers who were neither African-American nor Muslim had not been disciplined in a similar manner, so she filed complaints with the Equal Opportunity Employment Commission (“EEOC”) and the Guilford County Human Resources Department.

So far, so good. But, in response to an investigator’s inquiry about any evidence she might have in support of her claims, Netter made a fateful misstep: without seeking authorization to do so, she copied some confidential personnel files of two of her subordinates to which she had access and requested and obtained three other confidential personnel files from a co-worker in another office. These files were provided to the investigator and, once her EEOC claim was denied and she filed suit in U. S. District Court against the Guilford County Sheriff’s Office and Sheriff BJ Barnes, they were also provided to her attorney. The files eventually found their way to Barnes’ counsel through discovery, and Netter acknowledged in her deposition that she copied the confidential files without permission. The copying of the files not only violated Sheriff’s office policy, but constituted a class-3 misdemeanor under state law, and Barnes fired Netter as a result.

After being fired, Netter amended her lawsuit to add a claim of retaliation under Title VII of the Civil Rights Act of 1964 (the “Act”). Section 704(a) of the Act prohibits an employer from retaliating against an employee because she “has opposed any practice made an unlawful employment practice by this subchapter,” or because she “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Thus, two types of activity are protected under § 704(a): participation in investigations and proceedings and opposition to unlawful employment practices. Netter advanced both arguments at the District Court level, that is, that her conduct constituted protected participation activity under the antiretaliation provisions of the Act and that her review and disclosure of the confidential files constituted protected opposition activity. She lost both arguments at summary judgment and, after her case was dismissed, appealed to the 4th Circuit.

In Netter v. Sheriff BJ Barnes and Guilford County Sheriff's Office, No. 18-1039 (4th Cir., Nov. 15, 2018), the 4th Circuit agreed with the trial court and affirmed the lower court’s judgment. In disposing of Netter’s “opposition” argument, it echoed the ruling in Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253 (4th Cir. 1998), which noted that, under the opposition clause, unauthorized disclosure of confidential information to third parties is generally unreasonable, as the employer’s substantial and legitimate interest in maintaining their confidentiality trumps the employee’s interest in their use to advance a discrimination case. The Court noted it was “loath to provide employees an incentive to rifle through confidential files looking for evidence.”

With regard to Netter’s “participation” argument, the Court observed that the participation clause affords more substantial protections for conduct than does the opposition clause, and it expressed a reluctance to “read the participation clause so narrowly as to improperly limit an employee’s ability to gather evidence for a bona fide Title VII claim.” Nevertheless, it concluded that Netter’s unauthorized inspection of the confidential files did not constitute protected participation activity because in so doing she “violated a valid, generally-applicable state law.” The Court noted that, if the state law at issue contradicted Title VII’s provisions or impeded a litigant’s ability to pursue a claim under the Act, then Netter’s actions in violating it might have been protected under the Supremacy Clause—such was not the case here. The Court found that Netter could not, under these circumstances, satisfy the “but-for” causation requirement for participation claims; that is, she could not establish that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action of the employer because Barnes based Netter’s termination on her violation of a legitimate state law. In sum, because § 704(a) of the Act does not protect a violation of a valid state law, Netter could not meet her burden of proving she was terminated because she engaged in protected activity.

About the Author: Paul Mengel is counsel and heads the Litigation Group. He may be reached at pmengel@pilieromazza.com.
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