The United States Court of Appeals for the Fourth Circuit has ruled that an employee’s review and copying of confidential personnel files to be used in support of her charge of discrimination is not protected by Title VII’s anti-retaliation provisions when it was done in violation of a state law. Netter v. Barnes, No. 18-1039 (4th Cir. 11/15/18).
The case arose when Catherine Netter, a 19-year veteran of the Guilford County, North Carolina Sheriff’s office, brought a claim of discrimination with the EEOC. Ms. Netter alleged that she was denied a promotion and unfairly disciplined because she is an African-American Muslim.
In response to her complaint, an investigator for the Guilford County Human Resources office asked Ms. Netter if she had evidence to support her claim of discrimination. In turn, Ms. Netter copied the personnel files of two of her subordinates and provided them to the investigator, along with the personnel files of three other employees that she obtained from a co-worker. Ms. Netter also gave a copy of the files to the EEOC. Ms. Netter admitted that she knew the files were confidential and that she knew she did not have the authority to access or disclose them.
When the Sheriff’s Office learned (through pre-trial discovery) what Ms. Netter had done, it fired her for the unauthorized review, duplication and dissemination of these confidential personnel records in violation of North Carolina law. Ms. Netter then filed a second EEOC charge, alleging that she had engaged in protected activity under Title VII when she copied and disclosed the files. The EEOC dismissed her charge, and Ms. Netter then filed suit. The trial court granted summary judgment to the Sheriff’s Office, which led to Ms. Netter’s appeal to the Fourth Circuit.
The Fourth Circuit affirmed the trial court’s grant of summary judgment, ruling that Ms. Netter’s conduct was not protected by either the opposition or participation clauses in Title VII’s anti-retaliation provisions. First, the Court rejected the argument that Ms. Netter could lawfully review and disclose the material because she reasonably believed that the County’s Human Resources investigator has a right to access the files. As stated by the Court, “[w]e are loath to provide employees an incentive to rifle through confidential files looking for evidence.”
The Fourth Circuit next addressed the argument that Ms. Netter’s conduct was protected by the participation clause because it was necessary to provide evidence of disparate treatment. The Court held that it was undisputed that the unauthorized copying and disclosure of the personnel files violated North Carolina law, and the Fourth Circuit has long held that illegal activity is not protected by Title VII’s anti-retaliation provisions. Laughlin v Metro. Wash. Airports Auth., 149 F. 3d 253, 259 (4th Cir. 1998).
Significantly, the Fourth Circuit was careful to explain that it was not holding that any disclosure of information in violation of an employer’s confidentiality policy falls outside the protections of Title VII’s participation clause. The Court noted that Title VII protects “participation in any manner in an investigation, proceeding, or hearing,” and therefore emphasized that its holding was limited to a confidentiality breach that violated a valid state law.