By Henry Hilston and Melissa McKinney
Facts
In Netter v. Barnes,[1]the Fourth Circuit reviewed Catherine Netter’s Title VII claim against her former employer, Sheriff BJ Barnes. Catherine Netter, a black, Muslim woman, worked as a detention services supervisor for the Guilford County Sheriff’s Office.[2] In April 2014, after sixteen years of maintaining a clean record, Netter received a disciplinary sanction, preventing her from testing for a promotion.[3] After filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Guilford County Human Resources, in which Netter alleged discrimination claims, Netter began gathering evidence for her suit.[4] Despite knowingly lacking the authority to do so, Netter copied and distributed confidential employee files to her lawyer and the EEOC.[5] Upon discovering Netter’s actions, a professional standards officer from the Sheriff’s Officer recommended Netter’s dismissal for three reasons: (1) Netter violated department policy by copying and distributing the employee files; (2) Netter failed to conform to the professional standards required for her position; and (3) Netter violated N.C. Gen. Stat. § 153A-98, which bars the unauthorized distribution of employee files.[6] Sheriff Barnes agreed with the recommendation and fired Netter.[7]
Procedural History
Following her termination, Netter filed a new complaint with the EEOC.[8] This claim argued that the Sheriff fired her for engaging in Title VII protected activity.[9] The EEOC dismissed her claim but allowed her to amend her original complaint to add a retaliation claim.[10] The district court granted summary judgment for the Sheriff on all of Netter’s claims. Netter then appealed to the Fourth Circuit arguing for reversal for her retaliation claim.[11] Upon appeal, the Fourth Circuit considered whether Netter’s unauthorized copying and distribution of employee files constituted “protected activity” under the anti-retaliation provision of Title VII and thus protects her from termination.[12]
Appellant’s Arguments
On appeal, Netter argued that section 704(a) of Title VII prohibits the retaliation of an employer against an employee for an employee’s “participation in any manner in an investigation, proceeding, or hearing.”[13] Thus, her actions regarding the unauthorized copying and distribution of employee files constituted protected activity for which she cannot be terminated, regardless of any violations of state law.[14] Alternatively, Netter argued that section 704(a) provides protection for activity that opposes an employer’s unlawful practice.[15]
Appellee’s Arguments
On appeal, the Sheriff argued that Netter’s review and disclosure of a confidential personnel file in violation of NCGS 153A-98, which makes such conduct a class 3 misdemeanor,[16]was not only a legitimate basis for firing Netter that but also outside the scope of protected activities envisioned as protected participation activity in Title VII.[17]
The Sheriff argued that unauthorized disclosure of confidential information is a legitimate basis for disciplining an employee because such a disclosure is a violation of an employer’s trust and policies that is thereby worthy of discipline.[18] The appellee further suggested that a violation of this sort would be a valid basis for discipline even where that information was used to support a discrimination claim, adducing Fourth Circuit case law in support.[19]
In support of this argument, the Sheriff asked the court to hold that “any disclosure of information in violation of an employer’s confidentiality policy falls beyond the scope of the participation clause.”[20] The argument for this request had two parts. First, the Sheriff urged the court to adopt a Sixth Circuit holding that suggested adding a reasonableness requirement to participation claims where the claim involved the disclosure of confidential information.[21] Second, the Sheriff argued that the court allow for discipline for conduct that is related to protected activity but distinct and separable from that activity.[22]
Holding
Affirming the lower court judgment, the court held that “Netter’s unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity.”[23] In respect to opposition, the court found that it would be impossible to classify Netter’s activity as opposition because it was decidedly unreasonable.[24] For conduct to qualify as opposition, it must be reasonable conduct motivated by a reasonable belief that something unlawful had occurred.[25] The triggering fact here was that Netter viewed the files. While it is likely that the disclosure itself was unreasonable, her review of the files disqualified this conduct from the opposition category because of its inherent unreasonableness.[26] The court thus dismissed Netter’s alternative argument.[27]
In respect to participation, the court balanced an employee’s need to gather evidence for a claim with an employer’s need to keep personnel files secure and confidential.[28] The court chose to decline deciding whether a disclosure of confidential files will always provide a legitimate, non-retaliatory basis for discipline.[29] The Sheriff’s request for a broad ruling on whether a violation of a confidentiality policy by disclosure will automatically place that conduct outside of participation went unanswered.[30] Instead, the court placed Netter’s conduct outside the participation category because she violated a valid, generally-applicable state law.[31] Because this state law does not “expressly [contradict] Title VII’s provisions nor meaningfully [impede] a litigant’s ability to pursue a title VII claim,” violation of this statute removes the conduct from protected participation activity.[32]
Accordingly, the court’s holding left Netter without any basis to pursue a retaliation claim under Title VII because her conduct fell outside the scope of participation and opposition.[33]
Conclusion
In Netterv.Barnes, the issue was whether Netter’s viewing and disclosure of confidential personnel files to the EEOC to build a discrimination claim on the basis of comparators counts as opposition or participation conduct such that Netter was protected from retaliation under 704(a) of Title VII. Ultimately, the court found her conduct was neither opposition nor participation conduct. While Netter could not proceed on her claim that she was retaliated against, the court appears to leave space for some plaintiffs in the Fourth Circuit to use confidential personnel files to build their case, especially if there is no statute making it a crime.[34] In the absence of such a statute, an employee who discloses such files and does not review them will likely be able to claim protection under Title VII.
[1]No. 18-1039, 2018 WL 5986077 (4th Cir. Nov. 15, 2018).
[2]Id.at *1.
[3]Id.
[4]Id.
[5]Id.
[6]Id.
[7]Id.
[8]Id.
[9]Id.
[10]Id.
[11]Id.at *2.
[12]Id.at *3.
[13]Id.at *2–3 (citation omitted).
[14]Id.at *3.
[15]Id.
[16]Id.at *4 (citation omitted).
[17]Brief for Appellee at 21–22, Netter v. Barnes, 2018 WL 5986077 (4th Cir. 2018) (No. 18-1039).
[18]Id.
[19]Id.
[20]Netter, 2018 WL 5986077, at *5.
[21]Id.
[22]Id.
[23]Id.at *4.
[24]Id.at *3.
[25]Id.
[26]Id.
[27]Id.
[28]Id.at *4.
[29]Id.
[30]Id.at *5.
[31]Id.at *4.
[32]Id.
[33]Id.
[34]Id.at *4–*5.
