Unauthorized Review & Disclosure of Personnel Files to Support Discrimination Claim NOT Protected Activity Under Title VII

Netter v. Sheriff BJ Barnes and Guilford County Sheriff’s Office - Fourth Circuit Court of Appeals

Facts:  Catherine Netter (“Netter”), a Black and Muslim woman, worked for the Guilford County Sheriff’s Office for about nineteen years.  For nearly sixteen years, she had a clean disciplinary record.  However, in April of 2014 she received a disciplinary sanction that prevented her from testing for a promotion.  She proceeded to file a complaint with Guilford County Human Resources and the Equal Employment Opportunity Commission (“EEOC”).  An investigator from Human Resources followed up with Netter and asked her if she had any evidence to support her claim that similarly situated officers, that were not Black or Muslim, had not been similarly disciplined.  Netter proceeded to review, copy, and supply the investigator with the confidential personnel files of five employees.  Netter apparently acknowledged that she knew the files were confidential and did not seek approval of any of the employees to disclose the information.  She also provided copies of the files to the EEOC and her attorney.

In response to a discovery request, Netter’s attorney provided copies of the personnel files to BJ Barnes (“Barnes”), the Sheriff of Guilford County.  During a deposition, Netter admitted to her conduct.  A professional standards officer subsequently recommended Netter be terminated for:  1) violating department policy that restricted the unauthorized review, copy, and dissemination of the records; 2) failing to conform to the work standards established for her position; and 3) violating North Carolina law that imposed criminal penalties for reviewing or disseminating county personnel files without authorization.  She was subsequently terminated.

Netter filed another charge with the EEOC and claimed that the Sheriff terminated her for engaging in protected Title VII activity.  After the EEOC dismissed the charge, Netter’s discrimination claim was combined with the new retaliation claim.  The District Court granted summary judgment as to Barnes on all claims.  Netter proceeded to appeal the ruling.

Holding:  As readers are likely aware, Title VII prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin.”  Employers are also prohibited from retaliating against an employee that contests an unlawful employment action by the employer.  Notably, Title VII shields both participation and opposition from retaliation.  Generally speaking, under Title VII, an employee is protected from participation in an investigation, proceeding, or hearing.  As well, an employer is barred from retaliating against an employee that opposes an unlawful employment practice.

The Court quickly did away with the opposition portion of Netter’s claim.  Prior case law established that the unauthorized disclosure of confidential information to a third party is generally held to be unreasonable.  Even if Netter thought the county investigator had a right to access the employee personnel files, Netter could not establish that her review of the files (without permission) fell within the scope of protected opposition activity under Title VII.

As for the participation portion of Netter’s claim, the Court recognized that the evidentiary difficulties a claimant faces, when pressing claims of workplace discrimination, must be accounted for.  In these situations, a claimant must normally produce evidence of comparators or similarly situated employees of a different race, color, religion, sex, or national origin who have been treated differently.  Once an employee recognizes potential discrimination and files a charge of discrimination with the EEOC, the EEOC may investigate and issue subpoenas for relevant documents.  However an employee has no power to subpoena the evidence herself.  In this instance, the Court recognized that Netter’s conduct was in violation of state law.  The relevant North Carolina statute was not preempted by Title VII as the statue did not expressly contradict the language of Title VII nor impede a claimant’s ability to pursue a Title VII claim.

Judgment:  The Fourth Circuit Court of Appeals affirmed summary judgment in favor of the employer on the grounds that the employee’s review and disclosure of confidential personnel files to support her Title VII claim for discrimination and retaliation was not protected activity under Title VII and was in violation of a North Carolina statute barring this type of unlawful disclosure.

The Takeaway:  This decision has the potential to have a monumental impact for employers and employees alike.  As some legal scholars have pointed out, following this decision it will be interesting to see what steps employers take to label certain documents as ‘confidential’ in an effort to restrict/hinder their usage in similar Title VII cases.  Of course, as the Court pointed out here, just because an employer classifies documents as ‘confidential’ does not necessarily shut the door on those documents being used to establish a valid discrimination claim.  For instance, those documents could still be subpoenaed.  However, the Court’s opinion here reinforces the notion that an employee, acting alone, cannot rifle through confidential documents of the employer and then use those confidential documents to establish a valid Title VII claim.  Employees take note...with this decision, the Court has established that there are certain pitfalls that employees can fall into when trying to establish a a Title VII claim that can prove detrimental to the viability of their claim.

Majority Opinion Judge:  Judge Motz

Date:  November 15, 2018

Opinion:  http://www.ca4.uscourts.gov/Opinions/181039.P.pdf