An employee cannot break the law in order to collect evidence in support of a workplace discrimination lawsuit, a 4th U.S. Circuit Court of Appeals panel unanimously ruled Nov. 15.
Judge Diana Motz wrote that for an employee’s actions to be considered protected from retaliatory actions under Section 704(a) of Title VII of the Civil Rights Act, the plaintiff cannot illegally gain access to and copy confidential personnel records.
The case began in April 2014 when Catherine Netter, an African-American Muslim woman who worked for the sheriff’s office in Guilford County, North Carolina received a disciplinary sanction barring her from testing for a promotion.
She filed complaints with the Guilford County Human Resources Department and the Equal Employment Opportunity Commission, alleging other officers who were neither African-American nor Muslim did not receive similar discipline for similar actions.
It is unclear from the opinion what Netter did to be disciplined. However, when an investigator from Human Resources asked for evidence to support her claims, Netter supplied copies of the confidential personnel files of two subordinate employees who she supervised at a jail in Greensboro. She also supplied copies of files from other jails in the area which she got through a personal request from a co-worker.
She also supplied the copies to the investigators from the EEOC and the lawyer who was representing her in her claim.
She also eventually provided these copies to Sheriff B.J. Barnes, who was a co-defendant in the case along with the Guilford County Sheriff’s Office, during the discovery phase of proceedings. When asked how she obtained the files, Netter admitted the truth and was fired shortly thereafter for breaking department policy and for violating the state law prohibiting the review or sharing of confidential personnel files without authorization.
Shortly thereafter, she filed a new claim, claiming retaliation under Title VII. After discovery, the district court gave summary judgment to the defense on all claims, including discrimination and retaliation. Netter filed an appeal, challenging only the order concerning the retaliation claim.
Motz wrote in the opinion that section 704(a) of Title VII shields employees from retaliation for two types of activity: Participation and opposition. For an employee’s actions to be considered protected under this section, she must prove she reasonably believed she was being discriminated against and that her conduct was reasonable. The plaintiff must, therefore, show that the retaliation wouldn’t have happened but for the alleged wrongful acts of the employer. Motz said that Netter failed to show this.
“Netter’s review of the files, which she lacked permission to access for this purpose, falls decidedly outside the scope of reasonable opposition,” Motz said. “We are loath ‘to provide employees an incentive to rifle through confidential files looking for evidence.’”
Motz said that while the participation clause offers lots of room for protection of conduct in connection to a Title VII proceeding, in this case, Netter broke the law, and her actions, therefore, cannot be protected.
While Netter argued that illegal activities can be protected if the state law being violated is in conflict with federal law, Motz said this is not the case here because Netter could have acquired the information through the civil discovery process. Because the sheriff’s office fired her for breaking the law, Netter cannot prove she would not have been fired but for the actions of her employer.
While the court ruled against Netter, it made clear in the opinion that their holding is narrow, despite the sheriff’s request that the court hold that any disclosure of confidential information falls beyond the scope of the participation clause.
“The statutory text remains unchanged today, and we see no basis to create a blanket exception to the Glover analysis for cases that happen to implicate employer confidentiality policies,” Motz said. “Both broad rules suggested by the Sheriff risk eroding the protection afforded by the participation clause, thereby threatening the full employee cooperation on which Title VII depends.”
Netter’s attorney Will Fong of Hensel Law in Greensboro said that while the ruling is an unfortunate one for his client, he’s glad the court chose not to create a blanket exception making it more difficult for employees to be protected from retaliatory actions.
“The opinion is great, but not for my client in this case,” Fong said. “I disagree with the court’s ruling, but I accept it. There were two ways it could go and it went that way.”
While Fong’s client will not be able to collect on lost wages, he said that a changing of the guard in the Guilford County Sheriff’s office – Barnes lost the recent election to challenger Danny Rogers – bodes well for Netter.
“Things are looking up for her,” Fong said. “She’s getting hired back … and I think she’s at peace with it.”
Attorneys for Barnes and the sheriff’s office, James Powell, Sonny Haynes and Ethan Goemann of Womble Bond Dickinson in Greensboro could not be reached for comment by press time.
Follow Matt Chaney on Twitter @SCLWChaney