Why it matters

Title VII doesn’t protect illegal actions, the U.S. Court of Appeals for the Fourth Circuit held, affirming summary judgment for an employer where the employee ran afoul of state law. A sheriff’s office employee for almost 19 years, Catherine Netter worked for 16 of those years with an unblemished disciplinary record. However, in 2014 she received a disciplinary sanction that prohibited her from applying for a promotion. She objected, arguing that similarly situated employees who were not African-American or Muslim had not received such sanctions. As part of an investigation into her complaint, a human resources worker asked whether Netter had evidence to support her claim. In response, she reviewed, copied and supplied the investigator with confidential personnel files. When the employer learned what she had done, Netter was fired. She filed suit under Title VII, arguing that she was terminated for engaging in protected activity. The federal appellate panel disagreed. Netter did not dispute that her actions violated state law, and the federal statute does not protect illegal actions, the Fourth Circuit said.

Detailed discussion

Catherine Netter, a Muslim, African-American woman, began working for the Guilford County sheriff’s department in 1998. She compiled an unblemished disciplinary record until April 2014, when she received a disciplinary sanction that barred her from testing for a promotion.

She filed complaints with both the human resources (HR) department and the Equal Employment Opportunity Commission (EEOC), alleging that similarly situated employees, who were neither African-American nor Muslim, had not been similarly disciplined.

Following up on Netter’s complaint, an HR investigator asked if she had evidence to support her discrimination claims. In response, Netter reviewed, copied and supplied the investigator with the confidential personnel files of five other employees. She did not seek permission from those employees or her own supervisors to copy and disclose the files.

Netter also provided the files to the EEOC and her lawyer, as she had filed a Title VII lawsuit against her employer. In response to a pretrial discovery request, Netter’s counsel provided copies of the files to the sheriff’s office, which led to the employer asking how they were obtained. Netter admitted her actions.

A professional standards officer in the sheriff’s office then recommended Netter be terminated based on her violation of both state law and department policy. She was fired, and Netter filed a new EEOC charge based on retaliation and amended her lawsuit.

The sheriff’s office moved for summary judgment. A district court judge granted the motion, and the U.S. Court of Appeals for the Fourth Circuit affirmed.

Netter told the court that her entire course of conduct constituted protected “participation” activity under the anti-retaliation provisions of Title VII. While the court acknowledged that the participation clause offers more capacious protection for conduct in connection with Title VII proceedings than the opposition clause, it found Netter’s actions still fell outside the bounds of protection.

“[W]e cannot conclude that Netter’s unauthorized inspection and copying of the personnel files constituted protected participation activity for a straightforward reason,” the panel explained. “She violated a valid, generally applicable state law.”

North Carolina General Statutes section 153A-98(f) establishes a Class 3 misdemeanor for “knowingly and willfully examin[ing] …, remov[ing], or copy[ing] any portion of a confidential personnel file” without authorized access.

It may be difficult for an employee to provide evidence in support of Title VII claims, the Fourth Circuit recognized, but illegal actions do not constitute protected activity under the statute. The North Carolina state law does not conflict with the federal statute, as it does not meaningfully impede a litigant’s ability to pursue a Title VII claim, the court noted.

“Indeed, in this case, Netter had access to—and utilized—civil discovery procedures without any demonstrated need to unlawfully review or copy confidential personnel information,” the panel wrote. “Accordingly, we hold that Netter’s unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity. Therefore, Netter cannot prevail.”

The court declined to adopt the employer’s broader argument that any disclosure of information in violation of an employer’s confidentiality policy falls beyond the scope of participation clause protection.

To read the opinion in Netter v. Barnes, click here.