Employees are not permitted to misappropriate confidential information in support of their discrimination claims.
January 1, 2019
On November 15, 2018, the United States Court of Appeals for the Fourth Circuit affirmed the district court’s grant of summary judgment to an employer who had terminated an employee following her unauthorized review and disclosure of confidential personnel files. In Netter v. Barnes, the Fourth Circuit held that Title VII does not protect a terminated employee who violated a valid state law. You can read the full opinion here.
The employee, a black and Muslim woman, worked for the Guilford County (North Carolina) Sheriff’s Office for nearly 20 years. She did not have a disciplinary record for the first 16, but in 2014 received a disciplinary sanction that prohibited her from testing for a promotion. The employee then filed a complaint with the Guilford County Human Resources Department and the Equal Employment Opportunity Commission (“EEOC”). As a part of her complaint, she alleged that similarly situated officers, who were neither black nor Muslim, had not been similarly disciplined.
In response to this complaint, the investigator from the county HRR Department asked the employee if she had any evidence to support her claims. The employee then reviewed, copied, and disclosed to the investigator confidential personnel files of two subordinate employees—whom she supervised—and three other employees, which she received from a co-worker. She additionally supplied the EEOC with the personnel files. She was not authorized nor did she receive permission from the employees to review the files.
The files were then provided to the defendant Sheriff’s Office as a part of a discovery request. Naturally, the Sheriff’s attorneys inquired as to how the employee had received the files, and in deposition, the employee admitted to the previously described actions. On those facts, the employee was then terminated for three reasons: (1) the employee violated department policy restricting the unauthorized review, duplication, and disclosure of the files; (2) the employee failed to conform to the work standards of her positions; and (3) the employee violated N.C. Gen. Stat. § 153A-98, which protects county personnel files, subject to some exceptions.
The employee then filed a new claim with the EEOC claiming that the Sheriff had terminated her employment for engaging in protected activity under Title VII of the Civil Rights Act (the “Act”). The EEOC dismissed her charge, and the parties agreed to allow her to supplement her existing discrimination complaint. Section 704(a) of the Act prohibits retaliation by an employer “because [the employee] has opposed any practice made an unlawful employment practice . . . or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The district court granted the Sheriff summary judgment at the conclusion of discovery.
On appeal, the employee argued that her actions constitute “participation” activity under Title VII. The Fourth Circuit, however, rejected this claim, though it recognized that employees seeking to prove unlawful discrimination will need to produce evidence of comparators. Despite the need for employees to produce evidence, the Fourth Circuit stated that it is “loath to provide employees an incentive to rifle through confidential files looking for evidence.” (internal quotation marks omitted).
Rather, the Fourth Circuit emphasized that once an employee recognizes potential discrimination and files a charge with the EEOC, the EEOC then has the power to investigate the claim and subpoena records. Even if the EEOC dismiss the charge, an employee would then be able to file a civil suit and proceed to gather evidence through discovery. This does not give the employee license to “rifle through confidential files looking for evidence,” but rather allows them to proceed through discovery upon the filing of a valid complaint. Moreover, the employee in this case violated a valid state law, which the Fourth Circuit held does not fall within the scope of protected activity under Title VII. In order for the Fourth Circuit to reverse, the employee would have had to show that the retaliation would have occurred absent the alleged wrongful action. Here, the Sheriff’s termination of her employment relied “expressly and extensively” on the employee’s violation of N.C. Gen. Stat. § 153A-98, and the employee could not show that she would have remained employed based on her violation of the law.