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Netter v. Guilford Cnty. Sheriff's Office, No. 18-1039 (4th Cir. Nov. 15, 2018)

The Fourth Circuit cautions employees (and their counsel) that taking actions to support an EEOC charge are not "protected activities" under the "participation" clause of Title VII's anti-retaliation section if they violate state law. Here, the court affirms summary judgment in a case where the employee copied and delivered confidential personnel files to the EEOC, in violation of North Carolina law.

Netter v. Guilford Cnty. Sheriff's Office, No. 18-1039 (4th Cir. Nov. 15, 2018): Ms. Netter had worked at the sheriff's office for nearly two decades. She filed an EEOC charge alleging that she had been denied an opportunity to test for a promotion due to a disciplinary citation. "She alleged that similarly situated officers, who were neither Black nor Muslim, had not been similarly disciplined."

To bolster her claim, "Netter reviewed, copied, and supplied the [EEOC] investigator with the confidential personnel files (which she maintained in a file cabinet in her shared office) of two subordinate employees whom she supervised at Greensboro Jail Central," as well as "files of three other employees who worked at the High Point Detention Center, which she obtained through a personal request to a coworker."

Ms. Netter was fired for disclosing the files, in part because it "violated state law - namely, N.C. Gen. Stat. § 153A-98, which imposes criminal penalties for reviewing or disseminating information in county personnel files without authorization." She filed a second EEOC charge alleging retaliatory discharge.

The district court granted summary judgment on Ms. Netter's race and religious discrimination claims, and the retaliation claim. She appealed only the latter of these.

The Fourth Circuit affirms. The "participation" clause broadly protects employees who have "participated in any manner in an [EEOC] investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). "[T]he participation clause offers ... capacious protection for conduct in connection with Title VII proceedings," which may include steps to "gather evidence for a bona fide Title VII claim."

Nevertheless, the line is drawn at unlawful surveillance:

"That said, we cannot conclude that Netter's unauthorized inspection and copying of the personnel files constituted protected participation activity for a straightforward reason. She violated a valid, generally-applicable state law. Netter does not meaningfully dispute that these actions, standing alone, violated N.C. Gen. Stat. § 153A- 98(f), which 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."

No supremacy clause issue is presented by this case because, the Fourth Circuit holds, federal and state law are not in opposition. "N.C. Gen. Stat. § 153A-98(f) has the valid and salutary purpose of protecting the personal information of current and former county employees across the state. It neither expressly contradicts Title VII's provisions nor meaningfully impedes a litigant's ability to pursue a Title VII claim."

Ms. Netter also argued that disclosure of the files also constituted "opposition" to discriminatory practices, under the "opposition" clause. But the panel summarily rejects this claim:

"Under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable .... Netter attempts to justify her conduct on the basis that she reasonably believed the county investigator had a right to access employee personnel files. Even if she is correct as to the disclosures, however, Netter's review of the files, which shelacked permission to access for this purpose, falls decidedly outside the scope of reasonable opposition."

This decision underscores the principle that any activity that can be characterized as a violation of state law may fall outside the category of "protected activities" under the Title VII anti-retaliation section. (Presumably, this would be no less true of violations of federal law.) So employees who contemplate removing any documents or data from an employer, or making audio recordings (which under some states' laws constitute illegal wiretapping), to support claims are advised to seek a lawyer's advice first. 

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