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Employee’s unauthorized review and disclosure of confidential personnel files not Title VII protected activity

By Ronald Miller, J.D.

An employee’s unauthorized review and disclosure of confidential personnel files to support her claims of race and religious discrimination was not protected activity under Title VII, ruled the Fourth Circuit, concluding that the statute did not protect “illegal actions.” In this instance, the employee did not meaningfully dispute that her actions violated a state law that prohibits “knowingly, and willfully examining…, removing, or copying any portion of a confidential personnel file” without authorized access (Netter v. Barnes, November 15, 2018, Motz, D.).

The employee, a Black and Muslim woman, worked for the sheriff’s office for approximately 19 years, most recently as a detention services supervisor. For more than 16 years, she compiled an unblemished disciplinary record. However, in April 2014, she received a disciplinary sanction that barred her from testing for a promotion. She filed timely complaints with the sheriff’s office and EEOC alleging that similarly situated officers, who were neither Black nor Muslim, had not been similarly disciplined.

Disclosure of confidential personnel files. In following up with her complaint, an investigator for the county HR office asked the employee if she had evidence to support her discrimination claims. In response, the employee reviewed, copied, and supplied the investigator with confidential personnel files that were stored in a file cabinet in her shared office. She also provided the investigator with the personnel files of three other employees who worked at another detention facility.

The employee acknowledges that she knew that the files were confidential but nonetheless did not seek permission from the five employees or her own supervisors to copy and disclose them. Additionally, she gave copies of all five files to the EEOC and the lawyer representing her in this suit. During discovery, her attorney provided copies of the files to the sheriff. This led the sheriff’s attorney to inquire how the employee obtained the files. The employee admitted she copied them.

Discharge. As a consequence, a professional standards officer in the sheriff’s office recommended that the employee be terminated on three grounds: (1) she violated department policy restricting the unauthorized review, duplication, and dissemination of those records; (2) she failed to conform to the work standards of her position; and (3) she violated N.C. Gen Stat. § 153A-98, a state law which imposes criminal penalties for reviewing and disseminating information in county personnel files without authorization. The sheriff upheld the recommendation and discharged the employee.

The employee filed a new charge with the EEOC, contending that the sheriff fired her for engaging in activity protected under Title VII. However, the district court granted the employer’s motion for summary judgment against all of the employee’s claims. On appeal, she challenged only that portion of the order dismissing her retaliation claim.

Retaliation claim. Section 704(a) of Title VII expressly prohibits retaliation by an employer against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Section 704(a) shields from retaliation two categories of activity: participation and opposition. For participation and opposition claims, the plaintiff bears the burden of establishing that unlawful retaliation “would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

Because the parties did not dispute the facts, the sole issue before the court was whether Title VII protects the employee’s conduct against retaliation. The employee principally argued that her entire course of conduct constituted protected “participation” activity under the anti-retaliation protections of Title VII. Alternatively, she asserted that her review and disclosure of files to the HR investigator constituted protected “opposition” activity.

Opposition clause. Quickly disposing of the employee’s “opposition” argument, the Fourth Circuit concluded that under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable. The appeals court rejected the employee’s attempt to justify her conduct on the basis that she reasonably believed that the investigator had a right to access employee personnel files. Even if she was correct as to the disclosures, her review of the files, for which she lacked permission to access for this purpose, fell outside the scope of reasonable opposition.

Participation clause. The participation clause offers more capacious protection for conduct in connection with Title VII proceedings, the appeals court noted, observing that application of the participation clause must account for the evidentiary difficulties many plaintiffs face when pressing claims of workplace discrimination. Still, the court declined to find that the employee’s unauthorized inspection and copying of the personnel files constituted protected participation activity, because in this instance, she violated a valid, generally applicable state law.

The employee did not meaningfully dispute that her actions, standing alone, violated N.C. Gen Stat. § 153A-98(f), which establishes a Class 3 misdemeanor for “knowingly, and willfully examining…, removing, or copying any portion of a confidential personnel file” without authorized access. As with an opposition clause case, “illegal actions” do not constitute “protected activity under Title VII.”

Finding that the employee’s unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity, the appeals court affirmed the judgment of the district court.