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Removing Personnel Files is Not Protected Activity

Catherine Netter worked for the Sheriff’s Office in Guilford County, N.C. An African-American Muslim woman, she was employed for sixteen years by the Sheriff. When she received a disciplinary sanction late in her employment that prevented her from being considered for a promotion, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). She alleged race and/or religious discrimination. A county investigator requested that she provide evidence to support her assertion that non-African American and non-Muslim similarly situated employees were not subjected to disciplinary action. Ms. Netter reviewed and copied the personnel files of five other employees and provided those records to the EEOC and a county investigator.
The Sheriff’s office fired her because she violated company policy and violated a statute that imposes criminal penalties for county employees that disseminate personnel files without approval. Ms. Netter responded with a new Charge of Discrimination alleging retaliation. After the action was dismissed, Ms. Netter appealed just the retaliation claim.
The Fourth Circuit Court of Appeals reviewed the case and agreed with the dismissal of her claim. Under Title VII, employees that have a) reasonably opposed an unlawful employment practice or b) participated in any manner in an investigation are protected from retaliation. Ms. Netter argued that copying the personnel files qualified as protected conduct under both categories. The circuit court disagreed, first finding that the “unauthorized disclosures of confidential information to third parties are generally unreasonable” under the opposition clause. Because her conduct violated a state law, it did not qualify as a protected participation in an investigation either. The EEOC during its investigation or her attorneys during the lawsuit could have subpoenaed the information but she did not have the authority to simply take the records. Although the Sheriff argued for it, the court expressly declined to make a broad holding that any disclosure of information in violation of an employer’s confidentiality policy falls beyond the scope of the participation clause.