Snooping Employee Dooms Her Title VII Claims By Unauthorized Disclosure Of Personnel Files (US) Ms Melissa Legault

Author:Ms Melissa Legault
Profession:Squire Patton Boggs LLP

On November 15, 2018, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit unanimously held in Netter v. Barnes that an employee did not engage in “opposition or participation” activity protected by Title VII of the Civil Rights Act of 1964 when she reviewed and duplicated confidential personnel files without authorization. The plaintiff, an African-American Muslim woman, worked for the Guilford County (North Carolina) Sheriff's Office for over sixteen years with an unblemished record until she received a disciplinary sanction that barred her from being considered for a promotion. She filed charges with Guilford County Human Resources and the U.S. Equal Employment Opportunity Commission ("EEOC") alleging that the discipline was an act of race and/or religious discrimination because the Sheriff's Office had not disciplined other similarly situated officers who were neither African-American nor Muslim. When an investigator from the county HR department asked for evidence to support her discrimination claims, the plaintiff reviewed and copied - without permission - the confidential personnel files of five other employees, and turned those records over the investigator as well as to the EEOC.

Upon learning of the plaintiff's actions, the Sheriff's Office decided to terminate her employment because (1) she violated department policy, (2) she failed to conform to work standards established for her position, and (3) she violated N.C. Gen. Stat § 153A-98, which imposes criminal penalties for reviewing or disseminating county personnel files without approval. In turn, the plaintiff filed a new charge with the EEOC, arguing that her employment was terminated because she engaged in protected activity under Title VII, and eventually amended her existing Title VII discrimination complaint to include the new retaliation claim. The district court granted the Sheriff Office's summary judgment motion on all claims. On appeal to the Fourth Circuit, the only issue before the court was whether Title VII shielded the plaintiff's actions in copying the personnel records without obtaining authorization to do so.

Under Section 704(a) of Title VII, employees are protected against retaliation when they have reasonably opposed an unlawful employment practice or participated in any manner in an investigation or other proceeding. Before the Fourth Circuit, the plaintiff argued that her unauthorized review, duplication, and disclosure of confidential...

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