Catherine D. Netter v. Sheriff BJ Barnes , 908 F.3d 932 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1039
CATHERINE D. NETTER, an individual,
Plaintiff - Appellant,
v.
SHERIFF BJ BARNES, in his official and individual capacity,
Defendant - Appellee,
and
GUILFORD COUNTY SHERIFF’S OFFICE, a North Carolina public entity,
Defendant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cv-00843-CCE-JEP)
Argued: October 10, 2018 Decided: November 15, 2018
Before GREGORY, Chief Judge, MOTZ and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Chief Judge
Gregory and Judge Diaz joined.
ARGUED: Wilson Frank Fong, HENSEL LAW, PLLC, Greensboro, North Carolina,
for Appellant. James Marion Powell, WOMBLE BOND DICKINSON (US) LLP,
Greensboro, North Carolina, for Appellee. ON BRIEF: Craig Hensel, HENSEL LAW,
PLLC, Greensboro, North Carolina, for Appellant. Sonny S. Haynes, Ethan C. Goemann,
WOMBLE BOND DICKINSON (US) LLP, Greensboro, North Carolina, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
Catherine D. Netter brings this appeal, arguing that her unauthorized review and
disclosure of confidential personnel files to support her racial and religious
discrimination claims constituted protected activity under Title VII. Netter contends that
the district court erred in rejecting her argument and granting summary judgment to her
employer. For the reasons that follow, we affirm.
I.
Netter, a Black and Muslim woman, worked for the Guilford County Sheriff’s
Office for approximately nineteen years, most recently as a detention services supervisor.
For more than sixteen years, Netter compiled an unblemished disciplinary record. That
changed in April 2014, when she received a disciplinary sanction that barred her from
testing for a promotion. Netter filed timely complaints with Guilford County Human
Resources and the Equal Employment Opportunity Commission. She alleged that
similarly situated officers, who were neither Black nor Muslim, had not been similarly
disciplined.
Following up on Netter’s complaint, an investigator from the county Human
Resources office asked her if she had evidence to support her discrimination claims. In
response, Netter reviewed, copied, and supplied the 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. Netter also
provided the investigator with the personnel files of three other employees who worked at
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the High Point Detention Center, which she obtained through a personal request to a co-
worker. Netter acknowledges that she knew the files were confidential but nonetheless
did not seek permission from the five employees or her own supervisors to copy and
disclose them.
Netter additionally gave copies of all five files to the Equal Employment
Opportunity Commission and the lawyer representing her in this suit. In response to a
pretrial discovery request, Netter’s counsel provided copies of the files to defendant BJ
Barnes, the Sheriff of Guilford County. This led the Sheriff’s attorneys to inquire how
Netter obtained the files. In deposition testimony, Netter admitted that she had acted as
outlined above.
On these facts, a professional standards officer in the Sheriff’s office
recommended Netter’s termination on three grounds. First, the officer concluded that
Netter violated department policy restricting the unauthorized review, duplication, and
dissemination of these records. Second, he believed that she failed to conform to the
work standards established for her position. Third, he asserted that Netter had 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,
subject to exceptions inapplicable here. Netter appealed to Sheriff Barnes, who upheld
the recommendation and discharged her.
Netter filed a new charge with the EEOC, contending that the Sheriff fired her for
engaging in activity protected under Title VII. When the EEOC dismissed the charge, the
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parties agreed to allow Netter to supplement her existing Title VII discrimination
complaint with the new retaliation claim.
After discovery concluded, the district court granted summary judgment to Sheriff
Barnes on all claims, including Netter’s allegations of discrimination and her claims of
retaliation. Netter timely filed this appeal, in which she challenges only the portion of the
district court’s order that concerns her retaliation claim.
II.
Title VII of the Civil Rights Act of 1964 bars employers from discriminating on
the basis of “race, color, religion, sex, or national origin.” Pub. L. No. 88–352, § 703, 78
Stat. 241, 255 (1964) (codified as amended at 42 U.S.C. § 2000e–2(a)). Section 704(a)
of the Act 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.” 42 U.S.C. § 2000e–3(a)
(codified as amended). 1
This antiretaliation provision has the critical purpose of maintaining “unfettered
access” to Title VII’s “statutory remedial mechanisms” for addressing discrimination.
1
Netter also presses an antiretaliation claim under 42 U.S.C. §§ 1981 and 1983.
See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008) (interpreting § 1981 to
encompass retaliation claims). Because § 1981 “affords no greater substantive protection
than Title VII” in the circumstances here, our analysis of Netter’s claim “also disposes of
the § 1981 claim.” N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 583 n.24 (1979).
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Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Because “Title VII depends for its
enforcement upon the cooperation of employees,” the Supreme Court has held that the
scope of protected activity under § 704(a) should be interpreted broadly to “ensure the
cooperation upon which accomplishment of the Act’s primary objective depends.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
Section 704(a) shields from retaliation two categories of activity: participation
and opposition. The statute’s participation clause provides absolute protection to a
limited range of conduct. It protects “participat[ion] in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Given the clear
directive inherent in the phrase “in any manner,” the clause protects participation
activities even when they are plainly “unreasonable” or “irrelevant.” Glover v. S.C. Law
Enf’t Div., 170 F.3d 411, 414 (4th Cir. 1999); see also Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 259 n.4 (4th Cir. 1998) (noting that the participation clause provides
“broader” protection than the opposition clause because “[a]ctivities under the
participation clause are essential to the machinery set up by Title VII” (internal quotation
marks omitted)).
Section 704(a) additionally bars retaliation for “oppos[ition] [to] any practice
made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e–3(a).
This clause provides qualified protection to a wide range of conduct. See, e.g., Crawford
v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 277–78 (2009) (holding that
protected opposition activity need not be “active” or “consistent”). In contrast to the
participation clause, the opposition clause contains no limitation to proceedings “under
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this subchapter.” But the opposition clause also lacks the participation clause’s express
protection for “any manner” of conduct. Instead, for an employee’s activity to constitute
protected “opposition,” she must show (1) that she reasonably believed that the
employment action she opposed constituted a Title VII violation, Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc), and (2) that her
conduct in opposition was reasonable, see Laughlin, 149 F.3d at 259–60.
For both 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.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013). This but-for causation requirement is stricter than the
“lessened causation standard” for discrimination claims, id., under which a plaintiff need
only show that “race, color, religion, sex, or national origin was a motivating factor” for
an adverse action by an employer, 42 U.S.C. § 2000e–2(m).
Finally, when pursuing any claim under Title VII, a plaintiff can prove her case
either “through direct and indirect evidence of retaliatory animus,” or through a burden-
shifting “pretext” framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th
Cir. 2015). In the context of a retaliatory discharge, this means an employee may
proceed by showing directly that she was fired in retaliation for protected activity, or by
proving that any non-retaliatory justification for the firing was pretextual. The choice is
“left to the plaintiff’s discretion.” Id.
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III.
With these principles in mind, we turn to the case at hand. Notwithstanding the
Sheriff’s apparent belief that Netter pursues a pretext claim, Netter has opted to proceed
on a direct-evidence theory. 2 Because the parties do not dispute the facts, the sole issue
before us is whether Title VII protects Netter’s conduct against retaliation. Netter
principally argues that her entire course of conduct constituted protected “participation”
activity under the antiretaliation protections of Title VII and related statutes.
Alternatively, she asserts that her review and disclosure of files to the county Human
Resources investigator constituted protected “opposition” activity.
We can quickly dispose of Netter’s alternative argument. Under the opposition
clause, unauthorized disclosures of confidential information to third parties are generally
unreasonable. See, e.g., Laughlin, 149 F.3d at 260 (“easily conclud[ing]” under
opposition clause that “employer’s interest in maintaining security and confidentiality of
sensitive personnel documents outweigh[ed]” employee’s interest in providing them to
former co-worker); Jefferies v. Harris Cty. Comm. Action Ass’n, 615 F.2d 1025, 1036–37
(5th Cir. 1980) (holding disclosure of personnel records and agency documents
unprotected as opposition in light of employer’s “legitimate and substantial interest” in
confidentiality). 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 she
2
We note that the outcome of this case does not turn on whether Netter relied on
burden-shifting or direct evidence.
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lacked permission to access for this purpose, falls decidedly outside the scope of
reasonable opposition. We are loath “to provide employees an incentive to rifle through
confidential files looking for evidence.” O’Day v. McDonnell Douglas Helicopter Co.,
79 F.3d 756, 763 (9th Cir. 1996) (analyzing analogous Age Discrimination in
Employment Act provision).
However, the participation clause offers more capacious protection for conduct in
connection with Title VII proceedings. Application of the participation clause must
account for the evidentiary difficulties many plaintiffs face when pressing claims of
workplace discrimination. Absent unusual evidence of overt animus, a plaintiff seeking
to prove unlawful discrimination in employment will generally need to produce evidence
of comparators, or similarly-situated employees of a different race, color, religion, sex, or
national origin who have been treated differently.
Because salaries, disciplinary infractions, and the like often remain confidential, it
may be difficult for an employee to realize — let alone prove — that such evidence
exists. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 (2007)
(Ginsburg, J., dissenting) (noting that because pay disparities can accrue in “small
increments” “often hidden from the employee’s view,” “cause to suspect that
discrimination is at work develops only over time”), superseded by statute, Lily Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5 (2009). Even after an employee
suspects discrimination, her uncertainty and her employer’s power over her livelihood
may discourage her from “making waves” until “the disparity becomes apparent and
sizable.” Id.
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Of course, once an employee recognizes potential discrimination and files a charge
with the Equal Employment Opportunity Commission, the agency may investigate the
claim and issue subpoenas. See, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 63–64 (1984)
(outlining EEOC’s investigatory powers, including “authority to issue administrative
subpoenas and to request judicial enforcement of those subpoenas”) (citing 42 U.S.C.
§§ 2000e–8(a), 2000e–9). But an employee has no power to subpoena evidence herself,
nor to review the evidence that the EEOC gathers. If the EEOC dismisses the charge and
the employee files a civil suit stating a valid claim for relief, the employee may gather
evidence through civil discovery mechanisms — but still, the employee must know what
to request. We therefore will not read the participation clause so narrowly as to
improperly limit an employee’s ability to gather evidence for a bona fide Title VII claim.
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. We have already held in an opposition clause case that “illegal
actions” do not constitute “protected activity under Title VII.” Laughlin, 149 F.3d at 259
n.3. That is also true for participation clause claims.
Netter responds that under the Supremacy Clause, even illegal activities can be
protected if the relevant state law conflicts with Title VII. See U.S. Const. art. VI, cl. 2;
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see also Arizona v. United States, 567 U.S. 387, 398–400 (2012) (summarizing express,
field, and conflict preemption). But this argument presupposes the existence of a conflict
between state and federal law, and we see none here.
A state law that expressly or effectively criminalized filing an EEOC charge or
pursuing a Title VII suit would undoubtedly be preempted as an obstacle to the
enforcement of Title VII. But that is not the law at issue. 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.
Indeed, in this case, Netter had access to — and utilized — civil discovery procedures
without any demonstrated need to unlawfully review or copy confidential personnel
information.
Accordingly, we hold that Netter’s unauthorized review and duplication of
confidential personnel files did not constitute protected opposition or participation
activity. Therefore, Netter cannot prevail. For us to reverse, Netter would have to
persuade us that “unlawful retaliation would not have occurred in the absence of the
alleged wrongful action . . . of the employer.” Nassar, 570 U.S. at 360. But Sheriff
Barnes and his officers expressly and extensively cited Netter’s violations of N.C. Gen.
Stat. § 153A–98(f) in justifying her discharge. Even assuming the other stated grounds
for her discharge are invalid, Netter has not established that she would have remained
employed in their absence. To the contrary, the record establishes that Sheriff Barnes
would have terminated her solely on the basis of her violation of state law.
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IV.
The Sheriff urges us to rule more broadly. He asks us to hold that any disclosure
of information in violation of an employer’s confidentiality policy falls beyond the scope
of the participation clause. This assertedly would be the rule even if the employee had
permission to access the information, disclosed it only to the Equal Employment
Opportunity Commission in connection with a Title VII proceeding, and did not violate
valid state law. Perhaps implicitly recognizing that providing evidence in an EEOC
investigation seems like quintessential “participation” activity, Sheriff Barnes offers two
arguments in support of his preferred result.
First, the Sheriff cites the Sixth Circuit’s holding that although the “analysis of a
participation claim does not generally require a finding of reasonableness, . . . when
confidential information is at issue, a reasonableness requirement is appropriate.”
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 726 (6th Cir. 2008). Second, the Sheriff
points to our reasoning in Glover that conduct “related to protected activity” but “distinct
and separable from that activity” remains a valid basis for discipline. 170 F.3d at 415.
The Sheriff then relies on a case in which the Tenth Circuit stretched this principle to
hold that while disclosure of records to the EEOC constituted protected participation
activity, the resultant violation of the employer’s confidentiality policy nevertheless
constituted a legitimate, non-retaliatory basis for termination. Vaughn v. Epworth Villa,
537 F.3d 1147, 1152–53 (10th Cir. 2008).
We believe Glover properly counsels against both of these approaches. As we
carefully explained in that case, the phrase “in any manner” clearly forecloses any
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reasonableness requirement for participation claims. Glover, 170 F.3d at 414. The
statutory text remains unchanged today, and we see no basis to create a blanket exception
to the Glover analysis for cases that happen to implicate employer confidentiality
policies. Similarly, the underlying act of disclosing evidence to the EEOC and the
employer policy violation that such an act may trigger are “so inextricably related” that
following the Tenth Circuit and separating the two would, as we explained in Glover,
“slice things much too thinly.” Id. at 415 (internal quotation omitted). Both broad rules
suggested by the Sheriff risk eroding the protection afforded by the participation clause,
thereby threatening the full employee cooperation on which Title VII depends. 3
We hold only, as we did in Laughlin, that § 704(a) does not protect a violation of a
valid state law that poses no conflict with Title VII. Like Laughlin’s opposition claim,
Netter’s participation claim fails: she has not met her burden of proving that Sheriff
Barnes terminated her employment because she engaged in protected activity.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
3
For similar reasons, it is neither necessary nor prudent to decide in this case
whether N.C. Gen. Stat. § 153A–98(e), a provision that criminalizes the disclosure of
confidential information generally, can validly be applied to prohibit a claimant from
disclosing evidence in confidence to the EEOC in light of the participation clause.
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