Protected Activity: How Far Can an Employee Go to Collect Evidence?

The Fourth Circuit recently explored the contours of what constitutes “protected activity” under Title VII (and by implication other similar civil rights laws). The employee argued that her unauthorized review, copying and disclosure of confidential personnel files in order to gain support for her race and religious discrimination claims constituted a protected activity under Title VII.  The Fourth Circuit disagreed.[1]

The employee, a black Muslim woman, worked for the local Sheriff for a number of years with an unblemished disciplinary record until she received a disciplinary sanction which barred her from testing for a promotion. She filed an EEOC Charge alleging that similarly situated officers who were neither black nor Muslim had not been disciplined for the same conduct. To support her claim, she reviewed, copied, and supplied the local HR investigator with two confidential personnel files she retrieved from the file cabinet in the office where she worked. She also obtained the personnel files of three other employees who worked at an adjacent facility which she obtained through a request to a co-worker. She did not, however, seek permission from any of the five employees or her own supervisor to copy and disclose the records. Copies of these materials were later given to the EEOC and her lawyer.

Once discovery began in her Title VII case, the Sheriff’s attorney inquired during her deposition as to how she obtained the records. Based on her deposition testimony, the Sheriff concluded that she violated not only department policy restricting the unauthorized review, duplication and dissemination of personnel records but also violated a state law that protected the personnel files of local and state government employees. In a bold move, the Sheriff then discharged the employee while the case was still pending. Soon after, she filed a new EEOC charge alleging retaliation, which was added to the pending case. After all discovery concluded, the district court granted summary judgment on all claims.

Noting the Supreme Court’s directive to give a broad scope to what constitutes protected activity under Title VII, the Fourth Circuit noted this case required an analysis under both the participation and opposition provision. The participation clause provides absolute protection to a limited range of conduct. In contrast, the opposition clause covers a much broader range of conduct, but it only provides a qualified level of protection, which requires a showing of reasonableness.

The employee argued that her entire course of conduct constituted protected participation activity, and in the alternative, she suggested that her review, copying, and disclosure of the personnel files constituted protected opposition activity. The court quickly disposed of the alternative argument, noting that the unauthorized disclosure of confidential information to third parties is generally unreasonable.[2]  The employee attempted to argue that it was reasonable for her to believe that the County’s HR investigator had the right to access the employee personnel files. However, the court noted “we are loathe to provide employees an incentive to rifle through confidential files looking for evidence,” and even if the investigator had a right to files, she had no right to review their contents.

In reviewing the participation clause argument, the court observed the protection seeks to account for the evidentiary difficulties plaintiffs often face when pursuing workplace discrimination claims. It is often true that salaries, disciplinary infractions and other similar evidence remains confidential, which may cause difficulty for an employee to realize – let alone prove – that such evidence exists.[3]  In light of these realities, the Fourth Circuit declined to read the participation clause so narrowly as to eliminate an employee’s ability to gather evidence for a bona fide Title VII claim. However, it drew the line in this case because this employee’s unauthorized inspection and copying of the personnel files of a local government agency constituted a violation of a valid, generally applicable state law.[4]  There is nothing about the North Carolina statute that contradicts Title VII’s provisions or meaningfully impairs anyone’s ability to pursue a Title VII claim.

The Court, however, declined to go further and hold, as urged by the Sheriff, that any disclosure of information in violation of an employer’s internal confidentiality policies falls beyond the scope of protection provided by the participation clause. The Sheriff argued that while disclosure of records to the EEOC can constitute protected participation activity if doing so results in a violation of the employee’s confidentiality policy, the employer should have a legitimate, nondiscriminatory basis for termination. The Court disagreed. It noted that the underlying act of disclosing evidence to the EEOC and a violation of an employer’s policy, are “so inextricably related” that separating the two for retaliation purposes is too difficult. Accordingly, the Fourth Circuit declined to embrace the proposed rule suggested by the Sheriff.

In summary, this case clarifies, but does not change the law as to what constitutes “protected activity” when an employee takes company records and gives them to the EEOC. If those actions violate a neutral state law (e.g. unauthorized computer trespass) then it is now likely that the Court will not consider such unlawful behavior to be “protected activity.” On the other hand, if the copying and dissemination violates a private company’s confidentiality policies (but not a state law), it is likely that this “improper” activity will continue to be considered “protected activity.” With the number of retaliation and whistleblower claims on the rise, employers need to stay abreast of changes in the law in this area. For assistance with access disciplinary action or representation in defense of whistleblower and/or retaliation claims, contact the members of the Gentry Locke Employment Law team.

[1] Netter v. Barnes, No. 18-1039, 2018 U.S. App. LEXIS 32358 (4th Cir. Nov. 15, 2018).

[2] Laughlin v. Metro Wash. Airports Auth., 149 F.3d 253, 260 n. 4 (4th Cir. 1998) (Under the opposition clause, the employer’s interest in maintaining security and confidentiality of sensitive personnel documents outweighs the employee’s interest in providing them to former co-workers.)

[3] The Court notes that employees have no subpoena power and also have no right to access or obtain copies of documents the EEOC subpoenas from employers as part of its investigation, until after the Charge is dismissed.

[4] The North Carolina law in question made it a Class III misdemeanor to knowingly and willfully examine, remove or copy any portion of a confidential personnel file held by a local or state government agency without authorized access.

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