- Articles
- Published Dec 2018
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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Case Studies
October 2018
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While its name may suggest it is a vestige of Virginia’s legal history, a motion craving oyer remains a powerful, but limited tool in Virginia practice. When a plaintiff sues based on a written contract or other document but fails to attach it to his complaint, a defendant should consider “craving oyer” of the document. “[A] motion to crave oyer is a request of the Court to require that a document sued upon, or a collateral document which is necessary to the Plaintiff’s claim, be treated as though it were part of the Plaintiff’s pleadings.” Ragone v. Waldvogel, Poe and […]
Using Sworn Testimony in Support of a Motion for Summary Judgement in Virginia Circuit Courts One of the biggest distinctions between federal practice and Virginia practice is that, in Virginia practice, summary judgment cannot be based upon deposition testimony. However, that doesn’t necessarily mean that all previously given sworn testimony is off-limits. Rule 3:20 of the Rules of the Supreme Court of Virginia states, in part: No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall […]
On May 30, 2018 two Gentry Locke partners will present a CLE to Virginia CLE attendees at Virginia CLE’s Charlottesville, Virginia headquarters. Michael J. Finney and Alicha Grubb will present alongside an attorney from a Charlottesville firm, Jonathan T. Blank. The event website page describes the session thusly: Our experienced speakers will address this complex issue from both the plaintiff’s and the defendant’s point of view, highlighting the issues at stake and sharing practical tips to assist your representation of your client’s interests. Among the issues they will address are: How strong is the presumption of the corporate veil? What can a […]
Gentry Locke employment law partner Todd Leeson recently published an important article for business executives. The article was inspired by contrasting images of women in an upscale steakhouse. Todd implores executives to take action to ensure a culture of respect in the workplace. Read the formatted PDF of the article Reprinted with permission from the April 27, 2018 edition of CorporateCounsel© 2018 ALM Media Properties, LLC. All rights reserved. Picture an upscale steakhouse in a bustling downtown of a mid-size southern city—a swanky joint where every night hundreds of patrons happily pay $50+ for a delicious steak, and $15 for […]
ROANOKE, Va. (May 4, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that it has been awarded “Best Law Firm – Platinum” within The Roanoker magazine’s 2018 “Best of Roanoke” reader poll. The platinum award is the highest honor in each category. Gentry Locke was also named “Best Law Firm – Platinum” in the 2017 “Best of Roanoke.” The Roanoker’s “Best of Roanoke” poll tabulates more than 68,000 reader votes in more than 150 categories. The 2018 “Best of” issue, which marks the 31st annual poll, published on May 4. The Roanoker is the longest continuously […]
ROANOKE: MAY 10 – Full The Hotel Roanoke & Conference Center LYNCHBURG: MAY 14 The Craddock Terry Hotel and Event Center Human Resources is buzzing along at the speed of NOW. Is your company able to keep up? Gentry Locke’s Employment Law Team will help your company be prepared for and inoculated against some of the most potent viral movements we’ve ever seen. Register now to learn about the most click-worthy issues affecting businesses this year! Registration is open for Lynchburg (May 14) Professional Credits: As a SHRM Recertification Provider, Gentry Locke is recognized by SHRM to offer 6.5 hours […]
ROANOKE, Va. (April 23, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Powell M. “Nick” Leitch, III has joined as a partner in Gentry Locke’s Medical Malpractice practice group. He previously served as a partner at LeClairRyan. “We have an enormous amount of respect for Nick, and are so pleased that he will bring such a wealth of experience to our medical malpractice team,” said Gentry Locke Managing Partner Monica Taylor Monday. “We welcome him to our firm and look forward to further servicing our clients with him aboard.” “Gentry Locke is an esteemed […]
Gentry Locke attorneys Ben Byrd and Nick Leitch will present a seminar to Virginia Tech/Carilion School of Medicine’s 4th-year students on Monday, April 30 at the Riverside complex in Roanoke. The “Law and Medicine: Physicians in the Courtroom” course will deal with the various ways in which the lives of these physicians can intersect with the legal system throughout their careers, both in terms of being witness-advocates for their patients, as well as expert witnesses and/or witnesses on their behalf in medical litigation. Attorneys Byrd and Leitch will be joined by Professor Tim MacDonnell of Washington & Lee School of […]
ROANOKE, Va. (April 17, 2018) – Gentry Locke is pleased to announce that 28 of the firm’s attorneys were selected for inclusion in the 2018 Virginia Super Lawyers® list, a national legal ranking. Attorneys were nominated by their peers and recognized for their outstanding professional achievement in several legal practice areas, including civil litigation, appellate law, criminal defense, business litigation, business/corporate law, construction litigation, land use and zoning, employment & labor law and litigation, personal injury, professional liability, and tax law. Of those selected, 18 of the firm’s attorneys from the Roanoke and Lynchburg offices were named as Virginia Super […]
ROANOKE, Va. (April 11, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Retired Partner J. Rudy Austin has been selected as the 2018 recipient of the Roanoke Bar Association (RBA) Frank W. “Bo” Rogers, Jr., Lifetime Achievement Award. Austin will be formally presented with the award at the RBA Law Day Luncheon on May 1. “This is a tremendous honor that recognizes Rudy’s remarkable career, and sustained contributions to the profession and the bar,” said Gentry Locke Managing Partner Monica Taylor Monday. “Rudy is a model lawyer who has upheld the highest ideals […]
The Virginia Bar Association will hold its summer program at the Homestead Resort in Hot Springs, Virginia, where on July 20, 2018, Gentry Locke Partner Charles L. Williams will appear on a panel discussing coal ash issues. As head of the Environmental Law Group at Gentry Locke, Charlie Williams has abundant experience in such matters. His role as a negotiator for the City of Danville after a coal ash spill polluted the Dan River in 2014 makes him particularly suited to present on the topic. Attorneys from all over Virginia will converge and will receive CLE credit for their attendance.
On April 3, 2018, Gentry Locke Partner Brett Marston was a panelist on a webinar provided by ALFA International, the international legal network Gentry Locke has been a member of since 1988. The webinar helped construction industry professionals gain an understanding of the changes in the April, 2017 updated AIA contract forms, which must be adopted into use by October 31, 2018. These contract forms include the standard forms of agreement between owner and contractor and owner and architect, as well as the A201 General Conditions. The panelists included two other Construction Law attorneys from ALFA International affiliated law firms in Tennessee and Ohio. […]
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Defendant Campbell County Circuit Court Gentry Locke attorneys Kevin Holt, Amanda Morgan and Glenn Pulley represented a crane, rigging and erection service company in a breach of contract and quantum meruit case. The plaintiff, a former company vice president, alleged that our client breached a 1994 Split Dollar Life Insurance Agreement that involved $500,000 in life insurance coverage, plus the payment of monthly post-retirement benefits for 15 years based on the policy’s cash value. The written agreement was terminated pursuant to its terms in 2012, but then was allegedly reinstated in 2013 in a conversation between the […]
A local couple is very pleased with the settlement reached in a lawsuit that revealed a towing company was not advertising the sale of towed, impounded, or stored vehicles in a public place as required by law, and the towing company owner had been selling hundreds of such vehicles to himself or back to his own towing company. Dan Casey, columnist for The Roanoke Times, recently wrote an article about the couple’s ordeal and this legal resolution. Stephen and Melanie Pence were represented by Gentry Locke attorneys Matthew W. Broughton and Andrew M. Bowman in a suit filed in the United States […]
On May 9, 2018 and May 15, 2018 Gentry Locke partner Benjamin D. Byrd will present a CLE session to members of the Virginia Trial Lawyers Association (VTLA) at their 2018 May Tort Seminar. Ben’s presentation will cover 4:10 Examinations as they relate to challenging medical evidence presented by Defendants. The session covers the Virginia state court rule, not the federal rule.
Virginia Lawyers Weekly recently corrected their 2017 list of Million-dollar Settlements to include a legal malpractice matter handled by Gentry Locke attorneys Matthew W. Broughton, Gregory D. Habeeb, and Andrew D. Finnicum. The case, which settled for $5M, warrants a #9 spot on a list of more than two dozen cases that settled for more than $1M in 2017. Read the Virginia Lawyers Weekly list (PDF opens in a new window)
To support our ongoing commitment to pro bono work, Gentry Locke has created two awards to recognize outstanding pro bono efforts. These awards were presented for the first time on February 11, 2018. The first award is the Gentry Locke Pro Bono Promise Award. It will be awarded annually to recognize pro bono work that exceeds the 2% yearly aspirational goal set by the Supreme Court of Virginia, in either a quantitative (sheer hours) or qualitative way (great project or impact). The award can be given to an individual Gentry Locke attorney or group of attorneys. The 2017 recipient of […]
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Defendant United States District Court, Eastern District of Virginia We represented a large national bank in a long-term disability (LTD) claim arising under the Employee Retirement Income Security Act (ERISA). The plaintiff was a bank employee until she ended her employment due to physical disabilities. She was paid LTD benefits until the results of an independent medical examination revealed that her current symptoms no longer supported a finding of total disability. Accordingly, her LTD benefits were terminated. The plaintiff brought a claim for breach of fiduciary duty under ERISA against the bank in addition to a more […]
Gentry Locke Partner Bill Gust will be a featured speaker at two upcoming conferences geared toward employee-owned businesses. “Mitigating Cyber Security Risk from a Fiduciary Perspective” will be presented at the ESOP Association Mid-Atlantic/Carolinas Chapter’s Spring Conference in Charlottesville, VA on Friday, March 9, 2018, and also at the National Center for Employee Ownership (NCEO) Conference in Atlanta, Georgia on Wednesday, April 18, 2018. Learn more about the events and register to attend by clicking on these links: Charlottesville event Atlanta event
Bill Gust is a Senior Tax Partner with Gentry Locke. For more than 30 years, Bill has worked with closely held business owners relative to tax, employee benefits, corporate, and sophisticated estate planning matters. With his expertise in implementing business succession strategies, Bill has assisted in the successful transition of many privately held businesses, through sales, mergers and implementation of numerous ESOPs. The Tax Cuts and Jobs Act (the “Act”) will bring significant changes to many areas of the tax law affecting individuals and businesses beginning January 2018 through 2025. In 2026, the pre-Act rules are scheduled to come back into effect. This […]
On March 9, Gentry Locke Partner Bill Gust will speak at the ESOP Association Mid-Atlantic/Carolinas Chapter’s 2018 Spring Conference. Bill’s topic will cover “Cyber Security Risk From a Fiduciary Perspective.” Gentry Locke is a Bronze Sponsor of the chapter’s 2018 Spring ESOP Conference and Golf Tournament. This year’s conference offers a great line-up of expert speakers, roundtables, and workshops designed for all levels of employee-ownership. For more information or to register, click here.
On April 18, 2018, Gentry Locke Partner Bill Gust will be presenting a session at the National Center for Employee Ownership (NCEO) Conference in Atlanta, Georgia. Bill’s topic will cover “Mitigating Cyber Security Risk from a Fiduciary Perspective.” Representatives from employee-owned companies from around the world attend the conference, which runs from April 18–20, with preconference sessions on April 17. Gentry Locke is pleased to be a sponsor of this event. As a sponsor, we’re pleased to offer the following discount codes. Just provide them when you register on their website: $35 off main conference per attendee: 18Save35 $25 off […]
Case Studies
February 2018
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Plaintiff Roanoke City Circuit Court There are two important rules in the practice of radiology: (1) a radiologist must communicate all pertinent anatomy and diagnoses on imaging studies; and (2) a radiologist must clearly and effectively communicate, leaving no room for misunderstandings by clinicians. If a radiologist does not do both of these things, patients will suffer misdiagnoses that will cause serious injury and/or death. On August 16, 2016 our client presented to the LewisGale Medical Center Emergency Department with abdominal pain, nausea and vomiting after having undergone a colonoscopy the day before. Our client’s clinicians […]
The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Partner Catherine J. Huff was named to the Virginia State Bar’s Young Lawyers Conference (YLC) Board of Governors. Huff is serving a two-year term as the 8th District Representative. The YLC was founded in 1973 as a subset of the Virginia State Bar. Its members are considered to be the voice of Virginia’s young lawyers in front of the Virginia State Bar and the American Bar Association. YLC activities include semi-annual admission and orientation ceremonies, the Virginia Domestic Violence Safety Project, a board match program, minority recruitment […]
Case Studies
February 2018
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Plaintiff Warren County Circuit Court In May of 2016, our client traveled northbound on Interstate 81 in Warren County, Virginia. When our client approached an interstate crossover, a work truck for an asphalt and paving company illegally used the crossover to go from I-81 South to I-81 North. This resulted in a substantial crash which caused our client’s vehicle to catch fire. The driver of the work truck was charged with reckless driving and illegal use of a crossover, and was ultimately found guilty of both charges. Our client suffered a broken leg which required surgery, extensive […]
On May 9, 2018 Gentry Locke attorney Kathleen Wright will provide an informative presentation to attendees at an educational event for attorneys and title agents. The Spring seminar is sponsored by Chicago Title Insurance Company and will be held at Christopher Newport University in Newport News, Virginia.
On Thursday, February 8, 2018, Gentry Locke Senior Counsel Cynthia Kinser will deliver the keynote address at The Success Project for Women Attorneys, an event sponsored by the Roanoke Chapter of the Virginia Women Attorneys Association. Justice Kinser’s speech will address the barriers that women attorneys still face and have to overcome in order to reach the same level of success as men attorneys.
Case Studies
February 2018
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Defendant United States District Court, Western District of Virginia After being informed that our client intended to file a trade secret misappropriation case in Ohio on behalf of its business, the opposing company filed a declaratory judgment action in Franklin County Circuit Court seeking a ruling that it had not misappropriated any of our client’s trade secrets. Gentry Locke attorneys Kevin Holt and Alicha Grubb then removed the Virginia case to Federal Court and moved to have it dismissed. The Virginia Federal Court granted the motion, finding that the opposing company had improperly filed the declaratory judgment action first in “an improper attempt […]
On January 22, 2018, Virginia Lawyers Weekly noted that a medical malpractice case handled by Gentry Locke Partners Anthony M. Russell and S.D. Roberts Moore topped their list of Largest Verdicts for Virginia in 2017. The case was unusual as the wrongful death of a 55-year-old woman during surgery resulted in the surgeon and anesthesiologist blaming one another. According to the Largest Verdicts article, which requires a subscription to access, the Fairfax County jury delivered a $7 million verdict for the patient’s family on July 19, 2017 and also provided interest dating from the surgery date back in 2013. The verdict […]
ROANOKE, Va. (February 2, 2018) – The Virginia law firm of Gentry Locke is pleased to announce that Roanoke Partner Jonathan D. Puvak was presented with the Emerson G. Spies Award during The Virginia Bar Association’s 128th Annual Meeting in Williamsburg, Virginia on January 19, 2018. The award is given annually to a member of The Virginia Bar Association’s Young Lawyers Division (YLD) for loyalty, dedication, and enthusiasm. Puvak was named as this year’s Emerson G. Spies Award recipient specifically in recognition of his efforts chairing the YLD’s CLE Committee. Puvak planned and coordinated continuing legal education programming for all […]
Case Studies
January 2018
The results of client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.Gentry Locke for the Defendant Fairfax County Circuit Court Gentry Locke attorneys successfully defended a large, residential real estate brokerage firm in a breach of contract case. The plaintiff, a North Carolina consulting firm, designed new commission plans for our client’s thousands of real estate agents in the mid-Atlantic region. The plaintiff contended that it was owed $1.4 million in cumulative incentive payments based on improvement to the brokerage’s “company dollar” percentage, or profit margin, over the five-year period following adoption of the plans. However, under a plain reading of the contract and the brokerage’s financial performance, no incentive payments were […]
ROANOKE, Va. (January 1, 2018) – Gentry Locke is pleased to announce that Roanoke office attorneys Jonathan D. Puvak and Daniel R. Sullivan have been promoted to the position of Partner, effective January 1, 2018. Puvak practices on the firm’s Business & Corporate team, assisting businesses, business owners, and governmental entities with corporate governance, commercial transactions, employee benefits, and tax and real estate matters. Before attending law school, Puvak gained business and real estate development experience by working with NVR Inc., one of the nation’s largest homebuilders. He is a member and holds leadership positions with the Virginia State Bar’s Young Lawyers Conference, […]
