Appeals Court Says Termination for Illegal Act Is Not Retaliation

An employee is ordinarily protected from adverse employment action when seeking evidence to support a discrimination claim but what happens when that employee breaks the law when seeking that information?

After 16 years with a clean work record at the Guilford County Sherriff’s office in North Carolina, Catherine Netter received a disciplinary action that prevented her from testing for a promotion.  Netter filed both an internal complaint with the County and an Equal Employment Opportunity Commission (EEOC) charge claiming that she had been discriminated against because of her race (African American) and religion (Muslim).

Caught in the Act

During the County’s investigation of the complaint, and without permission, Netter accessed and copied the personnel files of five co-workers whom she thought had been treated more favorably than her.  She then submitted those files to her employer and to the EEOC.

After the EEOC dismissed her charge, Netter filed a federal court lawsuit against the Sherriff’s office and against the Sherriff personally.  In the course of pre-trial discovery, Netter turned over the copied personnel files, prompting the Sherriff’s attorney to inquire about how she obtained those items.  After Netter confessed that she had accessed the files on her own, the Sherriff’s office terminated her employment, leading Netter to file an additional claim of retaliation.

The trial judge dismissed the claim in its entirety and Netter appealed to the Fourth Circuit Court of Appeals, challenging only the dismissal of her retaliation claim.  She argued that obtaining the files in support of her discrimination claim was protected under the retaliation provision of Title VII, which prohibits adverse action based on an employee’s “participat[ion] in any manner in an investigation, proceeding, or hearing under this subchapter.”

Actions Have Consequences

The Appeals Court acknowledged that the phrase “in any manner” made it incumbent upon them to afford a broad umbrella of protection even when an employee’s actions seem plainly “unreasonable” or “irrelevant.” They further observed that in light of the difficulties that employees have in collecting evidence to support their claims, wide latitude to obtain and present helpful evidence should be afforded to employees.

Nevertheless, the Court explained that such protection cannot and should not be extended so far as to include illegal activities.  Though it may be difficult for employees to obtain evidence on their own, they have the ability to do so through the investigative process under Title VII or the pre-trial discovery procedures in state or federal court. Resorting to illegal methods to obtain evidence, however, crosses the line.

The Court then concluded that Netter had in fact crossed that line by violating a North Carolina statute that gives rise to a misdemeanor for “knowingly and willfully examin[ing] . . . , remov[ing,] or copy[ing] any portion of a confidential personnel file” without authorized access.  As a result, they dismissed Netter’s retaliation claim because her “unauthorized review and duplication of confidential personnel files did not constitute protected …participation activity.”

Bottom Line

This is a very helpful decision that draws a clear and necessary line employers.  Employees typically are protected when they seek evidence of differential treatment, e.g. asking co-workers whether they ever received disciplinary actions similar to what they just received.

However, when the employee violates the law to obtain that information and suffers consequences as a result, there is a good chance based on this decision that those consequences will not be considered unlawfully retaliatory.  We look forward to the Eighth Circuit Court of Appeals (which covers Minnesota) adopting this same analysis when they next have occasion to address a claim of this type..