Netter v. Barnes

• Decision Date: 15 November 2018
• Docket Number: No. 18-1039,18-1039
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

908 F.3d 932

Catherine D. NETTER, an individual, Plaintiff - Appellant,

v.Sheriff BJ BARNES, in his official and individual capacity, Defendant - Appellee,andGuilford County Sheriff’s Office, a North Carolina public entity, Defendant.

No. 18-1039

United States Court of Appeals, Fourth Circuit.

Argued: October 10, 2018

Decided: November 15, 2018

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.

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.

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 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 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. Robinson v. Shell Oil Co. , 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (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, 129 S.Ct. 846, 172 L.Ed.2d 650 (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 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, 133 S.Ct. 2517, 186 L.Ed.2d 503 (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.

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);...