                                      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.




                                        2
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

                                            3
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



                                           4
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).


                                               5
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

                                             6
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.




                                            7
                                           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.

                                            8
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.

                                             9
       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;

                                             10
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.

                                            11
                                            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

                                            12
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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