J. DeMasters v. Carilion Clinic

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2278
J. NEIL DEMASTERS,
Plaintiff – Appellant,
v.
CARILION CLINIC; CARILION MEDICAL CENTER; CARILION
BEHAVIORAL HEALTH, INC.,
Defendants – Appellees.
-------------------------
NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:12-cv-00580-MFU-RSB)
Argued: January 29, 2015 Decided: August 10, 2015
Before Thomas L. AMBRO and Cheryl Ann KRAUSE, Circuit Judges of
the United States Court of Appeals for the Third Circuit,
sitting by designation, and Maryanne Trump BARRY, Senior Circuit
Judge of the United States Court of Appeals for the Third
Circuit, sitting by designation. *
* As all members of the Court of Appeals for the Fourth
Circuit are recused in this case, a panel from the neighboring
Third Circuit was appointed for this appeal.
Reversed and remanded by published opinion. Judge Krause wrote
the opinion, in which Judge Ambro and Senior Judge Barry joined.
ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., PC, Roanoke,
Virginia, for Appellant. Frank Kenneth Friedman, WOODS ROGERS
PLC, Roanoke, Virginia, for Appellees. Susan L.P. Starr, U. S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus United States Equal Employment Opportunity Commission.
ON BRIEF: Brittany Michelle Haddox, TERRY N. GRIMES, ESQ., PC,
Roanoke, Virginia, for Appellant. Agnis Chandra Chakravorty,
Joshua Richard Treece, WOODS ROGERS PLC, Roanoke, Virginia, for
Appellees. Michael L. Foreman, PENNSYLVANIA STATE UNIVERSITY
DICKINSON SCHOOL OF LAW CIVIL RIGHTS APPELLATE CLINIC, State
College, Pennsylvania; Roberta L. Steele, NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION, San Francisco, California, for Amicus
National Employment Lawyers Association. P. David Lopez,
General Counsel, Lorraine C. Davis, Acting Associate General
Counsel, Carolyn L. Wheeler, Assistant General Counsel, U. S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus United States Equal Employment Opportunity Commission.
2
KRAUSE, Circuit Judge:
In 2011, after five years of employment as an employee
assistance program consultant in Carilion’s behavioral health
unit, Appellant J. Neil DeMasters allegedly was fired for acting
“contrary to his employer’s best interests,” failing to take the
“pro-employer side,” and leaving his employer “in a compromised
position,” as a result of his support of a fellow employee’s
sexual harassment complaint and his criticism of the way the
employer had handled the investigation. DeMasters brought suit
against Carilion Clinic, Carilion Medical Center, and Carilion
Behavioral Health, Inc. (collectively, “Carilion”), claiming
that he was terminated for engaging in protected activity,
including opposing an unlawful employment practice, in violation
of Title VII of the Civil Rights Act of 1964. The District
Court dismissed DeMasters’ complaint, primarily on the grounds
that no individual activity in which DeMasters engaged by itself
constituted protected oppositional conduct and that the so-
called “manager rule,” in any event, prevented an employee whose
job responsibilities included reporting discrimination claims
from seeking protection under Title VII’s anti-retaliation
provision. As we now hold that the proper test for analyzing
oppositional conduct requires consideration of the employee’s
course of conduct as a whole and that the “manager rule” has no
3
place in Title VII jurisprudence, we will reverse and remand for
DeMasters to proceed with his suit.
I.
A.
DeMasters began working in July 2006 as an employee
assistance program (“EAP”) consultant for Carilion, a large
healthcare organization that owns and operates several
hospitals. 1 In October 2008, DeMasters was consulted by John
Doe, a Carilion employee who had been referred to the EAP for
help. At this meeting, Doe revealed that his department manager
had been harassing him for the last several months and described
how his manager had masturbated in front of him twice on
hospital grounds, asked Doe for oral sex, and asked Doe to
display his genitals. Doe also offered that he had physical
evidence of the harassment.
After hearing Doe out, DeMasters opined that Doe was a
victim of sexual harassment in violation of Carilion’s sexual
1Because we are reviewing this case on a motion to dismiss,
we adopt the facts as alleged in DeMasters’ first amended
complaint. The complaint here does not provide specific details
concerning the scope of DeMasters’ counseling responsibilities.
As a general matter, however, “[e]mployee [a]ssistance
[p]rograms are worksite-based programs designed to assist
employees in identifying and resolving personal issues, ranging
from health, marital, and financial concerns to substance abuse
and emotional problems.” Oleszko v. State Comp. Ins. Fund, 243
F.3d 1154, 1155 (9th Cir. 2001).
4
harassment policy and formulated a plan with Doe to report the
harassment and facilitate the investigation of Doe’s complaint.
To assist Doe with this reporting and investigation, DeMasters
suggested that Doe sign a release form that authorized DeMasters
to communicate with Carilion’s human resources (“HR”) department
directly on Doe’s behalf. That same day, DeMasters put this
plan in motion by contacting the HR department, relaying the
substance of Doe’s complaint, and thereby initiating the
investigation of Doe’s alleged sexual harassment. Once Carilion
began to investigate the matter and took a statement from Doe,
it fired the harasser and told Doe that this individual would
never be allowed back on hospital property.
A few days later, however, DeMasters received a distressed
call from Doe, who had learned that the harasser had been
permitted by Doe’s department director to come back to the
hospital to collect his belongings. DeMasters then scheduled
another meeting with Doe for the following day. At that
meeting, Doe explained that he felt uncomfortable with the
department director and was facing increasing hostility from co-
workers aligned with the harasser. To ascertain how best he
could assist Doe with this increasingly hostile workplace,
DeMasters convened a meeting of his EAP colleagues, who agreed
that DeMasters should contact Carilion’s HR department to offer
suggestions as to how it might better handle the situation,
5
including by intervening to stop the hostile behavior by the
harasser’s friends. DeMasters followed through on this plan by
calling and leaving a message for an HR representative who
called him back the next day.
In that conversation, after confirming that the HR
representative was aware that Doe was being subjected to
harassing behavior from his co-workers, DeMasters offered to
coach Carilion’s HR department about better ways to respond to
Doe’s concerns. The HR representative declined and stated that
he would speak with the department director. However, several
days later, Doe reported to DeMasters that his co-workers’
behavior was getting worse, that he was dissatisfied with
management’s reaction to his complaint, and that he feared his
harasser would come looking for him with a gun. In response,
DeMasters offered his opinion that Carilion’s management and HR
department had been mishandling Doe’s complaints. DeMasters
also reached out to Carilion’s HR manager again to say that he
felt that Carilion was not handling the case properly.
DeMasters does not allege any subsequent contact with Doe
or activity on Doe’s behalf and apparently was unaware of the
legal remedies pursued by Doe over the next two years. In 2010,
however, one of Carilion’s managers called DeMasters and
informed him that Doe had filed a Title VII complaint with the
Equal Employment Opportunity Commission (“EEOC”) and was
6
pursuing a civil suit for sexual harassment against Carilion.
In that conversation, the manager pressed DeMasters on his
involvement with Doe’s harassment complaint. DeMasters
acknowledged that Doe had been to the EAP but did not reveal any
details of DeMasters’ own involvement with Doe’s internal
complaints. The manager told DeMasters that he might expect to
hear more from Carilion on the matter.
That he did. Within a few weeks of Doe and Carilion
reaching a settlement, DeMasters was called to a meeting with
several of Carilion’s managers, including the vice president of
HR, the EAP department director, and corporate counsel. When
DeMasters asked at the outset if he could have counsel present,
he was told that if he persisted he would be considered
insubordinate and would be terminated. The Carilion managers
then proceeded to ask DeMasters about Doe’s sexual harassment
complaint and specifically whether DeMasters told Doe that what
happened to him was sexual harassment. When DeMasters
acknowledged sharing his view that Doe was a victim of sexual
harassment, the managers asked DeMasters why he had not taken
“the pro-employer side” and if he understood the magnitude of
the liability the company could face if one of its supervisors
had engaged in harassment. J.A. 31-32. The managers also told
DeMasters that he had not protected Carilion’s interests and
that he had left Carilion “in a compromised position.” J.A. 32.
7
The EAP department director likewise accused DeMasters of
“fail[ing] to protect Carilion” and “plac[ing] the entire
operation at risk.” Id.Two days after this meeting, Carilion fired DeMasters.
Carilion’s letter to DeMasters, explaining the reasons for his
termination, stated that DeMasters had “fail[ed] to perform or
act in a manner that is consistent with the best interests of
Carilion Clinic.” Id. Separately, the EAP department director
sent DeMasters a letter stating that he was being fired because
he: (1) “made statements that could reasonably have led [Doe] to
conclude that he should file suit against Carilion”; (2) “failed
to perform or act in a manner that is consistent with the best
interests of Carilion Clinic”; (3) “made multiple statements
that were contrary to his employer’s best interests and that
required disciplinary action”; and (4) “failed to protect
Carilion EAP’s client company, in this case also the employing
organization, Carilion.” Id. This letter concluded that “the
EAP contractor was very fortunate to be able to maintain this
company as the entire operation was at risk for the actions of
one consultant.” Id. By way of further explanation, DeMasters’
direct supervisor in the EAP told him that Carilion was angry at
having to settle Doe’s discrimination lawsuit and was looking to
“throw somebody under the bus.” Id.8
B.
After filing a charge of discrimination with the EEOC and
receiving a notice of right to sue, DeMasters timely filed a
complaint in the District Court for the Western District of
Virginia. In that complaint, DeMasters claimed that Carilion
terminated his employment in violation of Title VII’s anti-
retaliation provision, under various legal theories, including
that he was fired in violation of Title VII’s so-called
Opposition Clause, which forbids retaliation against an employee
who “oppose[s] any practice made an unlawful employment practice
by this subchapter.” 42 U.S.C. § 2000e-3(a). 2
The District Court granted Carilion’s motion to dismiss,
concluding that DeMasters failed to raise plausible allegations
that he engaged in protected activity under the Opposition
Clause because: (1) the conversations that took place between
DeMasters and Doe about the alleged discrimination did not
2
In a thorough and thoughtful analysis, the District Court
also rejected DeMasters’ arguments that he was fired in
violation of Title VII’s Participation Clause, which protects
employees who “ma[ke] a charge, testif[y], assist[], or
participate[] in any manner in an investigation, proceeding, or
hearing under this subchapter,” 42 U.S.C. § 2000e-3(a), and that
he was fired as a matter of unlawful third-party retaliation to
punish Doe, see Thompson v. N. Am. Stainless, LP, 562 U.S. 170(2011). We have no need to reach DeMasters’ Participation
Clause or third-party retaliation arguments because we hold that
DeMasters stated a claim for retaliation under the Opposition
Clause and will reverse on that basis.
9
constitute purposive communications from DeMasters to Doe’s
employer, Carilion; (2) DeMasters’ communications to Carilion
merely reflected transmissions of Doe’s complaints and not
DeMasters’ own opposition to unlawful activity; and (3)
DeMasters’ criticisms of the way Carilion handled the
investigation did not oppose activity that itself was unlawful
under Title VII. In addition, the District Court held that,
under the so-called “manager rule,” even if the activity were
otherwise protected, DeMasters could not avail himself of that
protection because he was acting within the scope of his job
duties as an EAP consultant in counseling Doe and communicating
with Carilion. The District Court therefore dismissed
DeMasters’ complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). This timely appeal followed.
II.
The District Court had jurisdiction pursuant to 42 U.S.C. §
2000e-5(f)(3) and 28 U.S.C. § 1331, and we have appellate
jurisdiction under 28 U.S.C. § 1291. We review the District
Court’s dismissal de novo, accepting all well-pleaded
allegations of the complaint as true and drawing all reasonable
inferences therefrom in favor of the plaintiff. Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997). Like the
District Court, we consider whether the complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim
10
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). 3
III.
Title VII forbids employment discrimination based on “race,
color, religion, sex, or national origin,” 42 U.S.C. § 2000e-
2(a), and its anti-retaliation provision serves to “prevent[] an
employer from interfering (through retaliation) with an
employee’s efforts to secure or advance enforcement of the Act’s
basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 63 (2006); 42 U.S.C. § 2000e-3(a). In order to
establish a prima facie Title VII retaliation claim, a plaintiff
must demonstrate three elements: “(1) that [he] engaged in a
protected activity, as well as (2) that [his] employer took an
adverse employment action against [him], and (3) that there was
a causal link between the two events.” Boyer-Liberto v.
3The Fourth Circuit has previously held that a court must
be “especially solicitous of the wrongs alleged” in a civil
rights complaint, see, e.g., Slade v. Hampton Rds. Reg’l Jail,
407 F.3d 243, 248 (4th Cir. 2005); Veney v. Wyche, 293 F.3d 726,
730 (4th Cir. 2002), but more recently has called into question
whether this special solicitude survives the heightened pleading
standard articulated by Twombly and Iqbal, see Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). This issue was
not briefed by the parties, and we need not resolve it here
because we conclude we would reverse and remand even under
Twombly and Iqbal’s higher standard.
11
Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc)
(internal quotation marks omitted).
While it is undisputed that the second element is
satisfied, the District Court in effect held that DeMasters did
not plead either the first or third elements because he did not
engage in protected activity under Title VII’s Opposition Clause
and thus was not terminated on that basis. We conclude that the
District Court erred, first, by examining DeMasters’
communications as if they were each discrete incidents rather
than as a continuous course of oppositional conduct and, second,
by applying the “manager rule” to DeMasters’ Title VII
retaliation claim. We address these issues in turn.
A.
The District Court examined each of DeMasters’
communications in a discrete fashion, analyzing separately
DeMasters’ conversations with Doe, DeMasters’ communication of
Doe’s complaints to Carilion, and DeMasters’ criticism to
Carilion of its internal investigation, and concluded that no
act by itself constituted protected activity. Neither the text
nor the purpose of Title VII is served by this method of parsing
a continuous course of oppositional conduct into individual acts
and assessing those acts in isolation.
Title VII’s Opposition Clause, by its terms, prohibits
retaliation against an employee who has “opposed any practice
12
made an unlawful employment practice” by Title VII. 42 U.S.C. §
2000e-3(a). The Supreme Court has defined “oppose” in this
context by looking to its ordinary meaning: “to resist or
antagonize . . . ; to contend against; to confront; resist;
withstand, . . . to be hostile or adverse to, as in opinion.”
Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn.,
555 U.S. 271, 276 (2009) (internal citations omitted) (quoting
Webster’s New International Dictionary 1710 (2d ed. 1958);
Random House Dictionary of the English Language 1359 (2d ed.
1987)). This broad definition led the Court to conclude that
the threshold for oppositional conduct is not onerous. Instead,
“[w]hen an employee communicates to her employer a belief that
the employer has engaged in . . . a form of employment
discrimination, that communication virtually always constitutes
the employee’s opposition to the activity.” Crawford, 555 U.S.
at 276 (internal quotation marks omitted) (citing 2 EEOC
Compliance Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar. 2003)).
This Circuit, as well as the other Courts of Appeals, also
has articulated an expansive view of what constitutes
oppositional conduct, recognizing that it “encompasses utilizing
informal grievance procedures as well as staging informal
protests and voicing one’s opinions in order to bring attention
to an employer’s discriminatory activities.” Laughlin v. Metro.
Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see
13
also Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39,
47-48 (1st Cir. 2010) (recognizing that even non-verbal conduct
may constitute protected activity); Barrett v. Whirlpool Corp.,
556 F.3d 502, 516 (6th Cir. 2009) (protected activity includes
“complain[ing] about unlawful practices to a manager, the union,
or other employees”); Moore v. City of Philadelphia, 461 F.3d
331, 343 (3d Cir. 2006) (quoting Curay-Cramer v. Ursuline Acad.
of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006))
(protected activity covers “informal protests of discriminatory
employment practices[,] including making complaints to
management”); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.
1996) (protected activity includes endeavoring to obtain an
employer’s compliance with Title VII).
And while the oppositional activity must be directed to “an
unlawful employment practice” under Title VII, 42 U.S.C. §
2000e-3(a), this Circuit’s recent en banc opinion in Boyer-
Liberto made clear that we should also interpret “unlawful
employment practice” broadly. 786 F.3d at 282. Thus, “an
employee is protected when she opposes ‘not only . . .
employment actions actually unlawful under Title VII but also
employment actions [she] reasonably believes to be unlawful,’”
and the Title VII violation to which the oppositional
communication is directed “may be complete, or it may be in
14
progress.” Id. (alterations in original) (quoting EEOC v. Navy
Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005)).
In sum, nothing in the language of the Opposition Clause
nor in its interpretation by the courts supports a myopic
analysis under which an employee’s opposition must be evaluated
as a series of discrete acts. 42 U.S.C. § 2000e-3(a). On the
contrary, as the Third Circuit has observed in a similar
context, “[t]hese determinations depend on the totality of the
circumstances, as [a] play cannot be understood on the basis of
some of its scenes but only on its entire performance, and
similarly, a discrimination analysis must concentrate not on
individual incidents, but on the overall scenario.” Moore, 461
F.3d at 346 (second alteration in original) (citations and
internal quotation marks omitted). Likewise, in Collazo, where
the plaintiff had arranged meetings with the HR department for a
co-worker and then complained to HR about problems with his
company’s ongoing internal investigation of the co-worker’s
complaint, the First Circuit, reviewing the full range of the
plaintiff’s conduct, held that his “persistent efforts to help
[the victim] initiate her sexual harassment complaint and urge
Human Resources to act upon that complaint” constituted
protected opposition activity. Id. at 43-44, 47.
This holistic approach is also consistent with the broad
remedial purpose of Title VII: to root out the “cancer [of
15
discrimination] in [the] workplace.” Boyer-Liberto, 786 F.3d at
284 (quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 356 (4th
Cir. 2006) (King, J., dissenting)). This is particularly so in
the retaliation context, where Title VII “must be read ‘to
provide broader protection for victims of retaliation than for
[even] victims of race-based, ethnic-based, religion-based, or
gender-based discrimination,’ because ‘effective enforcement
could . . . only be expected if employees felt free to approach
officials with their grievances.’” Id. at 283 (alterations in
original) (quoting Burlington N., 548 U.S. at 66-67); see also
Thompson, 562 U.S. at 174 (“Title VII’s antiretaliation
provision prohibits any employer action that ‘well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.’”) (quoting Burlington N., 548 U.S. at 68).
Acknowledging and protecting activities that, viewed as a whole,
oppose unlawful discrimination will promote the prompt and full
reporting on which Title VII enforcement depends.
We conclude from this review of the statute and case law
that we must examine the course of a plaintiff’s conduct through
a panoramic lens, viewing the individual scenes in their broader
context and judging the picture as a whole. Although individual
acts may be scrutinized to ascertain their nature, purpose, and
nexus to the alleged objective, the touchstone is whether the
plaintiff’s course of conduct as a whole (1) “communicates to
16
her employer a belief that the employer has engaged in . . . a
form of employment discrimination,” Crawford, 555 U.S. at 276;
and (2) concerns subject matter that is “actually unlawful under
Title VII” or that the employee “reasonably believes to be
unlawful,” Boyer-Liberto, 786 F.3d at 282.
Applying these criteria to the allegations here, we are
satisfied that DeMasters has alleged that he engaged in
protected oppositional activity. First, the complaint describes
a course of conduct by DeMasters that clearly and effectively
conveyed to Carilion over several weeks his belief that Carilion
was violating Title VII by subjecting Doe to unlawful conduct.
See Crawford, 555 U.S. at 276. As alleged, DeMasters became
Doe’s leading advocate and adviser from the day Doe first told
DeMasters about his manager’s harassing behavior, and DeMasters
persisted in his advocacy on Doe’s behalf as Carilion
investigated the complaint. DeMasters generated a plan with Doe
to report the harassment and to galvanize Carilion’s internal
investigation, arranged for Doe to sign a release so that he
could speak directly with HR on Doe’s behalf, and relayed Doe’s
harassment complaint to HR, leading to the termination of the
harasser. Upon learning that Doe was facing increasing
hostility from co-workers who sympathized with the harasser,
DeMasters consulted with his EAP colleagues and formulated
another plan to try to draw Carilion’s attention to the hostile
17
workplace and to improve the situation. He then reached out to
the HR department, ensured that an HR representative aware of
the hostility confronting Doe, and offered EAP’s services to
coach the HR department on how to respond more effectively. And
when Doe reported that the hostile environment was only
intensifying, DeMasters shared his opinion that Carilion was
mishandling the matter not only with Doe but also with
Carilion’s HR manager.
The District Court concluded these allegations did not
reflect protected activity because DeMasters, by “not
complain[ing] himself of workplace discrimination or other
unlawful employment practices” and “[m]erely ferrying Doe’s
allegations to Carilion’s human relations department,” did not
engage in “purposive conduct.” J.A. 93, 96. In imposing this
requirement, the District Court relied on this Circuit’s
unpublished opinion in Pitrolo, where the panel held, consistent
with Justice Alito’s concurrence in Crawford, that “opposition”
should be limited to “purposive conduct.” 4 Pitrolo v. Cty. of
4
This Circuit “ordinarily do[es] not accord precedential
value to [its] unpublished decisions,” although those decisions
are entitled “to the weight they generate by the persuasiveness
of their reasoning.” Pressley v. Tupperware Long Term
Disability Plan, 553 F.3d 334, 339 (4th Cir. 2009) (quoting
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.
2006)); see also 4th Cir. Loc. R. 32.1. At least one other
district court within this Circuit has also relied on Pitrolo to
hold that opposition must be purposive. See, e.g., Harris-
(Continued)
18
Buncombe, N.C., No. 07-2145, 2009 WL 1010634, at *3 n.6 (4th
Cir. Mar. 11, 2009) (unpublished) (quoting Crawford, 555 U.S. at
281-82 (Alito, J., concurring)). While the Crawford majority
defined “oppose” to include “to be hostile or adverse to, as in
opinion,” Crawford, 555 U.S. at 276, Justice Alito described
this part of the definition as dictum, observed that the term’s
other meanings reflected “purposive conduct,” and expressed
concern that extending the definition to “silent opposition”
(for example, “by employees who never expressed a word of
opposition to their employers”) would be excessive and
impractical, id. at 282 (Alito, J., concurring).
We need not decide today on the vitality of a
“purposive[ness]” requirement, 5 however, because, with the term
Rogers v. Ferguson Enters., No. 09-78, 2011 WL 4460574, at *7
(E.D.N.C. Sept. 26, 2011).
5We note the Crawford majority did not adopt such a
requirement and was explicit that “‘[o]ppose’ goes beyond
‘active, consistent’ behavior in ordinary discourse, where we
would naturally use the word to speak of someone who has taken
no action at all to advance a position beyond disclosing it. . .
. [W]e would call it ‘opposition’ if an employee took a stand
against an employer’s discriminatory practices not by
‘instigating’ action, but by standing pat, say, by refusing to
follow a supervisor’s order to fire a junior worker for
discriminatory reasons.” 555 U.S. at 277. And while the Sixth
Circuit endorsed the “purposive conduct” test in Thompson v.
North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009) (en
banc), the Supreme Court, in overruling on other grounds,
emphasized the importance of using an objective standard in the
Title VII anti-retaliation context “so as to ‘avoi[d] the
(Continued)
19
“purposive” properly construed, DeMasters’ conduct would easily
qualify in any event. The District Court took “purposive” to
mean that the protections of the Opposition Clause are limited
to “an employee who directly communicate[s] to her employer her
[own] experiences with [discrimination] in the workplace,” and
that the complaining employee must not only “intend[]…to relay
[a co-worker’s] complaints” to his employer, but also must
“voice his own opposition to any unlawful employment practice.”
J.A. 94, 96. It was mistaken. Although Justice Alito sought to
distinguish “silent opposition” and to limit the protection of
the Opposition Clause to conduct that was “active and
purposive,” he was in full agreement with the majority that
oppositional conduct need not be “instigated or initiated by the
employee,” and that an employee’s communication to his employer
about a belief that the employer has engaged in discrimination
uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff’s unusual subjective
feelings.’” Thompson, 562 U.S. at 175 (alteration in original)
(quoting Burlington, 548 U.S. at 68-69)). No other Court of
Appeals has adopted Justice Alito’s “purposiveness” requirement
in a precedential opinion, cf. Thompson v. Somervell Cty., Tex.,
431 F. App’x 338, 341 (5th Cir. 2011) (unpublished); Demers v.
Adams Homes of Nw. Fla., Inc., 321 F. App’x 847, 852 (11th Cir.
2009) (unpublished), although in Collazo, the First Circuit
noted that the existence of this requirement was an open
question and concluded that the plaintiff’s conduct in that case
“effectively and purposefully communicated his opposition,” 617
F.3d at 47-48.
20
“virtually always constitutes the employee’s opposition to the
activity.” Crawford, 555 U.S. at 281-82 (Alito, J., concurring)
(internal quotation marks omitted).
Here, no one could mistake DeMasters’ alleged activities
for “silent opposition.” On the contrary, he asserts that he
actively and deliberately communicated to Carilion both Doe’s
complaints and DeMasters’ own opinion that these complaints were
not properly handled, offered to share ideas about how they
could be better handled, and, like the plaintiff in Collazo,
made “persistent efforts to help [Doe] initiate [his
discrimination] complaint and urge Human Resources to act upon
that complaint.” 6 Collazo, 617 F.3d at 47. Thus, even assuming
a threshold requirement that conduct be “purposive” to be
protected under the Opposition Clause, DeMasters’ allegations
easily clear that hurdle.
6
Carilion attempts to distinguish Collazo by asserting that
the plaintiff in that case expressed actual oppositional views
by describing his co-worker’s complaint as “a serious case,” id.
at 44, whereas DeMasters never expressed oppositional views for
the purpose of addressing discrimination. But Carilion
mischaracterizes DeMasters’ actions: By helping to initiate an
internal complaint, describing the underlying harassment that
Doe faced by relaying that complaint, urging HR to take action,
and then criticizing Carilion’s handling of the investigation
for the hostility it generated among co-workers, DeMasters
opposed Doe’s harassment at least as effectively as if he had
described it as “a serious case.” Id.21
Having concluded that DeMasters’ alleged course of conduct,
viewed as a whole, “communicate[d] to [his] employer a belief
that the employer has engaged in . . . a form of employment
discrimination,” Crawford, 555 U.S. at 276, we now address the
second part of our test—the subject matter to which this conduct
was directed. Here, too, the complaint is sufficient.
DeMasters plausibly alleged that he directed his communications
to practices that were “actually unlawful” or that, at a
minimum, he “reasonably believe[d] to be unlawful,” Boyer-
Liberto, 786 F.3d at 282 (quoting Navy Fed., 424 F.3d at 406),
i.e., the sexual harassment to which Doe originally was
subjected, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64-65 (1986), and the emerging retaliatory hostile work
environment to which Doe was later subjected as a result of
Carilion’s alleged mishandling of the matter, see Boyer-Liberto,
786 F.3d at 282 (protected conduct includes “oppos[ing] a
hostile work environment that, although not fully formed, is in
progress”); Noviello v. City of Boston, 398 F.3d 76, 90 (1st
Cir. 2005) (“‘[D]iscriminate’ in the anti-retaliation clause
includes subjecting a person to a hostile work environment.”).
To the extent the District Court focused on DeMasters’
criticism of Carilion’s investigation or handling of Doe’s
complaints, as opposed to the hostile environment resulting from
those activities, it again framed the issue too narrowly. The
22
District Court relied heavily on Brush v. Sears Holdings Corp.,
466 F. App’x 781 (11th Cir. 2012), which stated that the
plaintiff’s “disagreement with the way in which [her employer]
conducted its internal investigation” into a third-party’s
allegations of sexual harassment and rape “does not constitute
protected activity.” Id. at 786. We do not find Brush to be
persuasive. Whatever weight it may carry as an unpublished
opinion from another Circuit, there was no allegation in that
case, as there is here, that the plaintiff reasonably believed
the way the employer was handling the matter was itself
responsible for an unlawful employment practice, in this case, a
retaliatory hostile work environment. At the time of its
decision, the District Court also did not have the benefit of
this Circuit’s decision in Boyer-Liberto, which made clear that
“an employee is protected from retaliation for opposing an
isolated incident of harassment when she reasonably believes
that a hostile work environment is in progress, with no
requirement for additional evidence that a plan is in motion to
create such an environment or that such an environment is likely
to occur.” 786 F.3d at 284. We conclude that DeMasters’
actions as a whole constitute protected activity and that he
thus has pleaded the first element of a prima facie case for a
Title VII retaliation claim.
23
We also have no difficulty concluding that DeMasters
sufficiently pleaded the third and only remaining contested
element—a causal connection between that protected activity and
the termination of DeMasters’ employment. Two days before
firing him, Carilion’s management objected to DeMasters’
conduct, confronting him at a meeting about why he had not taken
the “pro-employer side,” asking if he understood the liability
the company could face if its supervisor had engaged in
harassment, and asserting that he had not protected Carilion’s
interests and had left it “in a compromised position.” J.A. 31-
32. In the very letter that purported to justify his
termination, Carilion reiterated that DeMasters had acted
contrary to his employer’s best interests, had “made statements
that could reasonably have led John [Doe] to conclude that he
should file suit against Carilion,” and had “failed to protect
Carilion EAP’s client company.” J.A. 32. Even at oral
argument, Carilion seemed to acknowledge that it retaliated
against DeMasters for his opposition activity, with counsel
conceding that DeMasters was fired because he “rocked the boat.”
Transcript of Oral Argument at 40-41 (argued Jan. 29, 2015).
Thus, accepting DeMasters’ factual allegations as true and
drawing all reasonable inferences in his favor, as we must on a
motion to dismiss, Ibarra, 120 F.3d at 474, DeMasters has
pleaded both protected activity and a causal connection between
24
that activity and the termination of his employment. DeMasters’
complaint thus states a claim for retaliation under the
Opposition Clause unless, as the District Court held, the
“manager rule” strips DeMasters of that protection. To that
subject, we now turn.
B.
The “manager rule” has been applied in some Circuits in the
context of retaliation claims under the Fair Labor Standards Act
(“FLSA”) to require that an employee “step outside his or her
role of representing the company” in order to engage in
protected activity. McKenzie v. Renberg’s Inc., 94 F.3d 1478,
1486 (10th Cir. 1996); see also Hagan v. Echostar Satellite,
L.L.C., 529 F.3d 617, 628 (5th Cir. 2008); Claudio-Gotay v.
Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004).
It purports to address a concern that, if counseling and
communicating complaints are part of a manager’s regular duties,
then “nearly every activity in the normal course of a manager’s
job would potentially be protected activity,” and “[a]n
otherwise typical at-will employment relationship could quickly
degrade into a litigation minefield.” Hagan, 529 F.3d at 628.
A number of district courts, including the District Court
here, have imported this categorical exception into the context
of Title VII’s anti-retaliation provision. See J.A. 93-94; see
also Rice v. Spinx Co., No. 10-1622, 2012 WL 684019, at *5
25
(D.S.C. Mar. 2, 2012); Hill v. Belk Stores Servs. Inc., No. 06-
398, 2007 WL 2997556, at *1 (W.D.N.C. Oct. 12, 2007). Thus, by
the reasoning of the District Court, even if DeMasters otherwise
had engaged in oppositional conduct, he could not qualify for
protection under Title VII because, as an EAP consultant, he had
a duty to counsel Doe and to relay his complaints to Carilion’s
HR department.
DeMasters and the EEOC 7 argue that, whatever place it may
have in FLSA jurisprudence, the “manager rule” does not apply to
Title VII. We agree. Nothing in the language of Title VII
indicates that the statutory protection accorded an employee’s
oppositional conduct turns on the employee’s job description or
that Congress intended to excise a large category of workers
from its anti-retaliation protections. While the anti-
retaliation provisions of Title VII and the FLSA both generally
“secure their substantive protections by preventing an employer
7
The EEOC, appearing as amicus curiae in this case, opposed
the application of the “manager rule” in the Title VII context
in its brief and at oral argument. Because the EEOC offers this
view in an amicus brief, which does not have the "force of law,"
its interpretation here is not entitled to Chevron deference,
United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), but it
still “is ‘entitled to respect’ ... to the extent it has the
‘power to persuade,’” Gonzales v. Oregon, 546 U.S. 243, 256
(2006) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)). We conclude the EEOC's position accords with the
language and purpose of the statute and relevant case law, and
we find its briefing and argument to be persuasive.
26
from interfering (through retaliation) with an employee’s
efforts to secure or advance enforcement of the Act’s basic
guarantees,” Darveau v. Detecon, Inc., 515 F.3d 334, 342 (4th
Cir. 2008) (quoting Burlington N., 548 U.S. at 63) (internal
quotation marks omitted), we also “must take care to respect any
differences in language and purpose between Title VII and the
FLSA” before adopting a rule from one to the other, Darveau, 515
F.3d at 342.
Here, those differences counsel against importing the
“manager rule” into Title VII. The FLSA’s anti-retaliation
provision prohibits discrimination against an employee “because
such employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to this chapter,
or has testified or is about to testify in any such proceeding,
or has served or is about to serve on an industry committee.”
29 U.S.C. § 215(a)(3). In contrast, Title VII makes it unlawful
for an employer to discriminate 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). Thus, the conduct protected by the FLSA is far more
constricted than the broad range of conduct protected by Title
VII’s anti-retaliation provision.
27
Supreme Court precedent also militates against restricting
the scope of Title VII’s anti-retaliation provision, which has
been held to “provide broad protection from retaliation,”
Burlington N., 548 U.S. at 67, and to cover a wide range of
conduct through which an employee communicates to an employer
the employee’s “belief that the employer has engaged in . . . a
form of employment discrimination,” Crawford, 555 U.S. at 276;
see also id. (observing that an employee’s communication to her
employer of a belief the employer has discriminated “virtually
always constitutes the employee’s opposition to the activity”)
(internal quotation marks omitted). While the Court indicated
in Crawford that there may be “eccentric” exceptions to the
sweeping protections of the Opposition Clause, such as “an
employee’s description of a supervisor’s racist joke as
hilarious,” neither in Crawford nor in subsequent cases has the
Court endorsed a categorical exception based on an employee’s
workplace duties. Id.The “manager rule” is also problematic when viewed in
conjunction with two other doctrines that restrict an employer’s
Title VII liability. First, under the balancing test adopted by
this Circuit in Armstrong v. Index Journal Co., 647 F.2d 441(4th Cir. 1981), an employer may not be liable under Title VII
if an employee’s conduct at work is sufficiently “insubordinate,
disruptive, or nonproductive.” Id. at 448. Applying this
28
doctrine in tandem with the “manager rule” thus would create a
dilemma for employees who would have to step outside the scope
of employment for their activity to be protected under Title
VII’s anti-retaliation provision, but would risk losing that
protection if the deviation from their job responsibilities
could be deemed sufficiently insubordinate or disruptive. See
Deborah L. Brake, Retaliation in the EEO Office, 50 Tulsa L.
Rev. 1, 31 (2014). We see no need to make plaintiffs walk a
judicial tightrope when the statutory scheme created by Congress
offers a clear path to relief.
Second, the Supreme Court has provided employers with an
affirmative defense under certain circumstances when an employee
fails to report and to take advantage of an employer’s internal
investigation processes. Faragher v. City of Boca Raton, 524
U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998). The Faragher/Ellerth defense thus
highlights the importance of employers’ internal procedures and
of their employees in EAP, HR, and legal departments who
facilitate the use of these procedures. Applying the “manager
rule” in the Title VII context would discourage these very
employees from voicing concerns about workplace discrimination
and put in motion a downward spiral of Title VII enforcement:
If they remain silent, victims of discrimination are less likely
to use their employers’ internal investigation mechanisms in the
29
first place, triggering the Faragher/Ellerth defense, and
allowing discrimination in the workplace to go undeterred and
unremedied. As the Supreme Court observed in a similar context
in Crawford, “[n]othing in the statute’s text or our precedent
supports this catch-22.” 555 U.S. at 279; see also Boyer-
Liberto¸ 786 F.3d at 283 (recognizing the need to “encourage the
early reporting vital to achieving Title VII’s goal of avoiding
harm”).
Carilion’s policy arguments do not change our view. While
Carilion harkens to Hagan, 529 F.3d at 628, to warn of a
“litigation minefield” without the “manager rule,” we find it
much more troubling that, under Carilion’s approach, the
categories of employees best able to assist employees with
discrimination claims—the personnel that make up EAP, HR, and
legal departments—would receive no protection from Title VII if
they oppose discrimination targeted at the employees they are
duty-bound to protect. See Boyer-Liberto, 786 F.3d at 283
(observing “effective [Title VII] enforcement could . . . only
be expected if employees felt free to approach officials with
their grievances”) (second alteration in original) (quoting
Burlington N., 548 U.S. at 66-67).
In rejecting the “manager rule” in the context of Title VII
retaliation claims, we join the only other Court of Appeals that
30
has addressed the issue in a precedential opinion. 8 In Johnson
v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000),
the Sixth Circuit held that the fact that the plaintiff, who was
an affirmative action official at the University of Cincinnati,
“may have had a contractual duty” to advocate for women and
minorities did not defeat a retaliation claim. The Johnson
court relied on the language of the Opposition Clause and the
EEOC Compliance Manual to determine that “the only qualification
that is placed upon an employee’s invocation of protection from
retaliation under Title VII’s Opposition Clause is that the
manner of his opposition must be reasonable.” Id. at 580. We
agree with the Johnson court that the “manager rule” would
“run[] counter to the broad approach used when considering a
claim for retaliation under [the opposition] clause, as well the
spirit and purpose behind Title VII as a broad remedial
8 The Tenth and Eleventh Circuits have adopted the “manager
rule” in the Title VII context in non-precedential unpublished
opinions. See Weeks v. Kansas, 503 F. App’x 640, 642 (10th Cir.
2012); Brush, 466 F. App’x at 787. Carilion also relies on EEOC
v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998), but the Eighth
Circuit merely acknowledged the employer’s argument that the
“manager rule” applied in the Title VII context and noted that
the rule was inapplicable, in any event, to the employee in that
case. None of these cases grapples with the differences between
the text of Title VII and the FLSA or considers the chilling
effects of the “manager rule” on the reporting of workplace
discrimination. We therefore do not find their analysis to be
persuasive.
31
measure.” Id. We therefore hold today that the “manager rule”
has no place in Title VII enforcement.
IV.
Pursuant to the foregoing, we reverse the judgment of the
District Court and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED
32