On March 26, 2012, the US Court of Appeals for the Eleventh Circuit issued its decision in Brush v. Sears Holdings Corp., affirming the dismissal of a lawsuit alleging retaliation under Title VII. The key litigated issue was whether the plaintiff, who was terminated after she criticized her employer's internal investigation of a sexual harassment claim, had engaged in protected activity under Title VII.

Plaintiff Janet Brush worked for Kmart, a subsidiary of Sears Holding Corporation (Sears). In her position as a Loss Prevention District Coach, she was responsible for minimizing various risks to her employer, including, among other things, by protecting its employees. In that capacity, she received a complaint from an Assistant Store Coach alleging sexual harassment by a Store Coach. At Sears' direction, Brush and another employee interviewed the Assistant Store Coach to investigate the complaint. Brush then followed up with a one-on-one interview with the Assistant Store Coach to collect more information about the complaint. At this meeting, the Assistant Store Coach alleged that the Store Coach had forcibly raped her multiple times, but she noted that she did not want police involvement. Brush notified management and insisted that the police be called. Sears did not call the police, but fired the Store Coach. Brush continued to advocate that the alleged rape be reported.

Brush was fired shortly after her complaints about the investigation for violations of Sears' policy on investigating sexual harassment claims. After receiving a right-to-sue letter with a reasonable cause finding from the EEOC, Brush sued Sears, alleging that she was terminated in retaliation for opposing the "nature and performance" of Sears's investigation. The district court dismissed the case. Brush appealed to the Eleventh Circuit.

The Eleventh Circuit affirmed the lower court's decision, holding that criticism of an employer's internal investigation is not protected activity under Title VII.

Generally, Title VII prohibits retaliation against an employee for opposing an unlawful employment practice or for participating in an investigation, proceeding or hearing. In this appeal, Brush sought relief only under the "opposition clause." However, the court held that Brush's disagreement with the way Sears investigated the allegations of sexual harassment and rape was not protected activity under Title VII because she did not oppose an unlawful employment practice. To support this finding, the court looked to other Eleventh Circuit decisions holding that internal investigations are not unlawful discriminatory practices in themselves (for example, see Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287 (11th Cir. 2007)).

Citing the US Supreme Court's decision in Crawford v. Metropolitan Government, Brush also argued that her role in reporting a Title VII violation qualified as protected activity relating to a discriminatory practice. In dismissing this argument, the court adopted the "manager rule," which holds that a manager's disagreement, in the course of performing his regular job duties, with an employer's actions does not constitute protected activity under Title VII (McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir. 1996)). The court then held that Brush was acting solely as a manager in investigating the claims of sexual harassment, and that her opposition to Sears' internal investigation procedures was not protected activity under Title VII.

Employers should note that, at least in the Eleventh Circuit, a manager's complaints about internal procedures related to his regular job duties are not protected activity under Title VII, even if they relate to an investigation of another employee's sexual harassment claim. This case is particularly noteworthy in light of recent cases expanding the scope of retaliation claims that may be brought under Title VII and other statutes (for example, see Thompson v. North American Stainless, LP).