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Court Views Oppositional Conduct as a Whole and Rejects Managers Rule in Title VII Retaliation Case: Fourth Circuit
Practical Law Legal Update 4-618-0776 (Approx. 6 pages)
Court Views Oppositional Conduct as a Whole and Rejects Managers Rule in Title VII Retaliation Case: Fourth Circuit
by Practical Law Labor & Employment
| Published on 14 Aug 2015 • USA (National/Federal) |
In DeMasters v. Carilion Clinic, the US Court of Appeals for the Fourth Circuit held that assessing whether an employee engaged in oppositional activity for purposes of establishing a Title VII retaliation claim requires a court to consider the employee's course of conduct as a whole. The court also held that the manager's rule, which precludes certain employees with discrimination-reporting responsibilities from pursuing retaliation claims, does not apply to Title VII cases.
On August 10, 2015, in DeMasters v. Carilion Clinic, the US Court of Appeals for the Fourth Circuit reversed the district court's dismissal of an employer's retaliation claim on two grounds. The court first held that assessing whether an employee engaged in oppositional activity for purposes of establishing a Title VII retaliation claim requires a court to consider the employee's course of conduct as a whole, rather than evaluating individual incidents. The court also held invalid the manager's rule that precludes certain employees with discrimination-reporting responsibilities from pursuing retaliation claims. The court found that the manager's rule, adopted from FLSA precedent, has no place in Title VII cases. (No. 13-2278, (4th Cir. Aug. 10, 2015).)
Background
J. Neil DeMasters worked as an employee assistance program (EAP) consultant for Carilion, a large healthcare organization. In 2008, DeMasters reported to Carilion's human resources (HR) department on behalf of a male employee (referred to as John Doe) that the employee had been sexual harassed by his manager. Carilion investigated and terminated the department manager.
Doe later complained to DeMasters about continued harassment and retaliation by his coworkers for making his original complaint. DeMasters intervened on Doe's behalf, and told Carilion's management and HR department that Carilion was mishandling Doe's complaints.
Doe sued Carilion and obtained a settlement. After the settlement, Carilion managers met with DeMasters, who acknowledged telling Doe in 2008 that Doe had been sexually harassed and that he believed Carilion was mishandling Doe's complaints. Carilion's managers criticized DeMasters for his handling of the matter. Shortly after the meeting Carilion terminated DeMasters because DeMasters had:
- Failed to act in Carilion's interests.
- Left Carilion in a compromised position.
- Made statements that likely led Doe to conclude that he should sue Carilion.
DeMasters sued Carilion for violating Title VII's anti-retaliation provision, claiming he was fired for opposing Carilion's unlawful employment practices. The district court granted Carilion's motion to dismiss, finding that:
- DeMasters's actions did not amount to protected oppositional activity.
- Even if DeMasters engaged in protected activity, DeMasters was acting within the scope of his job duties when he counseled Doe and communicated with Carilion. Therefore his claim was barred under the manager's rule.
DeMasters appealed to the Fourth Circuit.
Outcome
The Fourth Circuit reversed the district court's dismissal of DeMasters's complaint, holding that:
- A court must consider an employee's entire course of conduct, not just isolated activities, when assessing whether an employee engaged in protected oppositional activity for purposes of establishing a Title VII retaliation claim.
- The manager's rule that precludes certain employees with discrimination-reporting responsibilities from pursuing retaliation claims is invalid in the context of Title VII cases.
The Opposition Clause
The opposition clause of Title VII's anti-retaliation provision prohibits employers from retaliating against employees for opposing any practice that is unlawful under Title VII. The clause also protects employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing" under the statute. (42 U.S.C. § 2000e-3(a)).
Relying on US Supreme Court precedent and decisions from other federal circuit courts that have broadly interpreted what constitutes oppositional conduct, the Fourth Circuit found that:
- Meeting the threshold for showing oppositional conduct is not difficult.
- An employee's communication to the employer that the employer has engaged in a form of employment discrimination "virtually always" constitutes oppositional conduct (Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)).
- A "holistic" and "panoramic" approach to the opposition clause in which a court examines the employee's entire course of conduct instead of looking at each discrete action is consistent with the broad remedial purpose of Title VII (Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4th Cir. 2015) (en banc)).
The Fourth Circuit adopted this broad view of the oppositional clause and held that DeMasters's course of conduct as a whole constituted protected oppositional conduct sufficient to support a retaliation claim under Title VII, finding that:
- DeMasters, over time, clearly and effectively conveyed to Carilion his belief that Carilion was violating Title VII in handling Doe's sexual harassment matter, including by:
- becoming Doe's primary adviser and advocate;
- generating a plan with Doe to report the harassment and initiate an investigation by Carilion;
- speaking directly with Carilion's management on Doe's behalf;
- relaying Doe's complaint to management, leading to the harasser's termination; and
- conveying his opinion to Carilion's management and HR department that Carilion was mishandling the matter.
- There was a sufficient nexus between DeMasters's protected activity and Carilion's termination of his employment.
The Manager's Rule
The Fourth Circuit also rejected Carilion's defense based on the manager's rule, noting that:
- The rule was first applied by other circuit courts in the context of FLSA retaliation claims, and required an employee to step outside his role as company representative 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)).
- Title VII's anti-retaliation provisions protect a broader range of conduct than the FLSA.
- Although the rule has been applied by some district courts in Title VII retaliation cases (for example, Rice v. The Spinx Co.), it had not been applied to Title VII cases by any circuit court in a precedential published opinion (No. 10-1622, (D.S.C. Mar. 2, 2012)).
The court concluded that the manager's rule did not apply to Title VII cases because:
- Title VII contains no exclusion for managers from anti-retaliation protection, and addresses a wide range of ways by which employees communicate to their employer that the employer is engaging in employment discrimination (Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Crawford, 555 U.S. at 276.)
- The manager's rule is inconsistent with other Title VII doctrines that limit an employer's liability, including the Faragher-Ellerth defense, which provides employers with an affirmative defense when an employee fails to report and take advantage of an employee's internal investigation processes. The manager's rule in Title VII cases would discourage internal reporting and regularly trigger employers' ability to use the defense (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 US Court of Appeals for the Sixth Circuit reached the same conclusion (Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)).
Practical Implications
The Fourth Circuit's decision in DeMasters establishes that:
- In Title VII cases, courts view the anti-retaliation provision's opposition clause broadly by looking at an employee's course of conduct as a whole, and not at each of the employee's discrete activities.
- The manager's rule does not apply to Title VII cases in the Fourth Circuit.
The takeaway for employers in this circuit is that they should:
- Take seriously all employee complaints regarding discrimination and harassment, including those complaints conveyed by an intermediary such as a manager.
- Not take adverse actions against managers for assisting, or advocating on behalf of, employees who lodge harassment or discrimination complaints, including when those complaints develop into costly legal action against the employer.