4th Circuit: "Management" Employees also Protected from Title VII Retaliation

Posted by Sean P. CecilAug 11, 20150 Comments

Ruling that the so-called "manager rule" has no place in Title VII (Discrimination on the basis of Race, Sex, Color, National Origin, Religion) jurisprudence, the 4th Circuit reversed an order granting summary judgment to a company that fired an employee for assisting a worker with a sexual harassment complaint. 

The plaintiff in DeMasters v. Carilion Clinic was a employee assistance program consultant who was contacted by an employee who revealed that his department manager had sexually harassed him for several months, including such outrageous workplace  conduct as masturbating in front of him, asking for oral sex, and asking the employee to display his genitals. After listening to the worker's complaint, DeMasters told him he was  victim of sexual harassment in violations of the company's sexual harassment policy, helped him form a plan to report the harassment and facilitate investigation of the complaint, and obtained a release form allowing DeMasters to discuss the harassment complaint directly with the company's HR department. 

The harasser was fired, but the worker (John Doe) again contacted DeMasters and complained that he was facing increased hostility from workers who aligned with his harasser. DeMasters offered his opinion that the company was not properly handling the complaint, and again reached out to company management to tell them that. 

Doe filed an EEOC complaint, unbeknownst to DeMasters until two years late when he was contacted by one of the company's managers. After the case settled, DeMasters was questioned by a  large group of management officials, and after admitting that he told Doe that he was a victim of sexual harassment, was chided for not taking the employer's side, and leaving the company "in a compromised position." Two days later, he was fired, in a letter stating that he had “fail[ed] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.” He received another letter from the EAP director stating that he was being fired because:

 (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.” 

DeMasters filed a charge of discrimination with the EEOC, and after receiving a notice of right to sue, filed a lawsuit claiming 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).

The trial court granted the company's motion to dismiss, ruling that DeMasters failed to raise plausible allegations that he engaged in protected activity in consulting with Doe regarding sexual harassment and in his communications with the company regarding how they were handling the complaint,. The court also cited the "manager rule" as a reason to dismiss- under that rule even if the activity were otherwise protected, DeMasters could not avail himself of the protection because he was acting within the scope of his job duties as an EAP consultant in counseling DOE and communicating with Carilion.  

In order to establish a facially valid Title VII retaliation claim a plaintiff must demonstrate:

1. That he engaged in a protected activity; 

2. That his employer took adverse action against him; and

3. There was a causal event between the protected activity and the adverse action. 

The Court of Appeals reversed the District Court's dismissal, ruling that the 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. 

The court began by citing authority that the "Opposition Clause" in Title VII should be read very broadly: “[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.” citing Crawford, 555 U.S. at 276. The panel held that the complaint sufficiently described activities that fell within the opposition clause (of course, evaluating the allegations as true and drawing all reasonable inferences in the plaintiff's favor, as is appropriate at these early stage defense motions to dismiss). 

The court then turned to the "manager rule", which is a product of Fair Labor Standards Act law, and basically holds that management officials who are basically just doing their jobs in responding to FLSA claims can not then claim to have been engaged in protected activity. The 4th Circuit here agreed with DeMasters and the EEOC, that the "manager" rule does not apply to Title VII, noting that nothing in the language of the law indicates that it only protects employees based on their job description or that it intended to exclude large categories of workers from its anti-retaliatory protections. The court also noted "the conduct protected by the FLSA is far more constricted than the broad range of conduct protected by Title VII's anti-retaliation provision."

This ruling is important, as it is only the second Circuit Court of Appeals to issue whether a precedential decision regarding whether the management rule should apply to Title VII/EEOC cases. 

If you have experienced discrimination or retaliation for opposing discrimination in the workplace, the North Carolina employment lawyers at Edelstein & Payne are available for consultation and representation. The best way to initiate a consultation is by filling out the contact form on our employment law page