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