KRAUSE, Circuit Judge:
In 2011, after five years of employment as an employee assistance program consultant in Carilion's behavioral health unit,
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.
After hearing Doe out, DeMasters opined that Doe was a victim of sexual harassment in violation of Carilion's sexual 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
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 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. 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
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).
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 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.
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
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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (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. 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.
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 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
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 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 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
This holistic approach is also consistent with the broad remedial purpose of Title VII: to root out the "cancer [of 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, 126 S.Ct. 2405); see also Thompson, 562 U.S. at 174, 131 S.Ct. 863 ("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, 126 S.Ct. 2405). 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 her employer a belief that the employer has engaged in ... a form of employment discrimination," Crawford, 555 U.S. at 276, 129 S.Ct. 846; 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, 129 S.Ct. 846. 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 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.
We need not decide today on the vitality of a "purposive[ness]" requirement,
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."
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, 129 S.Ct. 846, 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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (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 District Court relied heavily on Brush v. Sears Holdings Corp., 466 Fed.Appx. 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
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 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.
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
DeMasters and the EEOC
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.
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, 126 S.Ct. 2405, 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, 129 S.Ct. 846; see also id. (observing that an employee's
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 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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (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 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, 129 S.Ct. 846; 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, 126 S.Ct. 2405).
In rejecting the "manager rule" in the context of Title VII retaliation claims, we
Pursuant to the foregoing, we reverse the judgment of the District Court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED