On August 10, 2015, the U.S. Court of Appeals for the Fourth Circuit issued a unanimous opinion in favor of the plaintiff J. Neil DeMasters in DeMasters v. Carilion Clinic, Inc., No. 13-2278. DeMasters worked for Carilion, a large healthcare organization, and alleged 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.” Judge Cheryl Ann Krause wrote for the court, which held that the district court erred in (1) examining DeMasters’ conduct as a series of discrete incidents rather than as part of a continuous course of oppositional conduct to the employer’s decisions, and (2) applying the “manager rule,” which exempts managers acting in the course of their counseling duties from retaliation protection under the Fair Labor Standards Act (FLSA). NELA filed an amicus curiae brief in support of the plaintiff drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Pennsylvania State University Dickinson School of Law Civil Rights Appellate Clinic. NELA members Terry N. Grimes and Brittany Michelle Haddox, Terry N. Grimes, PC, successfully litigated the case for plaintiff.
DeMasters began working in July 2006 as an Employee Assistance Program (EAP) consultant for Carilion Clinic counseling employees. In October 2008, employee John Doe confided to DeMasters that Doe was being sexually harassed. DeMasters, with Doe’s consent, contacted Carilion’s human resources (HR) department to report the harassment and initiate an investigation. After the harasser was terminated, Doe complained to DeMasters that Doe faced hostility from the department director and co-workers friendly with the harasser. DeMasters consulted with his EAP colleagues who suggested that DeMasters contact HR to offer suggestions about how it might better respond to the situation. DeMasters called HR, but his offer of assistance was rebuffed. Thereafter, Doe reported to DeMasters that the hostility was escalating. DeMasters told Doe, in his opinion, Carilion management and HR had mishandled Doe’s complaint. DeMasters also contacted the HR manager and complained that Doe’s concerns were not being managed properly.
Two years later, a Carilion manager informed DeMasters that Doe had filed a Title VII complaint with the Equal Employment Opportunity Commission and was pursuing a civil suit against Carilion. In August 2011, shortly after Doe’s lawsuit was settled, DeMasters was called to a meeting by Carilion managers and questioned about his involvement with Doe’s harassment complaint. He was asked why he did not take the “pro-employer side” concerning Doe’s complaints and told that he had not protected Carilion’s interests, which left it in a compromised position. Two days later, DeMasters was fired for “fail[ing] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.” DeMasters’ direct supervisor told him that Carilion was angry at having to settle Doe’s lawsuit and wanted to “throw somebody under the bus.” After his termination DeMasters filed suit alleging that he was terminated in retaliation for opposing an unlawful employment practice in violation of Title VII.
The trial court dismissed the complaint, holding that DeMasters’ did not meet his burden of demonstrating that he engaged in a protected activity under Title VII’s Opposition Clause, because the conversations between DeMasters and Doe did not constitute purposive communications to Carilion; DeMasters’ communications to Carilion merely reflected transmissions of Doe’s complaints; and DeMasters’ criticisms of Carilion did not oppose conduct unlawful under Title VII. Additionally, even if DeMasters’ activity was protected, the so-called manager rule exempted him from coverage because he was acting within the scope of his job duties as an EAP consultant in counseling Doe and communicating with Carilion.
The appellate court disagreed resoundingly, finding that the lower court engaged in an overly narrow reading of Title VII’s Opposition Clause by looking at each of DeMaster’s communications in a discrete fashion, and analyzing them separately instead of as part of a whole course of conduct. The court stated that neither the text nor purpose of Title VII is served by parsing a continuous course of oppositional conduct into individual acts and assessing those acts in isolation. Rather, what is required is a “holistic approach … consistent with the broad remedial purpose of Title VII: to root out the ‘cancer of discrimination in the workplace.’” The court went on to say that nothing in the language of the statute “supports a myopic analysis under which an employee’s opposition must be evaluated as a series of discrete acts.”
The Court of Appeals also disagreed with the trial court that the “manager rule” excluded DeMasters from protection under Title VII’s anti-retaliation provision. The “manager rule” is based on an interpretation of the FLSA’s anti-retaliation provision where courts have held that if it is part of an employee’s regular duties to counsel and communicate the concerns of other employees, then engaging in these activities do not constitute protected activity. The court in DeMasters held that this exception should not be imported into Title VII. It explained that “the conduct protected by the FLSA is far more constricted than the broad range of conduct protected by Title VII’s anti-retaliation provision.” In reaching this decision the court found unpersuasive Carilion’s arguments that bypassing the “manager rule” would lead to a “litigation minefield.” To the contrary, the court was concerned that such an approach would be harmful—leading to a situation in which employees like DeMasters would “receive no protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect.”
Read NELA's amicus brief
Opinion: DeMasters v. Carilion Clinic, Inc., No. 13-2278