By Eric Benedict
On August 10, 2015, the Fourth Circuit Court of Appeals issued its published opinion in the civil case DeMasters v. Carilion Clinic. In DeMasters, the Fourth Circuit had to decide how to properly frame an employee’s conduct to determine whether it constituted ‘protected activity’ under Title VII of the Civil Rights Act of 1964 (“Title VII”). Additionally the Court had to decide if the “manager rule” from the Fair Labor Standards Act (“FLSA”) barred relief in the context of Title VII. The Fourth Circuit reversed the District Courts rulings that DeMasters did not engage in protected activity and that the “manager rule” precluded the suit.
DeMasters Conduct in the Employee Assistance Program
Carilion, a large healthcare organization, employed Neil DeMasters (“DeMasters”) through its “Employee Assistance Program” (“EAP”). In his role as an EAP, DeMasters met with an employee (“Doe”) who believed he was the subject of workplace sexual harassment by his manager. While the manager was promptly terminated for the harassment, Doe began to face harassment from other employees sympathetic to the Manager. DeMasters approached the Human Resources department at Carilion and criticized its handling of the subsequent harassment. Ultimately, Carilion settled a Title VII suit filed by Doe.
In the wake of the Title VII settlement, DeMasters was contacted by his employer to inquire into the role DeMasters had played in Doe’s path to litigation. DeMasters admitted that he thought Carilion handled the harassment poorly. Carilion ultimately terminated DeMasters, citing among other things, DeMasters’ failure to take a “pro-employer” position and “fail[ure] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.”
DeMasters’ Title VII Opposition Clause Retaliation Claim
After his termination, DeMasters filed a Title VII Retaliation suit in federal court alleging that he was terminated in violation of Title VII’s opposition clause. To establish a prima facie case under Title VII’s opposition clause, the employee must show, “(1) that [he] engaged in a protected activity…(2) that [his] employer took an adverse employment action…(3) that there was a causal link between the two events.” While the defendant conceded that DeMasters was terminated, satisfying the second element, it argued that DeMasters did not engage in protected activity and that therefore there was no causal link. The District Court agreed with Carilion and dismissed DeMasters’ complaint. The District Court reasoned that, “no individual activity in which DeMasters engaged by itself constituted protected oppositional conduct and that the so-called ‘manager rule,’” precluded relief.
The Fourth Circuit Evaluates Demasters’ Conduct as a Whole
The Fourth Circuit concluded that the court must, “examine the course of a plaintiff’s conduct through a panoramic lens, viewing the individual scene in their broader context and judging the pictures as a whole.” After reviewing the record, the court found that the course of DeMasters’ conduct, from reaching out to the HR department to sharing his opinion with Carilion’s HR manager, was sufficient to satisfy the first prong of the prima facie case. The court reasoned that, “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.”
The “Manager Rule” does not Apply to Title VII Retaliation Claims
Carilion also argued that the “manager rule” would prevent DeMasters from seeking protection. The “manager rule” is derived from Fair Labor Standards Act litigation. The rule requires an employee to “step outside his or her role of representing the company” before their activity can be protected. Here, DeMasters would have to step outside his role as an EAP before his conduct could be considered protected. The District Court decided that DeMasters’ conduct “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.” Citing the differences between the two statutes and the importance of encouraging employees to voice their concerns, the Fourth Circuit rejected this approach, holding that “[n]othing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description….” The court also explained that a contrary rule would leave those most equipped to help employees with their concerns, in this case EAPs, without protection. The court concluded that the manager rule does not apply to Title VII, and therefore did not preclude DeMasters’ suit.
The Fourth Circuit Reverses the District Court
Ultimately, the Fourth Circuit found that DeMasters could establish a prima facie case based on the entirety of his activity and that the manager rule does not apply to Title VII. The court, therefore, reversed the United States District Court for the Western District of Virginia and remanded the case to allow the suit to move forward.