J. DeMasters v. Carilion Clinic

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 7:12-cv-00580-MFU-RSB. [999637273]. [13-2278]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2278

J. NEIL DEMASTERS,
Plaintiff – Appellant,
v.
CARILION
CLINIC;
CARILION
BEHAVIORAL HEALTH, INC.,

MEDICAL

CENTER;

CARILION

Defendants – Appellees.
------------------------NATIONAL EMPLOYMENT LAWYERS
OPPORTUNITY COMMISSION,

ASSOCIATION;

EQUAL

EMPLOYMENT

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.

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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

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KRAUSE, Circuit Judge:
In

2011,

assistance

after

program

five

years

consultant

in

of

employment

Carilion’s

as

an

employee

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
that

he

Health,

was

Inc.

terminated

(collectively,
for

engaging

“Carilion”),
in

protected

claiming
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
from

responsibilities
seeking

included

protection

reporting

under

Title

discrimination
VII’s

claims

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

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place in Title VII jurisprudence, we will reverse and remand for
DeMasters to proceed with his suit.
I.
A.
DeMasters
assistance
healthcare
hospitals. 1

began

program

working

(“EAP”)

organization

in

July

consultant

that

owns

2006

as

an

for

Carilion,

and

employee
a

operates

large

several

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

hospital

manager
grounds,

had

masturbated

asked

display his genitals.

Doe

for

in

front

of

him

twice

oral

sex,

and

asked

Doe

on
to

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

1

Because 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

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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

investigation of Doe’s alleged sexual harassment.

the

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

permitted

Doe,
by

who

Doe’s

had

learned

department

that

director

hospital to collect his belongings.
another

meeting

meeting,

Doe

with

Doe

explained

for

that

the

the

he

to

harasser
come

had

back

to

been
the

DeMasters then scheduled
following

felt

day.

uncomfortable

At

that

with

the

department director and was facing increasing hostility from coworkers aligned with the harasser.
could

assist

Doe

with

this

To ascertain how best he

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
5

better

handle

the

situation,

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including by intervening to stop the hostile behavior by the
harasser’s friends.
calling

and

DeMasters followed through on this plan by

leaving

a

message

for

an

HR

representative

who

called him back the next day.
In

that

conversation,

representative
harassing

was

aware

behavior

from

after

that

his

Doe

confirming
was

that

being

co-workers,

the

HR

subjected

to

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

his

later,

behavior

Doe

was

reported

getting

to

worse,

DeMasters
that

he

that
was

co-workers’

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.
however,

one

of

Carilion’s

managers

called

In 2010,

DeMasters

and

informed him that Doe had filed a Title VII complaint with the
Equal

Employment

Opportunity

Commission
6

(“EEOC”)

and

was

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pursuing a civil suit for sexual harassment against Carilion.
In

that

conversation,

involvement

with

the

Doe’s

manager

pressed

harassment

DeMasters

complaint.

on

his

DeMasters

acknowledged that Doe had been to the EAP but did not reveal any
details

of

complaints.

DeMasters’

own

involvement

with

Doe’s

internal

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

insubordinate and would be terminated.

would

be

considered

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.”
7

J.A. 32.

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The

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EAP

Filed: 08/10/2015

department

“fail[ing]

to

Two

days

director

protect

operation at risk.”

Pg: 8 of 32

likewise

Carilion”

and

accused

DeMasters

“plac[ing]

the

of

entire

Id.

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.

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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

2

discrimination

did

not

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.

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constitute

purposive

employer,
merely

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Carilion;

reflected

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communications
(2)

DeMasters’

transmissions

DeMasters’

own

opposition

DeMasters’

criticisms

of

of

to

from

communications
Doe’s

unlawful

the

DeMasters

way

to

to

Doe’s

Carilion

complaints

and

not

activity;

and

(3)

handled

the

Carilion

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,

jurisdiction under 28 U.S.C. § 1291.
Court’s

dismissal

de

novo,

and

we

have

appellate

We review the District

accepting

all

well-pleaded

allegations of the complaint as true and drawing all reasonable
inferences

therefrom

in

favor

of

the

plaintiff.

United States, 120 F.3d 472, 474 (4th Cir. 1997).

Ibarra

v.

Like the

District Court, we consider whether the complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim
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to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

556

Atlantic

U.S.

662,

678

(2009)

(quoting

Bell

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. § 2000e2(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

3

events.”

Boyer-Liberto

v.

The 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.

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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.
District

Court

erred,

first,

by

We conclude that the
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

retaliation claim.

rule”

to

DeMasters’

Title

VII

We address these issues in turn.
A.

The

District

communications

in

Court
a

examined

discrete

each

fashion,

of

DeMasters’

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
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made an unlawful employment practice” by Title VII.
2000e-3(a).
context

by

The

Supreme

looking

antagonize . . . ;

to
to

Court

its

has

defined

ordinary

contend

“oppose”

meaning:

against;

42 U.S.C. §

to

“to

in

this

resist

confront;

or

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.”
at

276

(internal

quotation

marks

Crawford, 555 U.S.

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
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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

2000e-3(a),
Liberto

made

employment
employee

this

Circuit’s

clear

practice”
is

practice”

that

under

recent

we

protected

en

should

broadly.

786

when

Title

she

VII,

banc
also

F.3d

42

opinion
interpret

at

opposes

282.
‘not

U.S.C.
in

§

Boyer-

“unlawful
Thus,

“an

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

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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.
contrary,

as

the

Third

42 U.S.C. § 2000e-3(a).

Circuit

has

observed

in

On the

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

similarly,

a

scenes

but

only

discrimination

on

its

analysis

entire
must

performance,

concentrate

individual incidents, but on the overall scenario.”
F.3d

at

346

(second

alteration

in

internal quotation marks omitted).

original)

not

and
on

Moore, 461

(citations

and

Likewise, in Collazo, where

the plaintiff had arranged meetings with the HR department for a
co-worker

and

then

company’s

ongoing

complained
internal

to

HR

about

investigation

problems

of

the

with

his

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

protected opposition activity.

that

complaint”

constituted

Id. at 43-44, 47.

This holistic approach is also consistent with the broad
remedial

purpose

of

Title

VII:
15

to

root

out

the

“cancer

[of

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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)).
the

retaliation

context,

where

This is particularly so in

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
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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

protected oppositional activity.

that

he

engaged

in

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

investigated the complaint.

on

Doe’s

behalf

as

Carilion

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

hostility

from

co-workers

DeMasters

consulted

with

that

Doe

was

who

sympathized

his

EAP

facing
with

colleagues

the
and

increasing
harasser,
formulated

another plan to try to draw Carilion’s attention to the hostile
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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.
when

Doe

reported

intensifying,
mishandling

that

DeMasters
the

the

hostile

shared

matter

not

his

environment

opinion

only

with

concluded

these

that

Doe

And

was

only

Carilion

but

also

was
with

Carilion’s HR manager.
The
reflect

District
protected

complain[ing]
unlawful

Court

activity

himself

employment

of

because

workplace

practices”

and

allegations
DeMasters,

“not

or

other

ferrying

Doe’s

allegations to Carilion’s human relations department,”
engage in “purposive conduct.”
requirement,

the

District

J.A. 93, 96.

Court

relied

not

by

discrimination
“[m]erely

did

did not

In imposing this

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

4

Pitrolo v. Cty. of

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)
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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

concern
(for

that

extending

example,

opposition

reflected

to

“by

“purposive

the

employees

their

conduct,”

definition
who

employers”)

to

never

and

“silent

expressed

would

be

expressed
opposition”
a

word

excessive

of
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).
5

We 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)
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“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

purposive,”

he

Clause
was

in

to
full

conduct
agreement

that
with

was

“active

and

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.

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“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
a

threshold

protected

Collazo, 617 F.3d at 47.

requirement

under

the

that

conduct

Opposition

Clause,

be

Thus, even assuming
“purposive”

DeMasters’

to

be

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.

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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

minimum,

he

that

were

“reasonably

“actually

unlawful”

believe[d]

to

be

or

that,

unlawful,”

at

a

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

criticism

of

extent

the

Carilion’s

District

Court

investigation

focused
or

on

handling

DeMasters’
of

Doe’s

complaints, as opposed to the hostile environment resulting from
those activities, it again framed the issue too narrowly.
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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.”
persuasive.

Id. at 786.

Whatever

weight

it

We do not find Brush to be
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

isolated

incident

that

hostile

a

protected
of
work

from

harassment

retaliation
when

environment

is

she
in

for

opposing

an

reasonably

believes

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.

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also

sufficiently

have

no

pleaded

Pg: 24 of 32

difficulty

the

third

concluding

and

DeMasters

remaining

only

that

contested

element—a causal connection between that protected activity and
the

termination

firing

him,

of

DeMasters’

Carilion’s

employment.

management

Two

objected

days

to

before

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.”
32.

In

the

termination,

very

letter

Carilion

that

reiterated

purported
that

to

J.A. 31-

justify

DeMasters

had

his
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

argument,
against

client

Carilion

DeMasters

company.”

seemed
for

to

his

J.A.

acknowledge

opposition

32.
that

activity,

Even
it

at

oral

retaliated

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
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that activity and the termination of his employment.

DeMasters’

complaint

under

the

held,

the

thus

Opposition

states

Clause

a

claim

unless,

as

for

the

retaliation

District

Court

“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

protected activity.

the

company”

in

order

to

engage

in

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
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(D.S.C. Mar. 2, 2012); Hill v. Belk Stores Servs. Inc., No. 06398, 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.

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interfering

efforts

to

secure

(through
or

Pg: 27 of 32

retaliation)

advance

enforcement

with
of

an
the

employee’s
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,
“manager

those

rule”

differences

into

Title

counsel

VII.

The

against
FLSA’s

importing

the

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,
2000e-3(a).

or

hearing

under

this

subchapter.”

42

U.S.C.

§

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.
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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).
in

Crawford

sweeping

that

there

protections

employee’s

of

description

may

be

the
of

While the Court indicated

“eccentric”

Opposition
a

exceptions

Clause,

supervisor’s

racist

the

as

“an

joke

such

to

as

hilarious,” neither in Crawford nor in subsequent cases has the
Court endorsed a categorical exception based on an employee’s
workplace duties.
The

Id.

“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.”
28

Id.

at

448.

Applying

this

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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

protection

if

the

provision,

deviation

from

but

would

their

job

risk

losing

that

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

facilitate the use of these procedures.
rule”

in

the

Title

VII

context

would

legal

departments

who

Applying the “manager
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
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triggering

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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.
Carilion

harkens

to

Hagan,

529

F.3d

at

628,

to

While

warn

of

a

“litigation minefield” without the “manager rule,” we find it
much

more

categories

troubling
of

that,

employees

under

best

able

Carilion’s
to

assist

approach,
employees

the
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

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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

agree

with

the

Johnson

court

that

the

that

the

Id. at 580.

manner of his opposition must be reasonable.”

We

“manager

is

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

8

VII

as

a

broad

remedial

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

Appeal: 13-2278

Doc: 57

measure.”

Id.

Filed: 08/10/2015

Pg: 32 of 32

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