DeMasters v. Carilion Clinic et al
Filing
37
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 9/17/13. (tob)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
J. NEIL DEMASTERS,
Plaintiff,
v.
CARILION CLINIC, et al.,
Defendants.
)
)
)
)
Civil Action No 7:12-cv-580
)
) By: Michael F. Urbanski
)
United States District Judge
)
MEMORANDUM OPINION
This matter is before the court on defendants’ motion to dismiss plaintiff’s amended
complaint (Dkt. # 23). Plaintiff alleges that he was retaliated against for actions he took in
connection with another employee’s workplace discrimination claims, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000. The issues have been fully briefed, and oral
argument was held on July 19, 2013. Because plaintiff’s allegations do not state a plausible
claim that he was retaliated against for his participation in another’s Title VII complaint or for
his communicated, purposive opposition to workplace discrimination, defendants’ motion must
be GRANTED and the amended complaint dismissed.
I.
Plaintiff J. Neil DeMasters (“DeMasters”) worked as an Employee Assistance Program
(EAP) consultant in Carilion’s1 behavioral health unit from July 2006 until his termination in
August 2011. Am. Compl., Dkt. # 21, at ¶ 11. Following his termination, DeMasters filed suit
against Carilion, claiming Carilion fired him in retaliation for his involvement with John Doe,
another Carilion employee who brought a Title VII claim against Carilion. Id. at ¶ 35.
1
Defendants Carilion Clinic, Carilion Medical Center, and Carilion Behavioral Health, Inc. will be referred to
herein collectively as “Carilion.”
DeMasters first met Doe on October 17, 2008 after Doe received a referral to the Carilion
EAP. Id. at ¶ 12. Doe complained to DeMasters that Doe’s supervisor had been sexually
harassing him for several months. Id. DeMasters told Doe that “it appeared to [DeMasters] that
Doe was a victim of sexual harassment in violation of Carilion’s sexual harassment policy.” Id.
at ¶ 13. DeMasters reviewed the steps of Carilion’s sexual harassment policy with Doe and
suggested a plan to report the harassment. Id. Doe signed a release giving DeMasters
permission to speak directly with Carilion’s human resources department. Id. DeMasters
indicated his plan to contact the human resources department regarding Doe’s concerns. Id. The
same day, DeMasters contacted Carilion’s human resources department and “relayed the
substance of Doe’s harassment claim.” Id. at ¶ 14. Carilion’s human resources representative
told DeMasters that she would follow up with Joe Baer, Carilion’s human resources manager,
and would contact Doe. Id. In fact, Carilion’s human resources department did contact Doe and
took his statement. Id. at ¶ 15. Carilion promptly terminated Doe’s harasser.
Doe then began to express concerns to DeMasters about retaliation by Carilion for his
complaints. Id. On October 23, 2008, Doe called DeMasters to complain that although Carilion
had fired the harasser, he had been allowed back into the hospital to retrieve personal belongings.
Id. at ¶ 16. The next day, October 24, 2008, Doe met with DeMasters, indicating that he felt
uncomfortable with his unit director “and was facing increasing hostility from coworkers who
were sympathetic with or friends of the harasser.” Id. at ¶ 17.
On October 27, 2008, DeMasters met with colleagues in the EAP to discuss Doe’s
ongoing problems. Id. at ¶ 18. During the meeting, it was agreed that DeMasters would contact
Carilion’s human resources department “again to offer insight as to how Carilion might intervene
with the department director in an effort to stop the hostile work environment.” Id. On October
2
28, 2008, human resources manager Joe Baer returned DeMasters’ call, indicating that “he had
already spoken with Doe, who had also reported the harassment. DeMasters also offered Baer
EAP services with respect to coaching the department director as to how human resources might
better respond to Doe’s complaints. Instead of accepting DeMasters’ offer, Baer declined and
stated that he would speak with the unit director directly.” Id. at ¶ 20.
On October 31, 2008, Doe expressed to DeMasters continued frustration as to Carilion’s
lack of response to his concerns. Doe also spoke to one of DeMasters’ EAP colleagues on the
same subject later that day. Id. Roughly two weeks later, Baer contacted DeMasters and said
that he was working with Doe’s department director regarding an appropriate response to Doe’s
complaints. Id. at ¶ 23. At some point during the course of their interactions, DeMasters told
both Doe and Baer that Carilion was mishandling Doe’s complaints. Id. at ¶ 24.
Two years passed without any further involvement by DeMasters in any of the issues
concerning Doe. On December 14, 2010, a Carilion manager called DeMasters, indicating Doe
had filed a complaint with the EEOC and was “pursuing a civil suit for sexual harassment against
Carilion.” Id. at ¶ 25. During that conversation, DeMasters acknowledged that Doe had been
seen by him in the EAP two years earlier but did not reveal any of the details of the counseling
he had provided. Id. at ¶ 25.
Unbeknownst to DeMasters, Doe in fact had pursued a discrimination charge with the
EEOC in the intervening period. Doe received a right to sue letter and filed suit against Carilion
on October 28, 2010. Id. at ¶ 26. The parties resolved Doe’s Title VII claim against Carilion,
and an order of dismissal was entered July 14, 2011. Id.
Shortly after the settlement of Doe’s suit, on August 8, 2011, Carilion called DeMasters
to a meeting with “department director Mark Derbyshire, vice president of human resources
3
Jeanne Armatrout, and Carilion’s corporate counsel.” Id. at ¶ 27. Carilion questioned
DeMasters regarding his involvement with Doe in 2008. DeMasters stated that he had told Doe
“that what had happened to him was sexual harassment.” Id. at ¶ 28. DeMasters was questioned
as to why he had not taken the “pro-employer side,” id. at ¶ 28, and was told that “he had not
protected Carilion’s interests and that plaintiff’s conduct had left Carilion ‘in a compromised
position.’” Id. at ¶ 29. On August 10, 2011, DeMasters received a letter “stating that plaintiff
had ‘fail[ed] to perform or act in a manner that is consistent with the best interests of Carilion
Clinic’” and indicating his employment was terminated. Id. at ¶ 31. In a subsequent January 16,
2012 letter, department director Mark Derbyshire told DeMasters that his comments to Doe
“could have reasonably led [Doe] to conclude that he should file suit against Carilion,” and that
DeMasters “failed to perform or act in a manner that is consistent with the best interests of
Carilion.” Id. at ¶ 32. Derbyshire stated that DeMasters’ actions placed the entire operation at
risk. Id. at ¶ 32.
Carilion argues these allegations raised in DeMasters’ amended complaint are insufficient
to state a plausible claim for retaliation under Title VII. The court agrees.
II.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain sufficient factual matter which, accepted as true, “state[s] a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard requires a plaintiff
to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. When
ruling on a motion to dismiss, the court must “accept the well-pled allegations of the complaint
as true” and “construe the facts and reasonable inferences derived therefrom in the light most
4
favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). While the
court must accept as true all well-pleaded factual allegations, the same is not true for legal
conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Determining whether a
complaint states a plausible claim for relief is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679.
III.
To establish a prima facie case of retaliation under Title VII, a plaintiff must prove three
elements: “(1) that [he] engaged in protected activity, (2) that an adverse employment action
was taken against [him], and (3) that there was a causal link between the protected activity and
the adverse employment action.” Laughlin v. Metro Washington Airports Auth., 149 F.3d 253,
258 (4th Cir. 1998) (citing Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th Cir.
1996)). “Protected activity under Title VII is divided into two categories, opposition and
participation.” Id. at 257. The statute provides in pertinent part:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . 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). In short, “[a]n employer may not retaliate against an employee for
participating in an ongoing investigation or proceeding under Title VII, nor may the employer
take adverse employment action against an employee for opposing discriminatory practices in
the workplace.” Laughlin, 149 F.3d at 259. Participation includes “(1) making a charge [with
the EEOC]; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation,
proceeding, or hearing under Title VII.” Id. (citing 42 U.S.C. § 2000e-3(a)). “Opposition
5
activity 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.”
Id. (citing Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981)).
DeMasters bears the initial burden of establishing a prima facie case of retaliation.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The primary issue before the
court is whether DeMasters’ alleged activity meets the first element of Title VII retaliation: that
DeMasters engaged in protected activity. DeMasters argues the Supreme Court has interpreted
retaliation under Title VII broadly and that this court should find DeMasters’ activity to be
protected. Pl.’s Opp. Br., Dkt. # 27, at 7. On brief and at oral argument, DeMasters argued that
his activity warrants protection under both the participation and opposition clauses. Thus, the
court analyzes DeMasters’ activity under each of those clauses.
A.
DeMasters argues that participation clause protection extends to “persons who have
participated in almost any manner in Title VII proceedings.” Pl.’s Opp. Br., Dkt. # 27, at 18.
The statute makes clear, however, that only certain activities constitute participation: making a
charge; testifying; assisting; or participating in any manner in an investigation, proceeding, or
hearing under Title VII. Laughlin, 149 F.3d at 259 (citing 42 U.S.C. § 2000e-3(a)). “[A]t
minimum, the alleged protected activity must directly relate to the filing of an EEOC charge.”
Johnson v. Portfolio Recovery Assoc., LLC, 682 F. Supp. 2d 560, 582 (E.D. Va. 2009); see also
Thomas v. Goodyear Tire & Rubber Co., No. Civ. A. 4:00-CV-00048, 2001 WL 34790222, at *4
(W.D. Va. June 18, 2001) (holding plaintiff failed to establish retaliation as a result of protected
participation activity where plaintiff filed EEOC complaint three months after being terminated
and salary inquiries did not amount to participation), aff’d, 31 F. App’x 101 (4th Cir. 2002).
6
Refusal to participate in an EEOC investigation against the will of an employer can also give rise
to participation clause protection in certain circumstances. See, e.g., Moss v. Lear Corp, No.
2:05-CV-238PPS, 2007 WL 2901139, at *9 (N.D. Ind. Sept. 28, 2007) (citing Merkel v. Scovill
Inc., 787 F.2d 174 (6th Cir 1986)).
DeMasters cites a number of cases, including Jute v. Hamilton Sundstrand Corp., 420
F.3d 166 (2d Cir. 2005), Kubicko v. Ogden Logistics Services, 181 F.3d 544 (4th Cir. 1999), and
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997), in support of his position that courts have
protected a wide range of employee activities under the participation clause. Each of these cases,
however, involves activity directly related to a Title VII action, which distinguishes them from
the instant case. For example, the court in Jute found the employee-plaintiff to be entitled to
participation clause protection because she voluntarily agreed to testify on behalf of a co-worker
in that individual’s Title VII lawsuit. Kubicko involved claimed retaliation against an employee
who served as a witness in an EEOC investigation stemming from a co-worker’s complaint of
sexual harassment.2 In Hashimoto, the claimed retaliation followed complaints made to an EEO
counselor. As is evident, these cases do not suggest that activities unrelated to an EEOC filing or
Title VII action are protected under the participation clause.
In arguing his activity is protected under the participation clause, DeMasters ignores the
uncontroverted fact that he had nothing to do with Doe’s EEOC complaint or Title VII lawsuit.
DeMasters does not allege that he agreed to testify or serve as a witness for Doe or that he was
involved in any way in Doe’s EEOC complaint or subsequent lawsuit. Indeed, DeMasters did
not even know Doe had filed an EEOC complaint until 2010, two years after he last
communicated with Doe. Am. Comp., Dkt. # 21, at ¶¶ 23, 25. Even after learning of Doe’s
2
Defendants in Kubicko did not contest that plaintiff’s participation in the EEOC investigation was protected
activity under the participation clause. 181 F.3d at 552.
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claim in 2010, DeMasters played no role in it. DeMasters’ sole argument under the participation
clause is that his discussions with Doe in 2008 assisted Doe’s later-filed EEOC complaint and
Title VII action. Because there was no ongoing Title VII investigation or proceeding at the time
DeMasters was communicating with Doe, this argument fails as a matter of law.
In this regard, the Fourth Circuit’s holding in Laughlin is instructive. Karen Laughlin,
secretary to the Washington National Airport Manager, Augustus Melton, Jr., was terminated for
removing documents from Melton’s desk and sending them to Kathy LaSauce, another airport
employee who had complained of retaliation. Laughlin asserted that her actions were protected
activity under Title VII because she was assisting LaSauce in her retaliation investigation. 149
F.3d at 259. The Fourth Circuit disagreed, holding that at the time Laughlin removed the
documents from Melton’s desk, LaSauce was not involved in any ongoing investigation under
Title VII. Id. LaSauce had recently resigned from her position and had not yet filed suit. Id.
“There was quite simply no ongoing ‘investigation, proceeding or hearing’ in which Laughlin
could participate at the time she discovered the documents on her boss’s desk.” Id.; see also id.
at 256 (Laughlin removed the documents out of concern that LaSauce would not have adequate
access to relevant documents “for a future lawsuit”).
DeMasters’ participation claim suffers from the same infirmity. DeMasters does not
allege that Doe was pursuing a Title VII claim when DeMasters spoke to him in 2008. Thus, as
in Laughlin, there is no allegation that DeMasters assisted Doe in an ongoing EEOC
investigation, proceeding or hearing. In fact, DeMasters was not even aware that Doe had filed
an EEOC charge or lodged a Title VII lawsuit until he was informed by Carilion in 2010. Not
only is there no allegation of participation by DeMasters in his own Title VII claim in 2008,
there is no allegation that DeMasters played any role in the filing of Doe’s EEOC complaint or
8
Title VII lawsuit. DeMasters’ activities did not include making a charge, testifying, assisting or
participating in a Title VII proceeding as required by 42 U.S.C. § 2000e-3(a). The lack of
temporal proximity between DeMasters’ interactions with Doe and Doe’s institution of a Title
VII proceeding proves fatal to DeMaster’s participation clause claim.
B.
DeMasters also contends that his conduct is protected under the opposition clause. The
opposition clause “covers a broader range of employee conduct than does the more tightly
circumscribed ‘participation clause.’” McNair v. Computer Data Sys., Inc. 172 F.3d 863, 1999
WL 30959, at *5 (4th Cir. 1999) (unpublished table decision) (citing Laughlin, 149 F.3d at 259
and Armstrong v. Index Journal Co., 647 F.2d 441, 448-49 (4th Cir. 1981)). “To qualify as
opposition activity an employee need not engage in the formal process of adjudicating a
discrimination claim.” Laughlin, 149 F.3d at 259. Using informal grievance procedures and
informal protests, as well as voicing complaints in order to bring attention to an employer’s
discriminatory activities, are all protected opposition activities. Id.
“The opposition clause, by its very terms, requires that the employees at least have
actually opposed employment practices made unlawful by Title VII. That is to say, the clause
protects opposition neither to all unlawful employment practices nor to practices that employees
simply think are unfair.” McNair v. Computer Data Sys., Inc. 172 F.3d 863, 1999 WL 30959, at
*5 (4th Cir. 1999) (unpublished table decision); see also Curry v. BlueCross BlueShield, No.
3:09-CV-2718, 2010 WL 6182356, at *6 (D.S.C. Oct. 14, 2010) (“To establish that she engaged
in protected [opposition] activity, a plaintiff must show that she opposed an unlawful
employment practice which she reasonably believed had occurred or was occurring . . . .”),
adopted by 2011 WL 93199 (D.S.C. Mar. 16, 2011), appeal dismissed, 440 F. App’x 181 (4th
9
Cir. 2011), cert. denied, 132 S. Ct. 1934 (2012). “General complaints about a supervisor’s
conduct, unrelated to discrimination, are not properly considered opposition activity.” HarrisRogers v. Ferguson Enter., No. 5:09-CV- 78-JG, 2011 WL 4460574, at *7 (E.D.N.C. Sept. 26,
2011) (citing Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011), Laughlin, 149 F.3d at 260, and
McCallum v. Billy Graham Evangelistic Ass’n, 3:09CV381-RLV, 2011 WL 3438756, at *8
(W.D.N.C. Aug. 5, 2011)). Typically, the Fourth Circuit has “found informal complaints to be
protected when they are made by the employee to the employer.” Pitrolo v. Cnty. of Buncombe,
NC, No. 07-2145, 2009 WL 1010634, at *3 (4th Cir. Mar. 11, 2009) (citing Bryant v. Aiken
Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543-44 (4th Cir. 2003) and Armstrong, 647 F.2d at 44849). In determining whether an employee has engaged in legitimate opposition activity, the
Fourth Circuit employs a balancing test, requiring courts to “‘balance the purpose of the Act to
protect persons engaging reasonably in activities opposing . . . discrimination, against Congress’
equally manifest desire not to tie the hands of employers in the objective selection and control of
personnel.’” Armstrong, 647 F.2d at 448 (quoting Hochstadt v. Worcester Found. for
Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976)).
Applying the Fourth Circuit standard, the first question to be answered is whether
DeMasters’ actions can be considered oppositional to an unlawful employment practice by
Carilion. DeMasters’ alleged involvement in Doe’s complaints of discrimination consists of (1)
his conversations with Doe and (2) his communications with Carilion management.
1.
In the first instance, DeMasters’ conversations with Doe are not oppositional. DeMasters
alleges that he told Doe that Doe was a victim of sexual harassment and that Carilion had
mishandled Doe’s complaints. Am. Compl., Dkt. # 21, at ¶¶ 13, 24. These statements were not
10
made to Carilion, but rather were part of the counseling DeMasters provided to Doe under the
EAP. Statements made by DeMasters to Doe solely within the confines of the EAP process
cannot qualify as oppositional conduct.
The Fourth Circuit addressed a similar circumstance in Pitrolo v. County of Buncombe.3
In that case, Melanie Pitrolo, a candidate for the position of Interim Director with the Western
North Carolina Air Quality Agency, told her father that the retiring director, Bob Camby, had
advised her that there was opposition to hiring her because of her gender and young age.
Pitrolo’s father complained of the discrimination, and the agency’s governing board learned of
his complaints. After Pitrolo was not selected for the position, she brought suit for gender
discrimination and retaliation. With respect to her retaliation claim, the Fourth Circuit affirmed
the district court’s conclusion that Pitrolo’s statements to her father were not protected
oppositional conduct, as follows:
In light of [Fourth Circuit] precedent, we find that Pitrolo’s
statements to her father do not qualify as protected activity under
§ 2000e-3(a). There is no evidence that Pitrolo intended for her
father to pass along her complaints to Defendants. J.A. 238.
Pitrolo did not communicate her belief to her employer and was
not attempting to bring attention to the alleged discriminatory
conduct. Instead, Pitrolo told her father of Camby’s statements
because she was “close to [her] father” and “it was something that
was very important that was going on in [her] life at the time.”
J.A. 238. As noted by the district court, it would not be reasonable
to “characterize a private complaint to a close family member as an
‘informal grievance procedure’ under Laughlin.” J.A. 527. Since
Pitrolo’s statement to her father was not protected activity, her
retaliation claim fails.
2009 WL 1010634, at *3. For the same reasons, DeMasters’ statements to Doe, made in the
privacy of an EAP counseling session, are not protected oppositional activity. DeMasters did not
make these statements to his employer, Carilion. There is no suggestion that DeMasters intended
3
Although unpublished, this opinion has precedential value in relation to a material issue in this case and there is no
published opinion that would serve as well. See Fourth Circuit Local Rule 32.1.
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for Doe to pass his comments on to Carilion. DeMasters did not communicate his views to
Carilion in an effort to bring attention to the alleged discriminatory conduct. As in Pitrolo, this
does not qualify as protected oppositional activity.
The Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and
Davidson County, Tennessee, 555 U.S. 271 (2009), does not change the calculus. As the Fourth
Circuit in Pitrolo reasoned:
In Crawford, the Supreme Court held that the opposition clause
extends to employees who involuntarily testify in an internal
investigation of alleged sexual harassment. The Court pointed to
an EEOC guideline explaining that “‘[when] an employee
communicates to her employer a belief that her employer has
engaged in . . . a form of employment discrimination, that
communication’ virtually always ‘constitutes the employee’s
opposition to the activity.’” Crawford, 129 S.Ct. at 851 (citing 2
EEOC Compliance Manual §§ 8-II-B(1), (2), p. 614:0003 (Mar.
2003)) (emphasis added). As Justice Alito noted, Crawford does
not extend to cases where employees do not communicate their
views to their employers through purposive conduct. Crawford,
129 S. Ct. at 855 (Alito, J., concurring).
2009 WL 1010634, at *3 n.6. DeMasters’ private communications to Doe in the context of EAP
counseling were not purposive communications to DeMasters’ employer.4 As such, these private
communications do not constitute protected oppositional conduct.
The district court’s opinion in Harris-Rogers v. Ferguson Enterprises also bears on this
issue. In that case, plaintiff Windy Harris-Rogers claimed retaliation for an email she sent
encouraging a fellow employee, Krystal Stinson, to contact the human relations department
concerning badgering by a supervisor. Instead of sending the email just to Stinson as she
intended, however, Harris-Rogers mistakenly sent her email to a mass distribution list.
Following Pitrolo, the court concluded that the mistaken mass email did not qualify as protected
4
Nor were the communications made by DeMasters to his EAP colleagues, as alleged in paragraph 18 of the
amended complaint. See 42 U.S.C. § 2000e(b) (defining “employer”).
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opposition activity as it was intended only for the co-employee and was not sent to voice
opposition or bring attention to the employer’s discriminatory activities. 2011 WL 4460574, at
*7. Likewise, DeMasters’ communications to Doe were intended only for Doe and were not an
attempt to bring attention to Carilion’s discriminatory activities.
2.
Nor do DeMasters’ statements to Carilion’s human relations department qualify as
protected oppositional conduct. There are no allegations in this case that DeMasters played any
role in Doe’s sexual harassment complaint beyond counseling Doe through the EAP and relaying
Doe’s complaint to Carilion’s human relations department. Merely ferrying Doe’s allegations to
Carilion’s human relations department is in no sense oppositional, and DeMasters did not engage
in protected activity in so doing. Rice v. Spinx Co., Inc., No. 6:10-01622-JMC, 2012 WL
684019 (D.S.C. Mar. 2, 2012) (acting within scope of employment by passing along a sexual
harassment complaint to employer’s human resources department is not protected activity); see
Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004) (“To engage
in protected activity, ‘the employee must step outside his or her role of representing the
company . . . .’” (quoting McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486 (10th Cir. 1996)));
McKenzie, 94 F.3d at 1487 (an employee who, in her capacity as personnel director, informed
the company of possible FLSA violations, did not engage in activity protected under FLSA’s
anti-retaliation provision, as it was consistent with her job duties to evaluate wage and hour
issues and assist the company in complying with its obligations under the FLSA); see also Hagan
v. Echostar Satellite, LLC, 529 F.3d 617, 628 (5th Cir. 2008) (agreeing with McKenzie that “an
employee must do something outside of his or her job role in order to signal to the employer that
he or she is engaging [in] protected activity”). It is of no moment that the scope of DeMasters’
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EAP job duties has not been clearly defined at this stage of litigation. Indeed, it is apparent from
the face of the amended complaint that DeMasters intended only to relay Doe’s complaints to
Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual
harassment or hostile work environment alleged by Doe. DeMasters specifically asserts that Doe
signed a release “to permit plaintiff to speak directly with Carilion’s human resources
department so that plaintiff could advance a complaint on Doe’s behalf and communicate
directly with Carilion concerning the matter.” Am. Compl., Dkt. # 21, at ¶ 13 (emphasis added).
At some point, DeMasters voiced criticism to Carilion about the manner in which it was
responding to Doe’s complaints. There is a fundamental difference, however, between voicing
criticism of Carilion’s investigation and handling of Doe’s complaint, which DeMasters alleges,
and championing Does’ substantive discrimination charges to Carilion’s management, which is
not alleged. DeMasters’ criticisms of Carilion’s investigative process is not oppositional activity
subject to Title VII protection.
In this regard, the Eleventh’s Circuit’s opinion in Brush v. Sears Holding Corporation,
466 F. App’x 781 (11th Cir. 2012), cert. denied, 133 S. Ct. 981 (2013), is instructive. The
plaintiff in Brush was a loss prevention officer tasked with conducting an internal investigation
of alleged sexual harassment in the workplace. In September, 2007, Jane Doe, a Sears employee,
contacted Brush, complaining that another employee had sexually assaulted her. Brush notified
Sears of the allegations, and Sears suspended the alleged harasser. Brush continued to meet with
Doe and was told by Doe that she had been raped by the suspended Sears employee; Doe asked,
however, asked that neither her husband nor the police be informed of the alleged rape. Brush
notified other Sears employees of the alleged rape and pushed Sears to disclose the allegations to
the police. Sears declined, citing the investigation’s incomplete status and Doe’s desire not to
14
involve law enforcement. Even after Sears fired the alleged rapist, Brush continued to push for
the reporting of the alleged rape. Brush was terminated in November, 2007. A week after her
firing, Brush filed a claim with the EEOC and was issued a right to sue letter. Two years later,
Brush filed a retaliation suit under Title VII.
The Eleventh Circuit concluded that Brush did not engage in any protected oppositional
conduct, reasoning that “Brush’s disagreement with the way in which Sears conducted its
internal investigation into Mrs. Doe’s allegations does not constitute protected activity. As
required by the explicit language of 42 U.S.C. § 2000e-3(a), to qualify as ‘protected activity,’ a
plaintiff’s opposition must be to a ‘practice made unlawful by [Title VII.]’” 466 F. App’x at 786.
Indeed, the court held:
Brush’s job responsibilities involved exactly the type of actions
that Brush took on Mrs. Doe’s behalf. There is simply no evidence
in the record that Brush was asserting any rights under Title VII or
that she took any action adverse to the company during the
investigation. Disagreement with internal procedures does not
equate with “protected activity” opposing discriminatory practices.
Id. at 787 (internal citation omitted).
Consistent with Brush, DeMasters’ statements to Carilion that Carilion was mishandling
Doe’s complaints are not protected oppositional conduct. DeMasters’ complaints about the
manner in which Carilion handled Doe’s investigation do not concern a practice made unlawful
under Title VII. Because DeMasters’ criticism was directed to Carilion’s processing of Doe’s
complaints, rather than the substance of those complaints, it is not actionable oppositional
conduct. As a result, DeMasters’ allegations do not state a claim for retaliation under the
opposition clause.5
5
In his brief, DeMasters asks the court to infer from the manner in which DeMasters was terminated that Carilion
must have interpreted DeMasters’ conduct as being oppositional or participatory. See Pl.’s Opp. Br., Dkt. # 27, at
15
C.
The additional cases relied upon by DeMasters do not suggest a contrary result. First, as
noted previously, Crawford does not bear on the facts of this case because, unlike in this case,
Crawford involved an employee who directly communicated to her employer her experiences
with sexual harassment in the workplace. 555 U.S. at 274. The issue in Crawford was whether
the opposition clause extended to situations where an employee spoke out about sexual
harassment to her employer in response to inquiries from the employer, as opposed to making
such complaints on her own initiative. Crawford simply does not extend protection under the
opposition clause to the situation presented here where DeMasters did not complain himself of
workplace discrimination or other unlawful employment practices.6 See Pitrolo, 2009 WL
1010634, at *3 n.6 (“Crawford does not extend to cases where employees do not communicate
their views to their employers through purposive conduct.”).
Nor does DeMasters’ reliance on the Supreme Court’s opinion in Thompson v. North
American Stainless, LP, 131 S. Ct. 863 (2011), alter the court’s conclusion. In Thompson, the
Court was “required to assume that [the employer] fired Thompson in order to retaliate against
[Thompson’s fiancée] for filing a charge of discrimination.” Id. at 867. The Court held that
Title VII’s anti-retaliation provision applied to Thompson, concluding that “[h]urting him was
the unlawful act by which the employer punished her,” id. at 870, placing him within the zone of
interests protected by Title VII. Id. Nothing of the sort happened in this case. There is no
suggestion that DeMasters was terminated to punish Doe, as the two bore no relationship other
than by virtue of their communications through the EAP two years earlier.
12-13, 18, 21. But it is DeMasters’ burden to allege that he engaged in protected activity in order to state a prima
facie claim for retaliation under Title VII. That he has failed to do.
6
As noted previously, DeMasters’ call to Carilion’s human relations department merely relaying Doe’s complaint in
his role as EAP consultant does not qualify as oppositional conduct.
16
Finally, DeMasters argues that the Seventh Circuit’s decision in McDonnell v. Cisneros,
84 F.3d 256 (7th Cir. 1996), compels the conclusion that he has stated an opposition claim. In
McDonnell, two Chicago Department of Housing and Urban Development (HUD) employees,
Mary McDonnell and Thomas Boockmeier, were anonymously accused of sexual misconduct at
work. HUD retained investigators from the Department of Defense to investigate the anonymous
allegations. McDonnell and Boockmeier complained about the manner in which the issue was
investigated and ultimately brought a Title VII suit, alleging that their complaints about the
investigation resulted in McDonnell being ostracized, disdained and ridiculed by management
and Boockmeier being reassigned. The Seventh Circuit concluded that there was no causal
connection between McDonnell’s filing of the complaints and the alleged retaliation against her.
Id. at 259.
DeMasters relies on the portion of the Seventh Circuit’s opinion holding that Boockmeier
had sufficiently stated a claim for retaliation under Title VII. The Seventh Circuit held that
Boockmeier, McDonnell’s direct superior, engaged in passive oppositional conduct, consisting
“of failing to carry out his employer’s desire that he prevent his subordinates from filing
discrimination complaints.” Id. at 262. Unlike in McDonnell, however, DeMasters was not
Doe’s superior and had no ability to control Doe’s actions. As such, the concern identified by
the court in McDonnell— i.e., “that employers could obtain immunity from the retaliation statute
by directing their subordinates to take steps to prevent other workers (as by threat of dismissal or
other discipline) from complaining about discrimination,” id. at 262— is simply not present in
this case. In contrast to the situation in McDonnell, DeMasters played no role whatsoever in
Doe’s EEOC charge or Title VII lawsuit, and any private statements he made to Doe in the
context of EAP counseling do not constitute protected oppositional conduct.
17
Indeed, there is no allegation of any contact between Doe and DeMasters between the
EAP sessions in 2008 and Doe’s pursuit of a Title VII claim in 2010. In McDonnell,
Boockmeier alleged retaliation for failing to keep McDonnell from filing an EEOC charge based
on conduct involving both McDonnell and Boockmeier. Here, in stark contrast, DeMasters had
no role whatsoever in Doe’s filing of an EEOC charge some two years after DeMasters provided
EAP counseling. The retaliation claim is simply far too attenuated in this case to constitute
oppositional activity protected under Title VII.
IV.
In sum, DeMasters fails to raise plausible allegations that he engaged in protected activity
under the participation or opposition clause of 42 U.S.C. § 2000e-3(a). As a result, DeMasters
has failed to allege a prima facie case of retaliation, and Carilion’s motion to dismiss under rule
Federal Rule of Civil Procedure 12(b)(6) must be GRANTED. DeMasters has already had an
opportunity to amend his complaint, and the court believes that further amendment would be
futile. DeMasters’ claim will be dismissed with prejudice.
An appropriate Order will be entered.
Entered: September 17, 2013
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
18
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