Employment-Eleventh Circuit Rules That A Manager’s Complaint Is Not Protected By Title VII’s Anti-Retaliation Provision, And Adopts The “Manager Rule” For Its Circuit

In Brush v. Sears Holdings Corporation, No. 11-10657 (11th Cir. 2012) (Unpublished Opinion), the plaintiff, Janet Brush (“Brush”), was terminated by her employer, defendant Sears Holding Corporation (“Sears”). Brush subsequently filed suit against Sears, under Title VII, alleging she was terminated in retaliation for certain actions she took as an investigator of a sexual harassment claim. The district court granted summary judgment against her. The question for the Eleventh Circuit Court of Appeals (the “Court”): does the anti-retaliation provision of Title VII protect Brush?

Brush had worked for Sears as a Loss Prevention District Coach. Her job was to minimize varieties of risk to the company. On or around September 15, 2007, Brush received a telephone call from an Assistant Store Coach. The Assistant Store Coach, whom the Court refers to as “Mrs. Doe,” informed Brush that she was being sexually harassed by her Store Coach. Brush notified Sears of the allegation. Sears suspended the Store Coach accused of harassment and directed Brush and another Sears employee, one Scott Reuter, to meet with Mrs. Doe to investigate further internally. During the investigation, Mrs. Doe informed Brush that she had been raped multiple times by the Store Coach. However, Mrs. Doe asked that neither her husband nor the police be informed of the rape. Brush notified Reuter of what Mrs. Doe told her, and they subsequently reported the same to Sears. Brush stated that Sears needed to contact the police. Sears declined, although it terminated the employment of the Store Coach, the man who Mrs. Doe said harassed and raped her. Brush nonetheless continued to urge the reporting of the alleged rape. On November 20, 2007, Sears terminated Brush’s employment, citing her violation of Sear’s policy relating to the investigation of sexual harassment claims. This action ensued. Brush alleged that she had been terminated in retaliation for uncovering multiple rapes and complaining that Sears had done nothing about them.

In analyzing the case, the Court said that Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate against an employee because she has opposed any unlawful employment practice (the “opposition clause”), or because she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII (the “participation clause”). For technical reasons, Brush could proceed only under the opposition clause. To make a prima facie showing of a retaliation claim based on the opposition clause, a plaintiff must demonstrate, among other things, that she engaged in statutorily protected activity. In this case, Brush’s disagreement with the way in which Sears conducted its internal investigation into Mrs. Doe’s allegations does not constitute protected activity. There is no evidence of Brush’s opposition to any unlawful practice here, with the result that Brush does not have a claim under Title VII. Nonetheless, Brush argues that an investigative manager’s role in reporting a Title VII violation-here the alleged sexual harassment- necessarily qualifies as a “protected activity” relating to a discriminatory practice. However, the Court noted that other circuit courts of appeal have created what is known as the “manager rule.” In essence, the “manager rule” holds that a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer does not engage in protected activity. Instead, to qualify as “protected activity” an employee must cross the line from being an employee performing her job to an employee-such as Mrs. Doe- lodging a personal complaint. Brush’s complaint involved the adequacy of Sear’s internal procedure for receiving sexual harassment complaints, rather than an employment practice that Title VII declares to be unlawful. The Court adopted the manager rule for the eleventh circuit.

As such, the Court concluded that Brush did not engage in a statutorily protected activity, and therefore did not make out a prime facie case of retaliation under Title VII. Accordingly, the Court affirmed the district court’s decision.