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Executive Summary: The Eleventh Circuit recently held that a manager who voices her disagreement with the way her employer handles an internal investigation into an allegation of sexual harassment is not engaged in protected activity under Title VII. See Brush v. Sears Holding Corp. (11th Cir. March 26, 2012) (unpublished). The court held that the plaintiff did not engage in protected activity under Title VII because she did not oppose an unlawful employment practice. It also adopted the "managerial rule," holding that a manager's disagreement with an employer's actions, expressed in the course of performing her regular job duties, is not protected activity.
Brush was a Loss Prevention District Coach for Kmart, a subsidiary of Sears Holding Corporation (Sears). As part of her job, she was responsible for minimizing various risks to her employer, including investigating employee complaints. After receiving a sexual harassment complaint from an Assistant Store Coach, Brush and another employee, at Sears' direction, interviewed the Assistant Store Coach. Brush subsequently followed up with a one-on-one interview with the alleged victim, at which she claimed the harasser, a Store Coach, had forcibly raped her multiple times. The employee also stated that she did not want police involvement.
Brush notified management of the complaint and insisted the company call the police. Sears did not call the police; however, it immediately discharged the alleged offender. Brush continued to demand that the company call the police, but it did not do so because the investigation was ongoing and the alleged victim did not want the police contacted.
Sears subsequently discharged Brush for violating the company's sexual harassment policy by: meeting with the accuser alone; suggesting to the accuser that she had been raped without asking an open-ended question to see what the accuser said; and failing to investigate the claim properly by obtaining video evidence. Brush then sued Sears, claiming she was fired "because of her opposition to the nature and performance of the investigation."
The trial court granted Sears' motion for summary judgment and the Eleventh Circuit affirmed this decision, holding that criticism of an employer's internal investigation is not protected activity under Title VII. Generally, Title VII prohibits retaliation against an employee for opposing an unlawful employment practice or for participating in an investigation, proceeding or hearing. Brush claimed her opposition to rape and the way Sears handled the accuser's allegation were protected opposition and, thus, actionable under Title VII.
Relying on other Eleventh Circuit decisions, which have held that internal investigations are not unlawful discriminatory practices themselves, the court held that Brush's disagreement with the way Sears handled the investigation was not protected activity under Title VII. Brush also claimed that her role in reporting a Title VII violation qualified as protected activity relating to a discriminatory practice, citing the U.S. Supreme Court's decision in Crawford v. Metropolitan Government. In rejecting this argument, the court adopted the "manager rule," which holds that a manager's disagreement, in the course of performing her regular job duties, with an employer's actions does not constitute protected activity under Title VII. The court then held that Brush was acting solely as a manager in investigating the claims of sexual harassment, and that her opposition to Sear's internal investigation procedures was not protected activity under Title VII.
Employers' Bottom Line:
The decision is good news for employers in the states covered by the Eleventh Circuit (Alabama, Florida and Georgia) especially in light of recent cases expanding the scope of retaliation claims that can be brought under Title VII and other statutes. Employers should be careful, however, always to ensure that adverse employment actions are supported by legitimate, nondiscriminatory business reasons.
If you have any questions regarding this Alert, or other labor or employment related issues, please contact the author, Scott Evans, firstname.lastname@example.org, an attorney in our Birmingham office, or the Ford & Harrison attorney with whom you usually work.