Draft

Table of Contents

TABLE OF AUTHORITIES............................................................................ iii

STATEMENT OF INTEREST......................................................................... 1

STATEMENT OF THE ISSUE........................................................................ 1

STATEMENT OF THE CASE......................................................................... 2

A. Nature of the Case and Course of Proceedings Below........................ 2

B. Statement of Facts.............................................................................. 2

C. District Court Opinion....................................................................... 6

SUMMARY OF THE ARGUMENT................................................................ 8

ARGUMENT.................................................................................................... 9

The district court erred in holding that the judicially-created

“manager rule” applies to Title VII.......................................................... 9

A. The manager rule is contrary to the plain language of Title VII........ 11

B. The manager rule is at odds with Supreme Court precedent and the

objectives of Title VII....................................................................... 13

C. Most circuits have rejected the manager rule under Title VII, either

in full or in part, or have questioned its continued validity.............. 17

D. The judicially-created manager rule should be limited to the FLSA,

if it even remains good law under that statute.................................. 22

E. The manager rule is unworkable and unnecessary............................ 25

TABLE OF CONTENTS (con’t)

CONCLUSION............................................................................................... 29

CERTIFICATE OF COMPLIANCE............................................................. C-1

CERTIFICATE OF SERVICE...................................................................... C-2

Table of Authorities

Page(s)

Cases

Brush v. Sears Holding Corp.,
466 F. App’x 781 (11th Cir. 2012)............................................ 7, 21, 22, 27

Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998)................................................................................... 15

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)..................................................................................... 13

Claudio-Gotay v. Becton Dickinson Caribe, Ltd.,
375 F.3d 99 (1st Cir. 2002)................................................................. passim

Collazo v. Bristol-Myers Squibb,
617 F.3d 39 (1st Cir. 2010)................................................................. passim

Crawford v. Metro. Gov. of Nashville & Davidson Cnty, Tenn.,
555 U.S. 271 (2009)............................................................................ passim

DeMasters v. Carilion Clinic,
796 F.3d 409 (4th Cir. 2015)................................................... 11, 16, 17, 23

EEOC v. Abercrombie & Fitch Stores, Inc.,
135 S. Ct. 2028 (2015)............................................................................... 12

EEOC v. HBE Corp.,
135 F.3d 543 (8th Cir. 1998)................................................... 19, 25, 26, 27

Faragher v. City of Boca Raton,
524 U.S. 775 (1998)................................................................................... 15

Hagan v. Echostar Satellite, LLC,
529 F.3d 617 (5th Cir. 2008)..................................................................... 28

Johnson v. Univ. of Cincinnati,
215 F.3d 561 (6th Cir. 2000)......................................................... 17, 18, 25

Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 131 S. Ct. 1333 (2011)...................................................... 11, 24

TABLE OF AUTHORITIES (con’t)

Kolstad v. Am. Dental Ass’n,
527 U.S. 526 (1999)................................................................................... 16

Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015).................................................... 11, 18, 19, 27

McKenzie v. Renberg’s Inc.,
94 F.3d 1478 (10th Cir. 1996)............................................................. passim

Robinson v. Shell Oil Co.,
519 U.S. 337 (1997)............................................................................. 11, 13

Rosenfield v. GlobalTranz Enter., Inc.,
-- F.3d -- , 2015 WL 859940 (9th Cir. 2015).............................................. 25

Schanfield v. Sojitz Corp.,
663 F. Supp. 2d 305 (S.D.N.Y. 2009)....................................................... 14

Skidmore v. Swift & Co.,
323 U.S. 134 (1944)................................................................................... 17

Smith v. Sec’y of the Navy,
659 F.2d 1113 (D.C. Cir. 1981)................................................................. 18

Thompson v. N. Am. Stainless, LP,
562 U.S. 170 (2011)................................................................................... 13

United States v. Gonzales,
520 U.S. 1 (1997)....................................................................................... 11

Vidal v. Ramallo Bros. Printing, Inc.,
380 F. Supp. 2d 60 (D.P.R. 2005)............................................................. 16

Warren v. Ohio Dep’t of Public Safety,
24 F. App’x 259 (6th Cir. 2001)................................................................ 29

Weeks v. Kansas,
503 F. App’x 640 (10th Cir. 2012)............................................................ 20

TABLE OF AUTHORITIES (con’t)

Statutes

29 U.S.C. § 215(a)(3).................................................................................. 1, 23

42 U.S.C. § 2000e-3(a)............................................................................. passim

42 U.S.C. § 2000e(b)...................................................................................... 12

42 U.S.C. § 2000e(f)....................................................................................... 12

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq......... passim

5 M.R.S. § 4633(1).................................................................................. passim

26 M.R.S. § 833(1)(A)...................................................................................... 6

Rules

Fed. R. App. P. 29(a)........................................................................................ 1

Other Authorities

2 EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998), available at http://www.eeoc.gov/policy/docs/retal.html......................................... 23, 29

Deborah L. Brake, Retaliation in the EEO Office, 50 Tulsa L. Rev. 1 (2014).. 25

Brief for the Sec’y of Labor and the EEOC as Amicus Curaie in Supp. of Plaintiff-Appellant, Rosenfield v. GlobalTranz Enters., Inc., -- F.3d -- , 2015 WL 859940 (9th Cir. 2015) (No. 13-15292).................................................................. 24

Statement of Interest

The Equal Employment Opportunity Commission was established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal raises an important issue concerning the proper interpretation of the “opposition” clause of Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a). Specifically, this case raises the question of whether the judicially-created “manager rule,” which first arose under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3), applies to Title VII’s anti-retaliation provision. The district court held that it does. Based on this ruling, the district court held that the manager rule therefore applies to the Maine Human Rights Act (MHRA), barring the Plaintiffs’ retaliation claims. Because the district court’s holding that the manager rule applies to Title VII is erroneous and undermines the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a).

Statement of the Issue [1]

Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), prohibits an employer from discriminating against “any” employee for opposing discrimination. Did the district court err in applying the judicially-created “manager rule” to hold that managers with a duty to report discrimination are not protected against retaliation under Title VII for opposing discrimination, and therefore are not protected under the Maine Human Rights Act, unless they “step outside” their normal job duties and take action adverse to their employer?

Statement of the Case

A. Nature of the Case and Course of Proceedings Below

In this employment case, the Plaintiffs sued under the Maine Human Rights Act (MHRA), 5 M.R.S. § 4633(1), alleging they were fired in retaliation for having opposed discrimination. The employer filed a motion for summary judgment arguing that the judicially-created “manager rule” bars their claims. Looking to federal law for guidance, the district court held that the manager rule applies to Title VII’s anti-retaliation provision and therefore applies to the MHRA. Applying the manager rule, the court held that it bars the Plaintiffs’ retaliation claims. The court therefore granted summary judgment. The Plaintiffs appealed.

B. Statement of Facts[2]

Defendant Boulevard Motel Corporation (“Boulevard Motel”) owns and operates a Comfort Inn Hotel in South Portland, Maine. Add.4. Plaintiff Brenda Pippin worked as the Executive Housekeeper, and Plaintiff Grace Parker worked as the Assistant Executive Housekeeper. Add.4-5. Pippin’s responsibilities included overseeing the housekeeping staff, as well as hiring, firing, and disciplining that staff. Add.4. Parker also had supervisory responsibility for the staff and was charged with performing Pippin’s duties in her absence, but Parker lacked hiring, firing, or disciplining authority. Add.5.

Both Pippin and Parker participated in an annual training entitled “Preventing Sexual Harassment Supervisor Version.” Add.6. This training instructed that “any supervisor who sees or hears about conduct that may constitute harassment under this policy must immediately” report it to the property manager or to Human Resources (HR). Add.7. Pippin and Parker also received copies of the employee handbook, which also required supervisors to report to HR any employee complaints about alleged harassment. Add.7.

On April 21, 2010, Parker overheard a maintenance employee, Randy Crabtree, call one of the housekeepers, Abinair Martin, “Nipples.” When Parker asked Martin if Crabtree had really said what she thought she heard, Martin confirmed that he had. Add.8. Martin, who is Brazilian, informed Parker that Crabtree had also stated that Brazilian women have big nipples and had asked her to lift up her shirt so that he could “suck on her nipples.” Add.8-9. Parker told Martin to document everything and report it immediately to the Hotel General Manager, Beth Landergren. Add.9. Martin, however, asked that they wait for Pippin, who was out, to return to work so they could report it together to Landergren.

When Pippin returned, Parker and Martin informed her of the incident. Pippin, Parker, and Martin then met with Landergren. Add.9. Landergren, who was rumored to be having an affair with Crabtree, expressed doubt about the allegations. She tried to dissuade Martin from pursuing the matter, stating that Crabtree “didn’t fit the profile” and “jokes around with everyone.” Add.10, 17. Landergren nevertheless reported the allegations to Ignacio Mello, Boulevard Motel’s HR Manager. Add.10. Landergren also prepared a written statement. Add.11. She admitted telling Martin that Crabtree “‘joked around’ with everyone,” that Martin then burst into tears and asked why Landergren allowed this to go on such that Martin had to file a formal complaint, and that she (Landergren) told Martin that she was the only one offended. Add.11. That same day, Parker helped Martin prepare a written statement of events to submit to Mello. Parker wrote at the top of the statement, “this is written by Grace Parker because Abinair Martin cannot spell and write English very well.” Add.11.

Two days later, Landergren met with Crabtree, explained the allegations, and asked for his response. Add.12. A few days later, Mello arrived at the hotel. Add.12. He further investigated Martin’s complaint by interviewing witnesses and gathering statements. Add.12. Both Parker and Pippin met with Mello and told him that they had provided written statements. Add.12. Mello told Parker, Pippin, and Martin not to discuss the harassment, or they would be “written up” or terminated. Add.12.

At some point, Martin complained to Mello that Landergren was biased. Add.13. Mello then removed Landergren from the investigation. Add.13. Mello eventually determined that Crabtree had acted inappropriately and may have breached company policy but that his actions did not amount to unlawful sexual harassment. Add.13-14. In May 2010, Crabtree received a written warning and additional sexual harassment training. Add.14. Mello also determined that Landergren had acted inappropriately during the investigation, and she received a written reprimand. Add.13, 18. Pippin and Parker were dissatisfied with the findings as to Crabtree because they believed that Crabtree’s conduct constituted a violation of law and company policy. Add.15. On June 2, 2010, Pippin sent Mello a fax stating that Martin was still very upset and felt Landergren cared only about Crabtree. Add.19. Parker also sent a fax to Mello on June 2, 2010, stating that another coworker said she felt as though she would be fired if she did not take Landergren’s side. Add.19.

In early 2011, Parker reported to Landergren another incident she witnessed in which a different maintenance employee removed his shirt and approached one of the housekeepers from behind. Add.20. On February 23, 2011, Boulevard Motel fired Parker, purportedly for a violation of the company’s ethics policy. Add.21. On July 5, 2011, Boulevard Motel also fired Pippin, purportedly for “an accumulation of offenses.” Add.21.

Plaintiffs filed retaliation suits under the MHRA.[3] Boulevard Motel moved for summary judgment, arguing that this Court has suggested that the “manager rule,” also known as the “job duties” exception, applies to Title VII’s anti-retaliation provision and therefore that the rule applies to the MHRA. Add.23. Under the “manager rule” an individual with a duty to report discrimination has not opposed discrimination unless she “steps outside” her normal employment role and takes action adverse to the company. Because Pippin and Parker had a duty to report sexual harassment, Boulevard Motel argued, the manager rule compelled the conclusion that they had not opposed discrimination. Add.23.

C. District Court Decision

The district court agreed with Boulevard Motel that the manager rule applies to Title VII and therefore to the MHRA, barring the Plaintiffs’ retaliation claims. Add.34-37, 44-47, 53-55. At the outset, the court noted that neither the Maine Supreme Judicial Court nor this Court has explicitly decided whether the manager rule applies to the MHRA. Add.34. The district court also noted that federal law guides the proper interpretation of the MHRA. Add.34-35. The court therefore turned for guidance to Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2002), where this Court adopted the manager rule under the FLSA, and Collazo v. Bristol-Myers Squibb, 617 F.3d 39, 48-49 (1st Cir. 2010), where this Court assumed without deciding that the manager rule applies to Title VII but held that it did not apply to the plaintiff. Add.35-36. “Guided by [this] precedent,” the district court “assumed that the job duties exception applies” to the MHRA’s anti-retaliation provision. Add.37.

The district court next held that the manager rule barred Pippin’s retaliation claim. The court reasoned that reporting sexual harassment was one of Pippin’s job duties. Add.40-41, 47. As for Pippin’s fax to Mello relaying that Martin was still upset and believed Landergren was biased, the court relied on Brush v. Sears Holding Corp., 466 F. App’x 781, 786 (11th Cir. 2012), to hold that voicing disagreement with an internal investigation does not constitute protected activity. Add.41-42, 47. The district court held that Parker’s actions likewise fell within the manager rule. While Parker did not have the same hiring and firing authority as Pippin, the court said, she had received the supervisor sexual harassment training and had a duty to report harassment. Add.50-54. The court therefore found that Parker had “not stepped out of her ordinary employment role of representing the company” or taken “action adverse to the company,” even when she wrote out Martin’s complaint for her and provided additional statements at the request of Boulevard Motel. Add.53.

Although ruling against the Plaintiffs, the court expressed “misgivings” about “the extension of the job duties exception” to all employees with a duty to report discrimination. Add.57-58. The court explained that the manager rule gives rise to “a classic Catch-22”:

[I]f the employee who witnessed sexual harassment had just read

this opinion, she might well conclude that the wiser course is to

keep quiet, fearing that if she raised a fuss, the employer could fire

her. However, if the employer found out that she was a witness and

failed to report it, the employer might conclude that she violated

the mandatory requirements of its reporting policy and fire her

for keeping still.

Add.58. Finally, the court voiced its “concern[] that the job duties exception has denied Ms. Pippin and Ms. Parker their day in court.” Add.59.

Summary of Argument

This appeal raises an important issue that this Court has never squarely addressed: whether the judicially-created “manager rule” applies to Title VII’s anti-retaliation provision. Under the manager rule, which arose under the FLSA thirty years after the enactment of Title VII, human resources employees and other managers with a duty to report discrimination must “step outside” their job duties and take action adverse to the employer in order to oppose discrimination. Based on its interpretation of Supreme Court and First Circuit precedent, the district court held that the manager rule applies to Title VII and, therefore, to the MHRA, barring the Plaintiffs’ retaliation claims because one of their duties as housekeeping managers was to report discrimination.

The district court erred in holding that the manager rule applies to Title VII. The manager rule is contrary to the plain language of Title VII and to Supreme Court precedent and has proven to be unworkable and unnecessary. This Court should therefore join three other circuits in holding that the manager rule has no place in Title VII’s jurisprudence. Because the district court premised its application of the manager rule to the MHRA on the court’s erroneous view that the rule applies to Title VII, summary judgment should be reversed.

Argument

The district court erred in holding that the judicially-created “manager rule” applies to Title VII.

Title VII’s anti-retaliation provision includes a “participation” and an “opposition” clause. The opposition clause states broadly that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added). Under the ordinary understanding of the term “opposed,” the Plaintiffs in this case “opposed” discrimination when they encouraged Martin to complain of sexual harassment, assisted her in doing so and submitted written statements, and/or raised concerns about the investigation. See Crawford v. Metro. Gov. of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (defining oppose as “to resist or antagonize” and holding that an employee’s communication of a belief that her employer has discriminated “virtually always ‘constitutes the employee’s opposition to the activity’”; holding that the plaintiff’s “description of the louche goings-on would certainly qualify” as resistance to the harassment) (citation omitted); see also Collazo, 617 F.3d at 47 (holding that a jury could find that the plaintiff opposed discrimination based on his “persistent efforts to help” a subordinate complain of harassment and his urging that HR act upon her complaint).

The district court nevertheless held that the so-called “manager rule” applies to Title VII and therefore to the MHRA, barring the Plaintiffs’ claims because they had not “stepped outside” their job duties and taken action adverse to Boulevard Motel. The district court erred. The manager rule is a judicially-created doctrine that first arose in a FLSA case more than thirty years after the enactment of Title VII. See McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996). While this Court has held that the manager rule applies to the FLSA, Claudio-Gotay, 375 F.3d at 102, this Court has never squarely decided whether it applies to Title VII. See Collazo, 617 F.3d at 49 (assuming without deciding that the rule applies to Title VII but holding that the plaintiff stepped outside his job duties). This Court should hold that it does not, as the manager rule is contrary to the plain language of Title VII, Supreme Court precedent, and Title VII’s policy objectives.

A. The manager rule is contrary to the plain language of Title VII.

The starting point for any statutory interpretation is the plain language of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Title VII’s anti-retaliation provision is clear and unambiguous. As stated, Title VII prohibits retaliation against “any” employee for opposing discrimination. 42 U.S.C. § 2000e-3(a). Because Title VII does not define “any,” it carries its ordinary meaning. See Crawford, 555 U.S. at 276. “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)) (emphasis added); see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1333, 1332 (2011) (stating that “any” “suggests a broad interpretation”). The plain language of Title VII therefore mandates that all employees who oppose discrimination are protected from retaliation, regardless of their job duties. See DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) (“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 portion of workers from its anti-retaliation protections.”); Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (stating that Title VII “does not distinguish among entry-level employees, managers, and any other type of employee”).

Had Congress intended to exclude some employees from protection for opposing discrimination—HR employees, managers, and any other employee with a duty to report discrimination—Congress could have done so expressly, as it did in other provisions of the statute. For instance, in defining “employee,” Congress expressly excluded elected officials and certain of their appointees. 42 U.S.C. § 2000e(f). Also, Congress qualified expressly the definition of “employer,” stating that it refers only to those persons engaged in interstate commerce with “fifteen or more employees.” 42 U.S.C. § 2000e(b). Thus, Congress must be presumed to have acted intentionally when it broadly extended Title VII’s protection against retaliation to “any” employee who opposed discrimination. 42 U.S.C. § 2000e-3(a). To hold that managers are protected only if they “step outside” their usual employment roles and take actions adverse to their employers would be to add language that is not in the statute, which “is Congress’s province.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (stating that the problem with Abercrombie’s interpretation of Title VII is “the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result.”).

B. The manager rule is at odds with Supreme Court precedent and the objectives of Title VII.

Supreme Court precedent also counsels against importing the judicially-created manager rule to Title VII. Because of the importance of “unfettered access” to Title VII’s remedial mechanisms, Robinson, 519 U.S. at 346, the Supreme Court has repeatedly held that Title VII’s anti-retaliation provision “provide[s] broad protection from retaliation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Thus, in Burlington Northern, the Court held that the anti-retaliation provision prohibits any adverse action, even those unrelated to employment, that would dissuade a reasonable worker from making or supporting a charge of discrimination. Id. at 67-68. In reaching its conclusion, the Court noted that the Title VII’s “primary objective” is to secure “a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Id. at 63. A broad interpretation of the anti-retaliation provision is necessary, the Court said, to “ensure the cooperation upon which accomplishment of the Act’s primary objective depends.” Id. at 67; see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (stating that “Title VII’s antiretaliation provision is worded broadly” and holding that “there is no textual basis for making an exception to it for third-party reprisals”).

Similarly, in Crawford, 555 U.S. 271, the Supreme Court broadly interpreted the opposition clause to include those employees who speak out about discrimination in response to questions posed during an employer’s internal investigation. As stated, Crawford held that “‘[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.’” 555 U.S. at 276 (quoting Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual, Section 8: Retaliation, §§ 8–II–B(1), (2) (May 20, 1998), available at http://www.eeoc.gov/policy/docs/retal.html) (emphasis added). Crawford did not explicitly address the manager rule, as the plaintiff was not a manager. But Crawford is in tension with the manager rule. Significantly, nowhere in Crawford did the Court find it necessary to discuss whether the employee stepped outside her normal employment duties or whether, on remand, the trial court should consider such a limitation on the opposition clause. See Schanfield v. Sojitz Corp., 663 F. Supp. 2d 305, 342 (S.D.N.Y. 2009) (holding that Crawford “seems [to] foreclose[]” the defendant’s argument that the plaintiff had not engaged in protected activity because he had a duty to report discrimination issues; also stating it would be “utterly inconsistent” with the “sweeping” language of Crawford to hold that acts taken within an employee’s job are not “oppositional”).

Further, Crawford underscores the crucial role that internal investigations play in achieving Title VII’s “primary objective” of eradicating discrimination. Crawford, 555 U.S. at 278 (noting that prior precedent encourages employers to adopt policies to strengthen procedures for investigating and correcting discrimination). Those investigations rely on the ability of employees to report and recount instances of discriminatory acts in the workplace, without fear of retaliation. It follows, then, that just as Crawford recognized the need to protect employees who answer inquiries during internal investigations, employees who report discriminatory acts against others must also be protected against retaliation. To hold otherwise would discourage prudent employees from reporting discrimination. See Crawford, 555 U.S. at 279 (If an “employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others.”) (emphasis added). Thus, as the district court noted in this case, the manager rule puts employees in a “classic Catch-22” by forcing managers with a duty to report discrimination to choose between reporting, and risking lawful retaliation, or remaining silent, and risking discipline for failing to perform their job duties.

The manager rule additionally undermines Supreme Court precedent as to an employer’s liability for supervisor harassment and for punitive damages. In

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court adopted a two-pronged affirmative defense to supervisor harassment that requires employers to show that: (1) they acted promptly to prevent and remedy harassment; and (2) the plaintiff unreasonably failed to prevent or mitigate harm. Likewise, in Kolstad v. American Dental Association, 527 U.S. 526, 545-46 (1999), the Supreme Court held that an employer could avoid punitive damages under Title VII by showing that the supervisor acted contrary to the employer’s good faith efforts to comply with Title VII. The underlying principle of both the Ellerth/Faragher affirmative defense and the Kolstad defense is to create incentives for employers to adopt policies and procedures that encourage the prompt reporting, investigation, and remediation of discrimination.

The manager rule, however, discourages HR employees and others managers from reporting or investigating discrimination as part of their job duties because the rule affords them no protection against retaliation for doing so. See DeMasters, 769 F.3d at 423 (stating that the manager rule “put[s] in motion a downward spiral of Title VII enforcement” by encouraging employees to remain silent about discrimination, allowing it “to go undeterred and unremedied”). The case law bears out that this is no idle concern, as employers have fired, and do fire, employees for doing their job of relaying discrimination complaints and commencing investigations. See Vidal v. Ramallo Bros. Printing, Inc., 380 F. Supp. 2d 60 (D.P.R. 2005) (holding that human resources director did not engage in protected activity where he was fired hours after informing the company president and vice-president of sexual harassment complaints against them and his intention to start an investigation).

C. Most circuits have rejected the manager rule under Title VII, either in full or in part, or have questioned its continued validity.

Although the circuits are divided over whether the manager rule applies to Title VII, most circuits have either rejected it outright or questioned its continued validity. Most recently, in DeMasters the Fourth Circuit strongly repudiated the manager rule, agreeing with the plaintiff and EEOC as amicus that the rule “has no place in Title VII enforcement.” DeMasters, 796 F.3d at 424. In reaching this ruling, the court relied on the plain language of Title VII, Supreme Court precedent, and the justification for the manager rule’s adoption under the FLSA. Id. at 422-23. The court also stated that EEOC’s view that the manager rule does not apply to Title VII was “entitled to respect . . . to the extent it has the power to persuade” under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Id. at 422 n.7 (concluding that “EEOC’s position accords with the language and purpose of the statute and relevant case law” and therefore was persuasive).

In rejecting the manager rule, the Fourth Circuit joined the Sixth Circuit, which rejected the manager rule more than fifteen years ago in Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000). In that case, the Sixth Circuit relied on the text of Title VII and the EEOC’s Compliance Manual to hold that an HR employee who protested discriminatory hiring had engaged in protected activity under Title VII, even though the employee “had a contractual duty to voice such concerns.” Id. at 579. The Sixth Circuit emphasized that pursuant to the EEOC’s Compliance Manual, “the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of his opposition must be reasonable. Of critical import here is the fact that there is no qualification on who the individual doing the complaining may be or on the party to whom the complaining is made known . . . . ” Id. at 580. Finally, in a case pre-dating McKenzie, the D.C. Circuit also refused to apply the reasoning underlying the manager rule. See Smith v. Sec’y of the Navy, 659 F.2d 1113, 1121 (D.C. Cir. 1981) (stating that “the plain language of Title VII prohibits reprisals against employees for their participation in EEO activities” and holding that the plaintiff’s work as an EEO counselor “falls within the protective ambit of the statutory language”). Thus, three circuits have issued published decisions either explicitly or implicitly rejecting the manager rule under Title VII.

The Second Circuit has also rejected a bright-line rule requiring managers to “step outside” their normal duties and take action adverse to their employers in order to engage in protected conduct. See Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). In Littlejohn the court noted that “the plain language of § 704(a)’s opposition clause” “does not distinguish among entry-level employees, managers, and any other type of employee.” Id. at 318. The court also observed that Crawford was not restricted to “non-managers or to employees whose job responsibilities are untethered to monitoring discrimination or enforcing non-discrimination policies.” Id. The Second Circuit therefore held that if “an employee—even one whose job responsibilities involve investigating complaints of discrimination—actively supports other employees in asserting their Title VII rights or personally complains or is critical about the discriminatory employment practices of her employer,” that employee has engaged in protected activity under the opposition clause. Id. (internal quotation marks and citation omitted). However, the court held, an employee who only reports or investigates other employees’ discrimination complaints as part of that employee’s job duties has not engaged in oppositional conduct. Id. (holding that EEO director engaged in protected conduct by complaining of unlawful discrimination in personnel decision-making process).

To be sure, other circuits have invoked the manager rule under Title VII. But these decisions either consider the rule without explicitly deciding if it applies, or they are unpublished opinions lacking cogent reasoning. The manager rule first appeared in a Title VII case in EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998). Some courts, including this one, have cited HBE as holding that the manager rule applies to Title VII. See, e.g., Claudio-Gotay, 375 F.3d at 102 (citing HBE as “requiring action adverse to the company in a Title VII retaliation case”). But the Eighth Circuit did not actually hold that the manager rule applies to Title VII. Rather, the court acknowledged the defendant’s argument that the manager rule applied before distinguishing McKenzie on the ground that the plaintiff had stepped outside his normal role as director of personnel by “refus[ing] to implement a discriminatory company policy” of excluding African-Americans from important positions. Id. Thus, as with this Court’s decision in Collazo, 617 F.3d at 49, the Eighth Circuit avoided deciding whether the manager rule applies to Title VII because the court found the rule inapplicable to the plaintiff.

Two other circuit panels have squarely held that the manager rule applies to Title VII, although both decisions were unpublished. In Weeks v. Kansas, 503 F. App’x 640 (10th Cir. 2012), the Tenth Circuit panel held that the manager rule barred the claim of an in-house attorney who reported discrimination and advised her employer to take it seriously. The panel, however, sua sponte raised the question of whether the manager rule was superseded by Crawford’s suggestion that “all one has to do to oppose an unlawful employment practice in Title VII cases is to ‘antagonize . . . ; contend against; . . . confront; resist; [or] withstand’ it.” Weeks, 503 F. App’x at 643 (quoting Crawford, 555 U.S. at 276). Because the plaintiff had not raised this question, the Tenth Circuit panel declined to answer it.

An Eleventh Circuit panel also held in an unpublished case that the manager rule applies to Title VII. See Brush, 466 F. App’x at 787-88. In Brush, which the district court relied on below, the Eleventh Circuit panel concluded that the manager rule survived Crawford and applies to Title VII. Id. at 787. Applying the rule, the panel held that Brush “acted solely as a manager” when she investigated an employee’s complaint of sexual harassment, including multiple rapes, and criticized Sears’ failure to report the rapes to the police. Id. The panel further reasoned that “[d]isagreement with internal procedures does not equate with ‘protected activity’ opposing discriminatory practices.” Id. According to the panel, the plaintiff’s “opposition” was to the failure of Sears to summon the police; since Sears had no obligation to do so, the court reasoned, the plaintiff had not opposed an unlawful employment practice. Id. at 788.

While Brush unquestionably adopted the manager rule under Title VII, the decision lacks persuasive value. Nowhere did the Eleventh Circuit panel reconcile its adoption of the manager rule with the text of Title VII. Rather, the panel merely cited McKenzie and another Fifth Circuit decision that adopted the rule under the FLSA, summarily concluded that Crawford had not addressed the manager rule, and declared that “the ‘manager rule’ [is] persuasive and a viable prohibition against certain individuals recovering under Title VII.” See Brush, 466 F. App’x at 787. This perfunctory analysis falls far short of providing justification for ignoring the plain text of Title VII and imposing additional burdens on managers who oppose discrimination.

D. The judicially-created manager rule should be limited to the FLSA, if it even remains good law under that statute.

In its decision below, the district court assumed that this Court would apply the manager rule under Title VII. The court based that assumption, in part, on this Court’s adoption of the manager rule under the FLSA in Claudio-Gotay, 375 F.3d at 102-03. It does not follow, however, that because this Court adopted the manager rule under the FLSA, this Court should import the rule to Title VII. As discussed above, Supreme Court precedent, which has broadly interpreted Title VII’s anti-retaliation provision and created incentives for employers to adopt policies that encourage internal reporting and vigorous investigations, provides reason for declining to import the manager rule to Title VII.

Additionally, this Court has already suggested that textual differences between the FLSA and Title VII may offer a principled reason for limiting the manager rule to the FLSA. While Title VII’s anti-retaliation provision contains both a participation and an opposition clause, the FLSA’s anti-retaliation provision contains only a participation clause. Compare 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against an employee for “oppos[ing]” an unlawful employment practice or because the employee “made a charge, testified, assisted, or participated in any . . . investigation, proceeding, or hearing”), with 29 U.S.C. § 215(a)(3) (making it unlawful to discriminate against any 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”). In the EEOC’s view, the FLSA’s anti-retaliation provision (which also applies to the Equal Pay Act, which the EEOC enforces) prohibits retaliation based on both participation and opposition. See 2 EEOC Compl. Man., Section 8, Retaliation, § 8-II(B) n.12 (May 20, 1998), available at http://www.eeoc.gov/ policy/docs/retal.html. This Court, however, suggested in Collazo that the textual differences between the FLSA and Title VII may justify limiting the manager rule to the FLSA. 617 F.3d at 49 n.5. And in DeMasters, the Fourth Circuit relied on the textual differences between the two statutes when it declined to “import[] the ‘manager rule’ into Title VII.” 796 F.3d at 422. Thus, notwithstanding the EEOC’s view that the statutes are coterminous, this Court’s precedent suggests that the textual differences between the two statutes counsel against importing the manager rule to Title VII.

Another reason this Court should reject the manager rule under Title VII is that the rule may not even be good law under the FLSA. The EEOC is not suggesting that this Court should, or could, revisit Claudio-Gotay when deciding this appeal. However, it is the view of both the EEOC and the Department of Labor that the manager rule is inconsistent with the plain language of the FLSA’s anti-retaliation provision as well as with the FLSA’s legislative history. See Br. for the Secretary of Labor & EEOC as Amici Curiae in Support of Plaintiff-Appellant at pp. 6-7, Rosenfield v. GlobalTranz Enters., Inc., -- F.3d --, 2015 WL 859940 (9th Cir. 2015) (No. 13-15292) (“Rosenfield Br.). The EEOC and the Department of Labor agree that the determination of whether an employee engaged in protected activity under the FLSA—including a managerial employee—should be evaluated under the criteria set out in Kasten, 131 S. Ct. at 1335. Under Kasten’s “fair notice” rule, an employee’s “complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 131 S. Ct. at 1335; see generally Rosenfield Br. at pp. 11-12 (noting that McKenzie and Claudio-Gotay pre-date Kasten and that the policy concerns they cite in support of the manager rule “are largely obviated by Kasten’s clear enunciation of a notice requirement”).

The Ninth Circuit recently decided Rosenfield. The court agreed with the government that Kasten’s “fair notice” rule supersedes the manager rule, although the court allowed that “when determining whether an employee has ‘filed any complaint,’ the employee’s role as a manager often is an important contextual element.” Rosenfield v. GlobalTranz Enterprises, Inc., -- F.3d -- , 2015 WL 859940, at *4 (9th Cir. 2015). The Ninth Circuit’s rejection of any “special bright-line rule” for managers under the FLSA, id. at 1, militates in favor of rejecting a similar rule under Title VII.

E. The manager rule is unworkable and unnecessary.

This Court should also reject the manager rule under Title VII because it has proven to be unworkable. See Deborah L. Brake, Retaliation in the EEO Office, 50 Tulsa L. Rev. 1, 24-40 (2014) (discussing the “doctrinal incoherence” of the manager rule). The first problem is that the rule lacks any limiting principle. It was initially understood that the rule applied only to employees working in human resources or personnel departments, so the rule was raised only in those cases. See, e.g., McKenzie, 94 F.3d 1478 (applying the rule to personnel director); HBE, 135 F.3d 543 (holding the rule inapplicable to director of personnel); Johnson, 215 F.3d 561 (holding the rule inapplicable to vice-president of human resources). But the manager rule has since been raised as an issue in cases involving employees who have little, if anything, to do with human resources or personnel. This Court, for instance, has applied the manager rule to an engineer with a duty to monitor security guards (Claudio-Gotay) and has considered whether it applies to a scientist with a mid-level management position (Collazo). It is no surprise that the manager rule has expanded beyond human resources or personnel employees because, by its own logic, the rule applies to any manager—or even any employee—with a duty to report discrimination. This case demonstrates the far-reaching impact of the manager rule, as Pippin and Parker were housekeeping managers, not human resources employees. Yet, the court held that the manager rule barred their claims simply because Boulevard Motel—as with nearly all employers in the wake of Ellerth, Faragher, and Kolstad—requires managers to report discrimination.

But perhaps the more problematic aspect of the manager rule is its inconsistent application. Courts applying the rule lack any agreement on what it means to “step outside” one’s ordinary employment role and take action adverse to the company. In Claudio-Gotay, 375 F.3d at 102-03, this Court held that the plaintiff failed to step outside his normal role and take action adverse to the employer when he raised concerns about overtime violations and then refused to sign off on invoices that he believed violated the FLSA’s overtime provisions. In HBE, however, the Eighth Circuit held that the plaintiff did step outside his ordinary employment role as director of personnel when he raised concerns about firing an employee he believed was targeted based on his race and subsequently refused to fire him. HBE, 135 F.3d at 554. It is impossible to reconcile these outcomes, as in each case the plaintiff was fired after raising concerns about potentially unlawful conduct and then refusing to engage in potentially unlawful acts.

It is even harder to square HBE with the Eleventh Circuit panel’s application of the manager rule in Brush. In Brush the Eleventh Circuit panel held that the plaintiff had not stepped outside her ordinary employment role when she investigated sexual harassment and repeatedly urged Sears to report to law enforcement the multiple rapes of an employee by her supervisor. 466 F. App’x at 787. It is difficult to understand how the refusal to fire an employee targeted because of his race constitutes “stepping outside” the ordinary duties of a personnel director—whose duties presumably include ensuring compliance with EEO laws—and taking action adverse to the company, while an investigator’s urging that an employer report to the police rape in the workplace is just part of her job duties and not adverse to her employer.

The district court’s application of the manager rule in this case further underscores the rule’s inconsistent application. The district court held that Parker had not stepped outside her ordinary employment role even when she took it upon herself to handwrite Martin’s harassment complaint. In Littlejohn, however, the Second Circuit held that if an employee with a duty to report discrimination “actively supports” others in asserting their statutory rights, than she has engaged in protected activity. 795 F.3d at 318. Parker’s drafting of Martin’s complaint for her certainly would seem to constitute “active support,” as nothing in the district court’s opinion suggests that supervisors had a duty to write out their subordinates’ harassment complaints. Thus, under the Second Circuit’s rule for engaging in oppositional conduct, Parker, at least, would seem to escape the manager rule, providing another example of the disparate application of the rule.

Finally, rejection of the manager rule under Title VII will not result in a proliferation of litigation, which was the original justification for the rule. See Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 628 (5th Cir. 2008). Specifically, courts justified their adoption of the manager rule by reasoning that if counseling and communicating complaints are part of a manager’s ordinary job duties, then “nearly every activity in the normal course of a manager’s job would potentially be protected,” rendering employers unable to terminate “management employees, human resources employees, and legal employees . . . without fear of a lawsuit.” Id. at 628. This purported justification for the manager rule does not withstand scrutiny.

A managerial employee with a duty to report or investigate discrimination still must satisfy the same requirements as any other employee alleging retaliation under the opposition clause. An employee must still satisfy the definition of “oppose” set forth in Crawford, 555 U.S. at 276-77. Also, in general, an employee’s opposition must be based on a reasonable and good faith belief that the opposed practice is unlawful (or would be if repeated), and the plaintiff’s manner of opposition must be reasonable. See Collazo, 617 F.3d at 48 (stating that the opposition clause requires that plaintiff have “a good faith, reasonable belief that the underlying challenged actions were unlawful”) (internal quotation marks and citation omitted); 2 EEOC Compliance Manual, Section 8: Retaliation, § 8-II(B)(3) (May 20, 1998), available at http://www.eeoc.gov/policy/docs/retal.html (stating that the opposition clause “does not protect every protest against job discrimination,” as it applies only to reasonable protests, and plaintiffs must have a reasonable and good faith belief that the opposed practices were unlawful).

A plaintiff who satisfies these requirements for oppositional conduct must also establish the other prongs of the prima facie case, including a materially adverse action and causation. See Collazo, 617 F.3d at 46 (prima facie case requires protected activity, adverse action, and causation); Warren v. Ohio Dep’t of Pub. Safety, 24 F. App’x 259, 265-66 (6th Cir. 2001) (holding that the opposition clause protects the plaintiff, a human resources director, but affirming summary judgment because she failed to establish a causal connection between her involvement with internal investigations and her termination). Of course, when an employee establishes a prima facie case, the employer may proffer a legitimate, non-retaliatory reason for the adverse action, and a plaintiff proceeds to trial only upon showing a jury question as to pretext. Thus, rejecting the manager rule under Title VII will not mean that every HR employee, or every managerial employee with a duty to report discrimination, will have a trial-worthy claim of retaliation.

CONCLUSION

Parker and Pippin engaged in exactly the type of activity that Title VII’s anti-retaliation provision seeks to protect—they encouraged and aided a fellow employee in raising complaints of discrimination and opposed management’s failure to adequately respond to the allegation. In doing so, they furthered Title VII’s goal of ridding workplaces of discrimination. The manager rule, however, would bar their claims, thereby exposing them to retaliation for furthering Title VII’s goal of eradicating discrimination. Because the text of Title VII does not allow for such a rule and because the goals and objectives of Title VII directly conflict with such a rule, this Court should reject the manager rule.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

________________________

/s/ ANNE NOEL OCCHIALINO Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, 5^th Fl.

Washington, D.C. 20507

(202) 663-4724

Annenoel.Occhialino@EEOC.gov

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] The Statement of Facts draws solely from the district court’s opinion. “Add.*” refers to the corresponding page of the Plaintiffs’ Addendum.

[3] The plaintiffs also sued under the Maine Whistleblower Protection Act, 26 M.R.S. § 833(1)(A). Applying state law, the court held that the job duties exception barred their claims.