Page

A. The “manager rule” invoked in some FLSA cases should not be applied when determining whether management and human-resources employees engaged in protected activity in Title VII retaliation cases. 4

1. Title VII provides broad protection against retaliation for “opposition” and “participation” activity. 4

2. Regardless of its validity in the FLSA context, the manager rule has no place in cases involving Title VII’s antiretaliation provision. 8

a. The manager rule appears nowhere in the text of Title VII. 9

b. The manager rule undercuts Title VII’s objectives. 13

c. Numerous other courts of appeals have refused to apply the manager rule in Title VII cases, and none has affirmatively endorsed the rule in a published decision. 15

d. Application of the manager rule to Title VII cases is unsettled in this Circuit, and Brush, an unpublished decision of this Court, is unpersuasive. 17

e. Existing protections are sufficient to protect employers from unmeritorious retaliation claims under Title VII. 20

B. An employee’s actions relating to a previous employer can qualify as protected activity under Title VII. 22

CONCLUSION.. 27

CERTIFICATE OF COMPLIANCE.. 28

CERTIFICATE OF SERVICE.. 29

TABLE OF CITATIONS

Page(s)

Cases

Berg v. La Crosse Cooler Co.,
612 F.2d 1041 (7th Cir. 1980).................................................. 14

Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc).............................. 25

Brush v. Sears Holdings Corp.,
466 F. App’x 781 (11th Cir. 2012)............................... 3, 18, 19

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

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)...................................................................... 14

Butler v. Ala. Dep’t of Transp.,
536 F.3d 1209 (11th Cir. 2008)......................................... 25, 26

Claudio-Gotay v. Becton Dickinson Caribe, Ltd.,
375 F.3d 99 (1st Cir. 2004)....................................................... 13

Collazo v. Bristol-Myers Squibb Mfg., Inc.,
617 F.3d 39 (1st Cir. 2010)................................................ 12, 17

*Crawford v. Metro. Gov’t of Nashville & Davidson Cnty.,
555 U.S. 271 (2009).................................................. 5, 10, 11, 19

*DeMasters v. Carilion Clinic,
796 F.3d 409 (4th Cir. 2015).............................................. passim

Dixon v. Hallmark Cos.,
627 F.3d 849 (11th Cir. 2010).................................................... 7

East v. Romine, Inc.,
518 F.2d 332 (5th Cir. 1975).................................................... 24

EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015)...................................................... 11, 20, 23

EEOC v. HBE Corp.,
135 F.3d 543 (8th Cir. 1998).................................................... 17

EEOC v. Kumi Mfg. Ala., LLC,
2011 WL 93786 (M.D. Ala. Jan. 11, 2011)..................... 25, 26

EEOC v. New Breed Logistics,
783 F.3d 1057 (6th Cir. 2015).................................................... 5

EEOC v. Total Sys. Servs., Inc.,
221 F.3d 1171 (11th Cir. 2000).................................................. 4

*Flowers v. Columbia Coll. Chi.,
397 F.3d 532 (7th Cir. 2005).................................................... 24

Furcron v. Mail Ctrs. Plus, LLC,
843 F.3d 1295 (11th Cir. 2016).................................................. 5

Glover v. S.C. Law Enf’t Div.,
170 F.3d 411 (4th Cir. 1999)...................................................... 7

Gogel v. Kia Motors Mfg. of Ga., Inc.,
967 F.3d 1121 (11th Cir. 2020) (en banc)............ 6, 17, 18, 21

Hagan v. Echostar Satellite, L.L.C.,
529 F.3d 617 (5th Cir. 2008)....................................... 13, 20, 22

Harrison v. Benchmark Elecs. Huntsville, Inc.,
593 F.3d 1206 (11th Cir. 2010).................................................. 5

Heneage v. DTE Energy,
614 F. App’x 893 (9th Cir. 2015)............................................ 24

*Jackson v. Genesee Cnty. Rd. Comm’n,
999 F.3d 333 (6th Cir. 2021).............................................. passim

Johnson v. Univ. of Cincinnati,
215 F.3d 561 (6th Cir. 2000)............................................. 14, 16

Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1 (2011)........................................................................ 12

Kolstad v. Am. Dental Ass’n,
527 U.S. 526 (1999)................................................................... 15

*Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015).................................. 11, 16, 19, 20

McKenzie v. Renberg’s Inc.,
94 F.3d 1478 (10th Cir. 1996)....................................... 9, 13, 16

*McMenemy v. City of Rochester,
241 F.3d 279 (2d Cir. 2001)..................................................... 23

*Merritt v. Dillard Paper Co.,
120 F.3d 1181 (11th Cir. 1997).......................................... passim

Nelson v. Health Servs., Inc.,
No. 21-11319 (11th Cir. filed Apr. 21, 2021)....................... 17

Pippin v. Boulevard Motel Corp.,
835 F.3d 180 (1st Cir. 2016)..................................................... 17

Poff v. Oklahoma ex rel. Okla. Dep’t of Mental Health & Substance Abuse Servs.,
683 F. App’x 691 (10th Cir. 2017).......................................... 16

Pullman-Standard v. Swint,
456 U.S. 273 (1982)................................................................... 25

Robinson v. Shell Oil Co.,
519 U.S. 337 (1997)...................................................... 13, 23, 25

Rosenfield v. GlobalTranz Enters., Inc.,
811 F.3d 282 (9th Cir. 2015)...................................................... 9

Scott v. Sarasota Drs. Hosp., Inc.,
688 F. App’x 878 (11th Cir. 2017) (per curiam)................... 24

Smith v. Sec’y of the Navy,
659 F.2d 1113 (D.C. Cir. 1981)............................................... 16

Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981)................................................................... 25

Statutes

Fair Labor Standards Act, 29 U.S.C. §§ 203 et seq................ passim

*29 U.S.C. § 215(a)(3)......................................................... 12, 13

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

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

42 U.S.C. § 2000e(f)................................................................... 10

Other Authorities

*EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), 2016 WL 4688886................................................................................................. passim

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

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the primary agency charged by Congress with administering and enforcing federal laws prohibiting workplace discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court held that plaintiff’s testimony in a Title VII suit against a prior employer was not protected by Title VII’s antiretaliation provision and that defendants could therefore lawfully fire her because of that testimony. Because an affirmance of the district court’s ruling would seriously undermine Title VII’s antiretaliation protections, the EEOC offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. Did the district court err in concluding that the “manager rule” — a doctrine derived from certain Fair Labor Standards Act (“FLSA”) cases — applies when evaluating whether a human-resources official engaged in activity protected by Title VII’s antiretaliation provision?

2. Did the district court err in holding that an employee does not engage in activity protected by Title VII’s antiretaliation provision if the activity concerns her previous employer rather than the employer that fired her?

PERTINENT STATUTORY PROVISIONS

Pertinent statutory provisions are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

This is a T itle VII retaliation suit that Plaintiff-Appellant Marie Patterson brought against Defendants-Appellees Georgia Pacific, LLC, and Alabama River Cellulose, LLC (collectively, “Georgia Pacific”). While employed as a human-resources official at Georgia Pacific, Patterson was deposed in a Title VII pregnancy-discrimination lawsuit against Memorial Hermann, for which she had previously worked as a human-resources official. Notice of Patterson Dep., Adams v. Memorial Hermann, No. 4:15-cv-1270 (S.D. Tex.), R.87; see also R.110-2 at 10-11.[2] As relevant here, Patterson claims that Georgia Pacific fired her because of her deposition testimony supporting the plaintiffs in that suit.

The district court granted Georgia Pacific summary judgment on Patterson’s retaliation claim on the sole ground that Patterson did not engage in activity protected by Title VII’s antiretaliation provision when she “oppos[ed] pregnancy discrimination by her former employer” and “[provided] deposition testimony in the related case” against it. R .141 at 2, 6, 9. The court based its conclusion on two independent considerations. First, the court held that Patterson’s conduct was not protected under the “manager rule,” a doctrine applied in some FLSA precedents. R.141 at 6-7. Alternatively, the court concluded that Patterson’s activity was unprotected because it concerned a former employer, not Georgia Pacific. R.141 at 9.

SUMMARY OF THE ARGUMENT

The district court misinterpreted Title VII in two ways in concluding as a matter of law that Patterson did not engage in activity protected by Title VII’s antiretaliation provision. First, the court incorrectly grafted an additional requirement onto Title VII retaliation claims, applicable only to management and human-resources personnel, under which Title VII protects their opposition to unlawful employment practices and their participation in Title VII proceedings only when such activities involve stepping outside their professional role. This requirement, known as the “manager rule,” is derived from certain retaliation cases arising under the FLSA.

Regardless of the manager rule’s validity in FLSA cases, it runs afoul of Title VII’s text and undermines that statute’s important purposes. Accordingly, this Court should join every other court of appeals to have decided the issue in a published decision and hold that the manager rule has no place in Title VII cases. Although this Court applied the manager rule in an unpublished Title VII decision, Brush v. Sears Holdings Corp., 466 F. App’x 781, 787 (11th Cir. 2012), this Court should not follow Brush because Brush did not analyze Title VII’s text or purposes, did not recognize that the manager rule arose in the distinct FLSA context, and was issued prior to contrary precedent in other courts of appeals.

Second, the district court held that opposition and participation activity is not protected under Title VII’s antiretaliation provision when it pertains to a prior employer. That conclusion contravenes Title VII’s text, subverts the statute’s animating remedial purpose, and conflicts with court of appeals precedent.

Because the district court based its rejection of Patterson’s retaliation claim solely on its incorrect rulings on these two legal issues, this Court should reverse and remand for further proceedings on that claim.

ARGUMENT

1. T itle VII provides broad protection against retaliation for “opposition” and “participation” activity.

Under Title VII, an employer may not retaliate against an employee because she (1) “has opposed any practice made an unlawful employment practice” under Title VII or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 2000e-3(a). The first part is known as the antiretaliation provision’s “opposition clause,” while the second part is the “participation clause.” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). A plaintiff establishes that she has engaged in protected activity so long as she satisfies the requirements of either clause.

The opposition clause’s definition of “opposition” is “expansive.” EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015). As the Supreme Court explained in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009), “When 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.” Id. at 276 (alteration in original) (citation omitted).

In particular, Crawford held that the opposition clause covered an employee’s “ostensibly disapproving account of sexually obnoxious behavior,” even though the employee provided her account in response to questioning rather than on her own initiative. Id. The Court explained that, “in ordinary discourse, . . . we would naturally use the word [‘oppose’] to speak of someone who has taken no action at all to advance a position beyond disclosing it.” Id. at 277. Thus, “[p]rotected ‘opposition activity’ broadly includes the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), 2016 WL 4688886, at *7 (“Retaliation Guidance”);[3] see Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (similar). Both in district court and in its initial appellate brief, Georgia Pacific did not dispute that Patterson’s conduct at issue here — her “opposition to pregnancy discrimination by her former employer [Memorial Hermann], and her deposition testimony in the related case against [Memorial Hermann],” R.141 at 6 (district court opinion) — constituted “opposition” activity. The district court did not independently address the issue. Thus, it is not presented on appeal.

This Court has recognized two additional limitations on conduct constituting protected opposition under Title VII. Neither is at issue here. First, as recently reaffirmed in Gogel v. Kia Motors Manufacturing of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020) (en banc), “[O]pposition to allegedly unlawful employment practices must be done in a reasonable manner.” Id. at 1141; accord Retaliation Guidance, 2016 WL 4688886, at *8-9, *11. Gogel is particularly instructive because the plaintiff there, like Patterson, was a human-resources official. In Gogel, the Court held that the plaintiff would be acting in an unreasonable manner if she actively recruited another employee to file a Title VII suit against the company, because such conduct would “so interfere[] with the performance of her job duties that it [would] render[] her ineffective in the position for which she was employed.” 967 F.3d at 1139 (citation and alterations omitted). Because Georgia Pacific did not argue in district court or in its initial response brief on appeal that Patterson’s relevant conduct ran afoul of the reasonable-manner requirement, and because the district court did not address that question, that requirement is not at issue in this appeal.

Second, protected opposition conduct must be premised on “a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Dixon v. Hallmark Cos., 627 F.3d 849, 857 (11th Cir. 2010); accord Retaliation Guidance, 2016 WL 4688886, at *9-10. Again, because Georgia Pacific never argued in district court or on appeal that Patterson lacked such a good-faith, reasonable belief, and because the district court did not address the issue, this limitation is likewise not presented here.

This Court’s interpretation of the participation clause is similarly expansive. As noted above, the clause extends protection to any employee who has “made a charge, testified, assisted, or participated in any manner in [a Title VII] investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). The reference to “testified” contains no “restrictive language that limits its reach,” and the use of “any” in the phrase “participated in any manner” is likewise unbounded. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997). Thus, this Court has held that the clause applies to deposition testimony given in a Title VII action. Id. at 1186-87 (explaining that Title VII protects testimony even if a witness testifies unwillingly and does not “aid or assist the claimant”); Glover v. S.C. Law Enf’t Div., 170 F.3d 411, 414 (4th Cir. 1999) (“[A]ll testimony in a Title VII proceeding is protected.”). Georgia Pacific never disputed in district court or on appeal that Patterson’s deposition testimony in the Title VII suit against Memorial Hermann qualifies as “testi[mony], assist[ance], or participat[ion] in any manner” in a Title VII “proceeding [or] hearing,” 42 U.S.C. § 2000e-3(a), and the district court likewise did not address that issue. It is therefore not presented on appeal.

2. Regardless of its validity in the F LSA context, the manager rule has no place in cases involving Title VII’s antiretaliation provision.

Georgia Pacific did argue, and the district court agreed, that under the “manager rule” applied in some FLSA cases, Patterson’s deposition testimony was unprotected. In so ruling, the district court added an atextual requirement to Title VII’s antiretaliation provision applicable only to management and human-resources employees: that their opposition or participation activity also satisfy the stringent conditions of the manager rule. R.141 at 6-9. Contrary to the district court’s opinion, the manager rule has no place in Title VII cases because it is fundamentally inconsistent with the statute’s text and purposes, as every other circuit to have decided the issue in a published opinion has held.[4] Accord Retaliation Guidance, 2016 WL 4688886, at *11 & n.67, *12 (“Protected activity includes [equal employment opportunity] complaints by managers, human resources staff, and [equal employment opportunity] advisors — even when those complaints happen to grow out of the individual’s job duties — provided the complaint meets all the other relevant requirements for protected activity.”). The district court therefore erred in concluding that Patterson’s retaliation claim could not proceed under the manager rule.

a. The manager rule appears nowhere in the text of T itle VII.

The manager rule, a judicially created doctrine some courts have embraced, originated in the context of the FLSA, 29 U.S.C. §§ 203 et seq. See McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996). Under the rule, a managerial or human-resources employee is protected from retaliation for certain FLSA-related activity only if she “step[s] outside . . . her role of representing the company,” DeMasters v. Carilion Clinic, 796 F.3d 409, 421 (4th Cir. 2015) (citation omitted), or “crosse[s] the line from being an employee merely performing her job . . . to an employee lodging a personal complaint,” McKenzie, 94 F.3d at 1486. But see Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282, 287-88 (9th Cir. 2015) (not fully accepting the manager rule in the FLSA context).

The rule finds no support in the text of Title VII’s antiretaliation provision, which is, in the words of this Court, “straightforward and expansively written.” Merritt, 120 F.3d at 1186. The provision protects an employee from retaliation if she “has opposed any practice made an unlawful employment practice” under Title VII or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the statute. 42 U.S.C. § 2000e-3(a). The Supreme Court has already confirmed that “[t]he term ‘oppose,’” as used in this provision, “carries its ordinary meaning,” i.e., “[t]o resist or antagonize . . . ; to contend against; to confront; resist; withstand.” Crawford, 555 U.S. at 276 (quoting Webster’s New International Dictionary 1710 (2d ed. 1957)). Similarly, the unmodified word “testified” and phrase “participated in any manner” are unambiguous; they encompass providing deposition testimony in a Title VII case. Merritt, 120 F.3d at 1185-86. Nothing in the statute requires assessing an employee’s regular job duties to determine whether her opposition or participation activities qualify for antiretaliation protection.

The manager rule singles out managerial and human-resources officials to deprive them of a measure of statutory protection against retaliation, but Title VII provides no textual basis for doing so. Title VII’s antiretaliation provision prohibits “discriminat[ion] against any . . . employees” because of their opposition to an unlawful employment practice or their participation in a Title VII proceeding. 42 U.S.C. § 2000e-3(a) (emphasis added). The word “any,” unaccompanied by limiting language, “is not ambiguous; it has a well-established meaning . . . . ‘[A]ny’ means all.” Merritt, 120 F.3d at 1186; see also Jackson, 999 F.3d at 345 (holding that the use of “any” in § 2000e-3(a) “suggests that all employees are subject to the same standard”). Although Title VII’s definition of “employee” exempts specific individuals, such as certain elected officials, it contains no carve-out for management or human-resources employees. 42 U.S.C. § 2000e(f). Thus, Title VII bars retaliation against “all” non-exempt employees, which perforce includes managers and human-resources personnel. See Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (“The plain language of [the] opposition clause . . . does not distinguish among entry-level employees, managers, and any other type of employee.”); DeMasters, 796 F.3d at 422 (similar).

By grafting onto Title VII’s clear statutory provision an additional requirement that a manager or human-resources official “cross[] the line from being an employee performing her job . . . to an employee lodging a personal complaint,” R.141 at 7 (citation omitted), the district court impermissibly “add[ed] words to the law to produce what [it] thought to be a desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015); see also, e.g., Merritt, 120 F.3d at 1187 (courts “cannot add to the terms of Title VII’s anti-retaliation provision what Congress left out”); cf. Crawford, 555 U.S. at 277 (rejecting the idea that protected opposition must be “active” or “consistent” because such a requirement has no foundation in the statutory text); Merritt, 120 F.3d at 1186-87 (rejecting the argument that protected participation must be voluntary or benefit a Title VII claimant).

Regardless of the rule’s validity in FLSA cases, differences in the scope and breadth of the antiretaliation provisions of the FLSA and Title VII “counsel against importing the ‘manager rule’ into Title VII.” DeMasters, 796 F.3d at 422 (citation omitted). The FLSA’s more limited definition of protected activity includes only (1) “fil[ing] any complaint”; (2) “institut[ing] or caus[ing] to be instituted any proceeding [related to the FLSA]”; (3) “testif[ying] . . . in any such proceeding”; and (4) “serv[ing] . . . on an industry committee.” 2 9 U.S.C. § 215(a)(3). Thus, the FLSA’s antiretaliation provision contains no equivalent to Title VII’s opposition clause, which covers “oppos[ition] [to] any . . . unlawful employment practice,” 42 U.S.C. § 2000e-3(a). Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 n.5 (1st Cir. 2010); see also Jackson, 999 F.3d at 346. “[T]he conduct protected by the FLSA,” accordingly, “is far more constricted than the broad range of conduct protected by Title VII’s anti-retaliation provision.” DeMasters, 796 F.3d at 422; cf. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 10-11 (2011) (noting that the antiretaliation provisions of the FLSA and Title VII “use somewhat different language” and suggesting that the latter provision is “broader”).

Similarly, textual differences between the FLSA and Title VII’s participation clause counsel against applying the manager rule to Title VII participation-clause cases, including those involving testimony. Whereas the FLSA’s antiretaliation provision covers only “fil[ing]” a complaint or “institut[ing]” or “testif[ying] . . . in” an FLSA-related proceeding, 29 U.S.C. § 215(a)(3), Title VII’s participation clause protects not only “testify[ing],” but also “assist[ance]” and “participat[ion] in any manner” in a Title VII proceeding. 42 U.S.C. § 2000e-3(a) (emphasis added). The greater breadth of Title VII’s participation clause — which includes the catch-all phrases “participat[ion]” and “in any manner,” id. — is significant. As noted above, this Court has explained that “the word ‘any’” in this phrase “means all,” and that deposition testimony qualifies as “participat[ion]” within the meaning of the statute. Merritt, 120 F.3d at 1186 (citation omitted). Applying the manager rule to deprive testimony in Title VII proceedings of protection is thus incompatible with the participation clause’s broad text, as interpreted by Merritt.

In addition, court of appeals decisions applying the manager rule in the FLSA context appear to invoke the rule to evaluate whether a manager has “filed any complaint” within the meaning of the FLSA, not whether a manager has “testified” in an FLSA-related proceeding, 29 U.S.C. § 215(a)(3). See, e.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624-25, 627-28 (5th Cir. 2008); Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 101-02 (1st Cir. 2004); see also McKenzie, 94 F.3d at 1486 (not explicitly analyzing whether employee “filed any complaint,” but underscoring that the employee “never crossed the line from . . . merely performing her job as a personnel director to . . . lodging a personal complaint about the wage and hour practices of her employer” (emphasis added)). There is therefore no basis for applying that rule to evaluate whether a manager has “testified, assisted, or participated in any manner” in a Title VII proceeding under 42 U.S.C. § 2000e-3(a).

b. The manager rule undercuts Title VII’s objectives.

The manager rule also subverts several important goals animating Title VII. The Supreme Court has explained that in order to reduce workplace discrimination, employees must have “unfettered access to statutory remedial mechanisms,” Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997), necessitating “broad protection from retaliation,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Title VII’s antiretaliation provision is designed to ensure the “cooperation” of employees serving as “witnesses” and filing complaints, id., and to “encourage employees to call to their employers’ attention discriminatory practices of which the employer may be unaware or which might result in protracted litigation to determine their legality if they are not voluntarily changed,” Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980) (explaining that “the frank and nondisruptive exchange of ideas between employers and employees” is “one of the chief means” of “eliminat[ing] . . . employment discrimination by informal means”). Indeed, in certain respects, Title VII “provide[s] broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based, or gender-based discrimination” because “effective enforcement could . . . only be expected if employees felt free to approach officials with their grievances.” Burlington N., 548 U.S. at 66-67 (citation omitted).

The manager rule hampers this goal by discouraging managers and human-resources officials — precisely those individuals whose job tasks, training, and expertise make them best suited to identify and remediate unlawful conduct — from voicing their concerns about such conduct or participating in a Title VII proceeding. See DeMasters, 796 F.3d at 424 n.8 (noting “the chilling effects of the ‘manager rule’ on the reporting of workplace discrimination”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (rejecting the argument that Title VII countenances an employer’s “retaliat[ion] against the person best able to oppose the employer’s discriminatory practices”).

Relatedly, the manager rule conflicts with the principle that Congress intended Title VII to create incentives for employers to adopt policies and procedures encouraging the prompt reporting, investigation, and remediation of discrimination. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 546 (1999). Managerial and human-resources employees play a critical role in “facilitat[ing] the use of these procedures.” DeMasters, 796 F.3d at 423. But “[a]pplying the ‘manager rule’ in the Title VII context” discourages these employees from assisting with these remediation mechanisms, “put[ting] in motion a downward spiral of Title VII enforcement: If they remain silent, victims of discrimination are less likely to use their employers’ internal investigation mechanisms in the first place, . . . allowing discrimination in the workplace to go undeterred and unremedied.” Id.

c. Numerous other courts of appeals have refused to apply the manager rule in T itle VII cases, and none has affirmatively endorsed the rule in a published decision.

Multiple decisions from other circuits have rejected the manager rule and its underlying premises in the Title VII context. The Second Circuit explicitly “decline[d] to adopt the manager rule” in an opposition-clause case, reasoning that its “focus on an employee’s job duties, rather than the oppositional nature of the employee’s complaints or criticisms, is inapposite in the context of Title VII retaliation claims.” Littlejohn, 795 F.3d at 317 n.16. Similarly, the Fourth Circuit declared, “[T]he ‘manager rule’ has no place in Title VII jurisprudence.” DeMasters, 796 F.3d at 413; see id. at 424. The Sixth Circuit recently relied on “both the text of Title VII and [its] precedent” to conclude that “[t]here are good reasons . . . not to extend the FLSA manager rule to Title VII claims.” Jackson, 999 F.3d at 346; see also Johnson, 215 F.3d at 580; Smith v. Sec’y of the Navy, 659 F.2d 1113, 1121-22 (D.C. Cir. 1981) (concluding that Title VII’s antiretaliation provision prohibited reprisals against an employee for his work as an equal employment opportunity counselor); Poff v. Oklahoma ex rel. Okla. Dep’t of Mental Health & Substance Abuse Servs., 683 F. App’x 691, 701 & n.5 (10th Cir. 2017) (rejecting contention that because the plaintiff’s job “included investigating claims of sexual harassment,” his opposition to perceived sexual harassment was unprotected by Title VII; explaining it found “no support, in either the text of Title VII or related case law, for a requirement that the plaintiff’s opposition fall outside the scope of his employment in order to be protected by Title VII”); see also id. at 703.^{^[5]}

The First Circuit has questioned the applicability of the manager rule to Title VII claims without deciding the issue definitively. See Collazo, 617 F.3d at 49 n.5 (noting, in the course of finding that an employee had engaged in protected conduct, “that the language of the antiretaliation provision of the FLSA is different from that of Title VII” and lacks an opposition clause, but analyzing Title VII claim under the manager rule for the sake of argument); see also Pippin v. Boulevard Motel Corp., 835 F.3d 180, 183-84 (1st Cir. 2016) (rejecting a “job duties exception” to a state-law antiretaliation provision that defined protected activity to mean opposition to unlawful activity); cf. EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (in a pre-Crawford Title VII decision, reciting in dictum McKenzie’s requirement of “‘step[ping] outside’ [the] employment role,” but affirming judgment for the plaintiff in relevant part). Importantly, no circuit has squarely held in a published decision that the manager rule applies in the Title VII context.

d. Application of the manager rule to T itle VII cases is unsettled in this Circuit, and Brush, an unpublished decision of this Court, is unpersuasive.

This Court has not definitively ruled in a published opinion on whether the manager rule applies to Title VII retaliation cases.[6] The recent en banc decision in Gogel concerned a human-resources official’s Title VII retaliation claim, but it did not discuss the manager rule. Gogel, 967 F.3d at 1126, 1127, 1133. As noted above, Gogel held that the opposition activity at issue there — recruiting another employee to file a Title VII suit against the employer — was unprotected because the manner of opposition was unreasonable. Id. at 1139. In dictum, the Court contrasted that conduct with activity that was protected under the statute: the human-resources official there “enjoyed the right to report to management any concerns she had” about her employer’s treatment of other employees. Id. at 1144. Gogel described the plaintiff’s “internal advocacy before [the company’s] management on behalf of other employees” as “clearly protected conduct.” Id. The Court did not, however, expressly reject (or endorse) the manager rule.

Although this Court’s unpublished decision in Brush concluded that the manager rule applies to at least some Title VII retaliation cases, 466 F. App’x at 787, that case is nonbinding, and multiple reasons support rejecting Brush as unpersuasive. To begin, Brush did not analyze Title VII’s text or purposes when it applied the manager rule, much less assess whether the rule conflicts with them.[7] Brush also failed to recognize that the manager rule arose in the FLSA context, and did not consider whether textual differences between the FLSA and Title VII compel a different result in Title VII cases. Id. at 787 (relying on FLSA cases without noting that they arose under the FLSA); cf. DeMasters, 796 F.3d at 422 (“[W]e . . . ‘must take care to respect any differences in language and purpose between Title VII and the FLSA before adopting a rule from one to the other.’” (citation omitted)).

In addition, because Littlejohn, DeMasters, and Jackson all post-dated Brush, this Court could not look to the analyses in those opinions leading the Second, Fourth, and Sixth Circuits to reject the manager rule in Title VII retaliation cases. See Littlejohn, 795 F.3d at 317-18 & n.16; DeMasters, 796 F.3d at 422; Jackson, 999 F.3d at 345-46. Thus, Brush had no occasion to grapple with the reasoning undergirding those decisions.

Nor did Brush engage with Crawford’s conclusion that the definition of the statutory term “opposition” is expansive. Crawford, 555 U.S. at 276-77. Brush instead concluded that Crawford “pertained only to whether the reporting of a harassment claim was covered by Title VII where the reporting was solicited rather than volunteered.” Brush, 466 F. App’x at 787. Crawford certainly held that both voluntary and solicited reporting could constitute opposition (and, indeed, stated that a contrary rule would be “freakish,” id. at 278), but its discussion clearly extended beyond that narrow holding. Id. at 276-77.

Even if Brush were sufficiently persuasive as applied to opposition-clause cases, the decision involved only opposition conduct and did not purport to extend to participation activities. See Brush, 466 F. App’x at 785. Thus, Brush provided no convincing rationale to support extending its holding to the participation-clause context. A welter of reasons, discussed above at pp. 12-13, counsel against doing so.

e. Existing protections are sufficient to protect employers from unmeritorious retaliation claims under T itle VII.

In the FLSA context, some courts have raised the policy-based argument that, without the manager rule, managers and other human-resources employees might be able to establish a prima facie case of retaliation whenever they experience a materially adverse action, because nearly all of their job duties could potentially constitute protected activity. See, e.g., Hagan, 529 F.3d at 628; Littlejohn, 795 F.3d at 318 (noting that the defendants raised the argument in the Title VII context). According to its proponents, the manager rule is therefore necessary to avoid making affected employees excessively “difficult to discharge without fear of a lawsuit.” Hagan, 529 F.3d at 628. This rationale does not justify applying the manager rule to Title VII.

First, as noted above, policy objections cannot overcome the statutory text, Abercrombie, 575 U.S. at 774; Merritt, 120 F.3d at 1187-88, and there is no textual basis for applying the manager rule in Title VII cases. Second, this policy concern is misplaced because it ignores existing limitations on Title VII retaliation claims. As explained above, for Title VII’s opposition clause to apply, an employee must engage in “opposition” within the meaning of the statute; the manner of this opposition must be reasonable; and she must have a good-faith, reasonable belief that unlawful conduct occurred. See supra pp. 6-7. The reasonable-manner requirement, in particular, reflects a balancing of an employer’s need for an orderly workplace and an employee’s right to be free from retaliation. See Gogel, 967 F.3d at 1141; see generally Retaliation Guidance, 2016 WL 4688886, at *8-9 (noting, e.g., that a human-resources official’s manner of opposition would be unreasonable if her “protests render the employee ineffective in the job”). A plaintiff must also satisfy various requirements to be covered by the participation clause: she must “ma[ke] a charge, testif[y], assist[], or participate[] in any manner” in a Title VII “investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a).

Even if an employee is able to establish the protected-activity element of a prima facie case, moreover, she must still show that she suffered a materially adverse action and that the action was causally connected to her protected activity. Gogel, 967 F.3d at 1134-35. And even after an employee establishes a prima facie case, if her employer articulates a legitimate, non-retaliatory reason for the challenged action, she retains the burden of establishing that “her protected activity was a but-for cause of the alleged adverse action by the employer.” Id. at 1135 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). As this Court explained, although an employer may not retaliate against an employee for participating in a Title VII proceeding, such participation will not protect an employee who has engaged in otherwise terminable conduct. Merritt, 120 F.3d at 1188-89.

In sum, the FLSA’s manager rule has no place in Title VII. Even without this limitation, the numerous additional requirements a plaintiff must fulfill to prevail on her retaliation claim obviate any concerns that the atextual manager rule is needed to avoid a “litigation minefield.” Hagan, 529 F.3d at 628.

B. An employee’s actions relating to a previous employer can qualify as protected activity under T itle VII.

The district court erred when it concluded, alternatively, that Patterson “did not engage in ‘protected activity’ because her activity did not concern unlawful employment practices of her [current] employer,” Georgia Pacific. R.141 at 9. To the contrary, as a matter of both textual interpretation and consistency with Title VII’s objectives, protected conduct is not limited to activity relating to a current employer. Accord Retaliation Guidance, 2016 WL 4688886, at *15-16 (explaining that “[i]ndividuals who engage in protected activity include . . . those whose protected activity involved a different employer,” such as a “former employer”).

The plain text of both the opposition and participation clauses extends to activity involving employers other than an employee’s current employer. The opposition clause protects an employee who has “opposed any practice made an unlawful employment practice” under Title VII — not only the unlawful employment practices of her current employer. 42 U.S.C. § 2000e-3(a) (emphasis added). Similarly, the participation clause, which in relevant part protects against retaliation for “testify[ing]” or “participat[ing] in any manner” in a Title VII “proceeding,” is not limited to activity concerning a current employer. Id. (emphasis added). As noted above, because the use of the word “any” in both clauses is not accompanied by “any language limiting [its] breadth, . . . ‘any’ means all.” Merritt, 120 F.3d at 1186 (citation omitted). The district court’s attempt to restrict protection to activities concerning a current employer improperly imposed additional terms on the statute. See Abercrombie, 575 U.S. at 774; Merritt, 120 F.3d at 1187.

By restricting the scope of the antiretaliation provision, the district court’s interpretation also undermines an important purpose underlying Title VII’s antiretaliation provision — “[m]aintaining unfettered access to [Title VII’s] remedial mechanisms.” Robinson, 519 U.S. at 346. Adopting that interpretation would “significantly deter an employee’s use of Title VII remedial mechanisms because under that construction, the employee would be subject to lawful retaliation by all concurrent and future employers for protected activities involving his current employer.” McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001).

Every court of appeals to have decided the question in a published opinion has concluded that Title VII’s antiretaliation provision covers activity relating to any employer, including a prior employer. The Second Circuit, for example, has held that “Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.” McMenemy, 241 F.3d at 284; see id. at 283 (explaining that the “plain language” of Title VII’s participation and opposition clauses “does not support . . . limit[ing]” protected conduct to activity relating to the retaliating employer). The Seventh Circuit likewise has held that protection under Title VII’s antiretaliation provision does not turn on whether the employee’s activity involved his current employer. Flowers v. Columbia Coll. Chi., 397 F.3d 532, 533 (7th Cir. 2005) (explaining that the participation clause is not limited to charges filed against a current employer because “the phrase ‘against his employer’ is not in the statute”).

Other courts of appeals, including this Court, have adopted a similar position in unpublished decisions. See Scott v. Sarasota Drs. Hosp., Inc., 688 F. App’x 878, 880, 884 & n.10 (11th Cir. 2017) (per curiam) (citing McMenemy with approval to support the proposition that it did not matter that an employee’s “‘protected activity’ related to” the hospital in which she worked, “rather than” the employing placement agency that allegedly retaliated against her, “because Title VII covers all protected activity”); Heneage v. DTE Energy, 614 F. App’x 893, 895 (9th Cir. 2015) (plaintiff stated a claim for unlawful retaliation when she alleged that her prospective employer retaliated against her for engaging in protected activity relating to another employer).

In addition, in a closely related decision binding on this Court, the Fifth Circuit held that an employer did not rebut an applicant’s prima facie case of sex discrimination by asserting that its hiring decision was based in part on the applicant’s prior EEOC charges, including charges against other employers, because Title VII’s antiretaliation provision bars an employer from relying on such a consideration. East v. Romine, Inc., 518 F.2d 332, 337-38, 340-42 (5th Cir. 1975),[8] overruled on other grounds by Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), and Pullman-Standard v. Swint, 456 U.S. 273 (1982); cf. Robinson, 519 U.S. at 339, 346 (holding that the term “employees” in Title VII’s antiretaliation provision includes former employees, such that an individual may bring suit against his former employer for its postemployment actions allegedly taken in response to postemployment protected activity).

The district court relied on flawed reasoning to support its conclusion that only activity relating to a current employer is protected under Title VII’s antiretaliation provision. The court cited EEOC v. Kumi Manufacturing Alabama, LLC, 2011 WL 93786 (M.D. Ala. Jan. 11, 2011), an unpublished district court decision, for the proposition that “a complaint of discrimination ‘by a former employer, made to [an employee’s] then-current employer, is not [protected] opposition.’” R.141 at 9 (quoting Kumi, 2011 WL 93786, at *15). The court explained that Kumi relied on language in Butler v. Alabama Department of Transportation, 536 F.3d 1209, 1213 (11th Cir. 2008), stating that to make out a “prima facie case of retaliation under the opposition clause, a plaintiff must show that ‘he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.’” R.141 at 9 (quoting Kumi, 2011 WL 93786, at *15, in turn quoting and adding emphasis to Butler, 536 F.3d at 1213). This analysis — resting heavily on the phrase “the employer” in Butler — fails in at least two respects.

First, the district court limited its reasoning to the opposition clause. The court offered no justification for extending its ruling to the participation clause, which does not refer to “unlawful employment practices,” much less unlawful employment practices by one’s own employer. As noted above, the participation clause instead broadly encompasses “testify[ing]” and “participat[ing] in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a).

Second, Kumi was wrongly decided. Although Kumi correctly observed that the language of the opposition clause “is seemingly broad in scope,” it incorrectly concluded that Butler nevertheless restricted protected opposition to complaints about a current employer. Kumi, 2011 WL 93786, at *15. Butler’s observation that a plaintiff proceeding under the opposition clause must show a “good faith, reasonable belief that the employer was engaged in unlawful employment practices,” 536 F.3d at 1213, says nothing about the question here — whether “the employer” in question must be a current employer or can instead be a prior employer. Because Butler involved opposition to a current employer’s unlawful employment practices, it had no reason to — and did not — address whether opposition to a past employer’s conduct would also constitute protected activity.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

ANNE W. KING

Attorneys, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

September 8, 2021

[1] The EEOC takes no position on any other issue raised in this appeal.

[2] Citations to the district court record in this case take the form R.[docket entry number] at [CM/ECF-assigned page number].

[3] Although interpretations of Title VII in the EEOC’s Retaliation Guidance “are not controlling, they do constitute a body of experience and informed judgment to which [the Court] . . . may properly resort for guidance.” Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1214, 1216 n.10 (11th Cir. 2010) (citation omitted).

[4] Last year, the United States also expressed its view that the manager rule does not apply in the Title VII opposition-clause context. See Brief for United States as Amicus Curiae, Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333 (6th Cir. 2021) (No. 20-1334), 2020 WL 4228591, at *11-25.

[5] Poff explained that McKenzie is not to the contrary because it “dealt with a provision of the FLSA that prohibits retaliation against an employee who participates in proceedings under the FLSA,” and thus was “not relevant to a[] [Title VII] opposition clause claim.” 683 F. App’x at 701 n.5 (citing McKenzie, 94 F.3d at 1485). Although Poff stated in dictum that the FLSA provision “is analogous to Title VII’s participation clause,” id., it had no occasion to address whether the manager rule applies in the participation-clause context.

[6] The issue is presented in another case currently pending in this Court, Nelson v. Health Services, Inc., No. 21-11319 (11th Cir. filed Apr. 21, 2021). The EEOC also filed an amicus brief in Nelson.

[7] This Court did not have the benefit of any arguments on these points, as the parties did not brief them. See, e.g., Brief for Appellant, Brush, 466 F. App’x 781 (No. 11-10657), 2011 WL 2782949, at *45-51.

[8] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to October 1, 1981.