Rights Of Florida Retaliation Victims Expanded By Appellate Court Decision

Throughout the past twenty years, our Citrus County retaliation lawyers have represented Florida employees who have been retaliated against for complaining about workplace discrimination. Having litigated retaliation cases for decades, our Inverness, Florida retaliation attorneys know that employers have systematically attempted to limit the protection from retaliation afforded to employees under federal employment discrimination law. By narrowing the scope of protection against retaliation, employers know that many employees who complain about workplace discrimination will not have a remedy under federal employment discrimination law. In this article, our Citrus County retaliation lawyers explain how the decision by the U.S. Eleventh Circuit Court of Appeals in Patterson v. Georgia Pacific, LLC, 38 F.4th 1336 (11th Cir. 2022) thwarted the persistent and coordinated efforts of employers to immunize themselves from retaliation claims under federal employment discrimination law. 

Protection From Retaliation

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from discrimination on the basis race, color, national origin, sex, and religion. Title VII also contains an anti-retaliation provision. Under Title VII, employers are prohibited from retaliating against employees who complain about discrimination on the basis of race, color, national origin, sex, or religion.

For years, employers have vigorously endeavored to limit the scope of Title VII’s anti-retaliation provision. They have been successful. In an unpublished decision, the Eleventh Circuit in Brush v. Sears Holdings Corp., 466 Fed.Appx. 781 (11th Cir. 2012) adopted the so-called “manager rule.”  The Brush court ruled that a “management employee” who, “in the course of her normal job performance, disagrees or opposes” the perceived discriminatory employment practices of an employer is not protected from retaliation by Title VII.  Instead, the Brush court held that in order to be protected from retaliation under Title VII, a management employee “must cross the line from being an employee performing her job . . . to an employee lodging a personal complaint.”  Under Brush, therefore, a management employee is protected from retaliation by Title VII only when the employee is complaining about perceived discrimination towards him or her.

Because Brush is an unpublished decision, the decision is not binding precedent.  This means that the Eleventh Circuit and other federal district courts in the Eleventh Circuit are not required to follow the decision and are not bound by the “manager rule” adopted in the decision.  Although not precedential, federal district courts in the Eleventh Circuit have applied the “manager rule” based on Brush.

For example, the court in McMullen v. Tuskegee Univ., 184 F.Supp.3d 1316 (M.D. Ala. 2016) rejected an argument that Brush should not be followed because it is an unpublished decision and dismissed the employee’s retaliation claim based on an application of the “manager rule” articulated in Brush.  In other words, employer-friendly courts have used Brush to limit the scope of Title VII’s anti-retaliation provision and summarily dismiss retaliation claims by applying the “manager rule.” 

Retaliatory Discharge Lawsuit

In Patterson,the Eleventh Circuit confronted Brush head-on and addressed the issue of whether the “manager rule” should be applied to Title VII retaliation claims. In that case, a woman, Patterson, brought a retaliation claim against her former employer, Georgia Pacific, LLC (Georgia Pacific), pursuant to Title VII. Patterson claims Georgia Pacific violated Title VII by firing her in retaliation for opposing discriminatory employment practices.

In December 2015, Georgia Pacific hired Patterson to work as a senior HR manager. She was assigned to the company’s mill in Alabama. In June 2017, Patterson met with the mill’s plant manager, McIllwain, and told him that she believed two African-American employees had been passed over for job opportunities that they were qualified for and that they may have a valid race discrimination complaint. McIllwain responded by telling her, “Because of who you are you are not going to tell me how to run this mill.” He told her to leave his office.

Before working at Georgia Pacific, Patterson had been a “Human Resources Business Partner II” at Memorial Hermann Health System (Memorial Hermann). Her job responsibilities there had included managing employee complaints, giving advise about employment matters, and helping with employment law compliance. On June 29, 2017, Patterson was deposed in a pending Title VII lawsuit against Memorial Hermann. The Title VII lawsuit was brought by three former employees of Memorial Hermann who claimed that they had been fired because they were pregnant. The former employees deposed Patterson because she had been an HR manager at Memorial Hermann at the time they were fired.

Testified Against Prior Employer

In her deposition, Patterson testified that around the time Memorial Hermann terminated the former employees she had been part of several meetings and discussions about their terminations. When her bosses at Memorial Hermann decided to fire the former employees, Patterson testified that she had advised them “not to do anything” until she could consult with another HR advisor because she was worried that firing the pregnant employees could raise Family Medical Leave Act issues and violate their rights.

On June 12, 2017, Georgia Pacific’s HR director, Hawkins, went to Patterson’s office and asked her for details about her deposition testimony. Hawkins asked Patterson in regard to her deposition testimony: “Did you support or go against the employer?” When Patterson told him that she testified “on behalf of the ladies,” Hawkins told Patterson that she meant she “went against” her previous employer and that her having done so “made things clear” to him.

On July 19, 2017, a week after Hawkins had told Patterson that testifying against her former employer “made things clear” to him, Hawkins and McIllwain went into Patterson’s office and fired her. They did not give her a reason.

“Manager Rule” Extinguished

The trial court applied the “manager rule” adopted in Brush and ruled that Patterson was not protected from retaliation under Title VII because she was acting in her capacity as a HR manager when she opposed the alleged discriminatory practices of Memorial Hermann. Because Patterson was not protected from retaliation by Title VII under the “manager rule” articulated in Brush, the trial court dismissed Patterson’s retaliation claim. On appeal, the Eleventh Circuit reversed the trial court’s decision and reinstated Patterson’s retaliation claim.

At the outset of its opinion, the Eleventh Circuit observed that the so-called “manager rule” is more “aptly described as the ‘manager exception’ since it would exempt HR managers from the class of employees who are protected by Title VII’s anti-retaliation provision.” “The manager exception,” the appellate court noted, “would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer.”

In reversing the trial court, the Eleventh Circuit ruled that Title VII’s anti-retaliation provision “applies the same to all employees.” In supporting of its holding, the court of appeals explained that Title VII’s protection against retaliation extends to “any of [the employer’s] employees.” “HR managers,” the appellate court reasoned, “fall into the category of ‘all employees,’ and the statutory definition of ‘employee’ does not have any carveout or exclusion of HR managers that would remove them from the protection” of Title VII’s anti-retaliation provision. Thus, the Eleventh Circuit concluded, Title VII’s anti-retaliation provision “applies to HR managers just as it does to other employees.”

Binding Precedent

Patterson is a published decision. As a published decision, Patterson is binding precedent. This means that  Patterson must be followed in subsequent Eleventh Circuit decisions and applied by federal district courts in the Eleventh Circuit. Because Patterson is binding precedent, the Eleventh Circuit’s decision in Brush (although never binding authority) has been effectively overruled and is no longer good law in the Eleventh Circuit. This means that any federal district court decision in the Eleventh Circuit applying the “manager rule” based on the opinion in Brush is subject to reversal by the Eleventh Circuit.

Citrus County Retaliation Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our retaliation attorneys in Citrus County, Florida have dedicated their practice to fighting for the rights of employees. If you have been wrongfully fired for complaining about workplace discrimination or have questions about your protection from retaliation under federal employment discrimination law, please contact our office for a free consultation with our retaliation lawyers in Citrus County, Florida. Our employee rights law firm takes workplace retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.