Managers Are People, Too! the Eleventh Circuit's Rejection of the "manager Exception" Allows Human Resource and Managerial Employees to Bring Title Vii Retaliation Claims

• Publication year: 2023

Managers Are People, Too! The Eleventh Circuit's Rejection of the "Manager Exception" Allows Human Resource and Managerial Employees to Bring Title VII Retaliation Claims

Kaitlyn Myles

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Managers Are People, Too! The Eleventh Circuit's Rejection of the "Manager Exception" Allows Human Resource and Managerial Employees to Bring Title VII Retaliation Claims

Kaitlyn Myles^*

I. INTRODUCTION

Human resource (HR) managers undertake important tasks at companies. For example, a company may employ a human resource manager to manage internal issues, such as those affecting lower-level employees. That HR manager may come to the conclusion that a lower-level employee, having faced some discrimination from the company, had their rights violated. In that situation, the HR manager may advocate for the employee against the company. Subsequently, the company terminates the HR manager for siding with the employee over the company. Can the HR manager successfully bring a retaliation suit against the company? It depends. More specifically, the answer depends on whether the court must follow the manager exception when hearing Title VII¹ retaliation claims.

The manager exception, also known as the manager rule, excludes employees who serve in a managerial role, usually in some HR or

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personnel capacity, from the protection of Title VII's anti-retaliation provision.² These managers are excluded when they oppose their employer in the normal course of their job responsibilities.³ To answer the previously posited question, a court applying the manager exception will likely find the HR manager's retaliation claim unsuccessful because the manager's opposition to the company's discrimination against the lower-level employee was related to the normal course of the their job responsibilities. Most managers' daily responsibilities typically include overseeing the activities of other employees and being the conduit between those employees and the upper echelons of the business. When the manager exception is enforced, opposition to employers from managers conducting their natural work obligations could lead to workplace retaliation with no remedy.

The manager rule, originating in claims under the Fair Labor Standards Act (FLSA),⁴ has slowly been adopted by circuit courts since 1998, when it was carried over from FLSA to Title VII retaliation cases.⁵ The adoption of the rule to Title VII cases has since created a circuit split due to some circuits declining to extend the rule to Title VII cases.⁶ In Patterson v. Georgia Pacific,⁷ the United States Court of Appeals for the Eleventh Circuit addressed the following question: does the manager exception have any basis in the text of Tile VII?⁸ Ten years prior, the court adopted the manager exception in an unpublished, non-binding opinion.⁹ In Patterson, however, the court engaged in a lengthy textual analysis of Title VII to determine if there was any language signifying that Congress intended a manager exception in the law.¹⁰ Further, the court examined the validity of carrying the exception from FLSA cases to Title VII cases.¹¹ Ultimately, the court rejected the application of the manager exception to Title VII cases because the exception is not consistent with the broad statutory text that Congress enacted.¹² As a matter of first impression, the court also held that an employee who opposes an unlawful employment practice of a former employer may file

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a Title VII claim against their current employer who retaliates against them due to their opposition against the previous employer.¹³ The court's decision in Patterson clarified that all potential managerial plaintiffs may bring suit under Title VII without fear of their claims being barred by the manager exception.¹⁴

II. FACTUAL BACKGROUND

Marie Patterson worked at Memorial Hermann as a human resource manager—where she served as an advisor on employment law compliance—and during her time at Memorial Hermann, Patterson consulted with company management on the potential termination of three pregnant employees.¹⁵ Patterson later left Memorial Hermann and began working for Georgia Pacific as a HR manager in 2015. At Georgia Pacific, Patterson worked at the company's Alabama River Cellulose mill under the HR director Jeffrey Hawkins. Hawkins was based out of an Atlanta office and occasionally visited the mill. As part of the job, Patterson worked in connection with Timothy McIlwain, the plant manager for the mill.¹⁶

Patterson began to experience discord with McIlwain in June of 2017.¹⁷ Patterson met with McIlwain in order to discuss a possible race discrimination suit at the mill.¹⁸ McIlwain dismissed these concerns by telling Patterson, "[b]ecause of who you are you are not going to tell me how to run this mill!"¹⁹ Soon after, McIlwain told Hawkins that he was having difficulty reaching Patterson and was unable to determine how often Patterson was physically present at the mill.²⁰ During this conversation, McIlwain also informed Hawkins of rumors circulating around the mill that the employees wished to form a union.²¹ Hawkins

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instructed McIlwain to schedule an emergency meeting on June 29 to discuss the potential union.²²

The central conflict in this case began when Hawkins misunderstood Patterson's reasoning for being unable to attend the meeting about the possible union at the mill. Patterson told Hawkins she would be unable to attend the meeting due to a deposition she was required to attend being scheduled for the same day.²³ Although Patterson was referring to a deposition for the Title VII pregnancy discrimination case that she previously worked on while being employed at Memorial Hermann, she did not mention it to Hawkins. Consequently, Hawkins incorrectly assumed Patterson would be attending a deposition on a Georgia Pacific case, and scheduled the meeting a day later so that Patterson could attend.²⁴ Hawkins was then confused when Georgia Pacific's legal department informed him there were no company depositions on June 29 and an administrator informed him that Patterson had an entry in her email calendar for a "deposition," but that there were no additional clarifying details listed as to the nature of the deposition.²⁵

Further problems began to arise when McIlwain claimed that Patterson was underperforming her work duties.²⁶ On June 30, Patterson attended the emergency management meeting and was assigned with helping McIlwain draft a union avoidance plan.²⁷ Patterson then went on a week-long vacation while continuing to work on the plan and communicate with McIlwain about it via email. During the time Patterson was on vacation, McIlwain told Hawkins he had been unable to contact Patterson while she was away and that he completed the union avoidance plan with no assistance from Patterson.²⁸ Hawkins then obtained Patterson's security badge swipe records to the mill's entrance, and, upon reviewing three months of records, concluded that out of the past twenty-five work days, Patterson had taken off work thirteen full days and four half-days.²⁹

Hawkins visited the mill to investigate Patterson's substantial absences from the mill; her lack of assistance to McIlwain in drafting the

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union avoidance plan; and her whereabouts on June 29.³⁰ Hawkins went to Patterson's office and inquired about the details of the June 29 deposition. Patterson informed him that three female employees filed an EEOC case against her previous employer, Memorial Hermann, after being fired while on FMLA leave.³¹ Hawkins then asked Patterson if, in her deposition for the Memorial Hermann case, she had supported or gone against the employer, and Patterson told him she had testified "on behalf of the ladies."³² Hawkins responded, telling Patterson she had "went against" her previous employer and her doing so had "made things clear" to him.³³ One week later, Hawkins and McIlwain fired Patterson without giving a reason. They gave Patterson a termination letter which offered her a lump sum payment of $50,000 if she agreed not to bring any lawsuit, including one under Title VII, against Georgia Pacific. Patterson rejected the offer, filed an EEOC charge, and received a notice of right to sue from the EEOC.³⁴

Patterson brought suit against Georgia Pacific for retaliation under Title VII's anti-retaliation provision in the United States District Court for the Southern District of Alabama.³⁵ The district court granted Georgia Pacific summary judgment on two grounds. First, the district court concluded that Patterson had not engaged in protected activity because she was an HR manager.³⁶ The district court relied on Brush v. Sears Holdings Corp.,³⁷ an unpublished case holding that management employees acting in the "normal course of [their] job performance" are prohibited from recovering under Title VII.³⁸ Second, the district court held that in order for Title VII to cover Patterson's opposition to discrimination — such opposition had to be against the discriminatory actions of Georgia Pacific —the company that retaliated via her

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termination.³⁹ Patterson appealed the district court's grant of summary judgment to the Eleventh Circuit.⁴⁰

III. LEGAL BACKGROUND

A. Title VII Anti-Retaliation Claims Follow a Burden Shifting Framework

To establish a prima facie case for a claim of retaliation under Title VII, a plaintiff must first show (1) that "she engaged in statutorily protected activity," (2) "that she suffered an adverse action," and (3) "that the adverse action was casually related to the protected activity."⁴¹ If the plaintiff establishes such a prima facie case, it creates a presumption that the adverse action from the employer derived from an intent to retaliate.⁴² The burden is shifted to the defendant-employer who must "articulate a legitimate, non-discriminatory reason" for the retaliation.⁴³ If the defendant is able to produce a basis for the retaliation and overcome the presumption, the burden shifts once...