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On June 28, 2022, the United States Court of Appeals for the Eleventh Circuit (Florida is in the Eleventh Circuit) announced its opinion in Patterson v. Georgia Pacific, LLC, No. 20-12733 (11th Cir. July 5, 2022). The court issued a published opinion that will serve as precedent (i.e., the opinion will serve as authority for deciding similar cases) to the courts in the Circuit. In Patterson, the court held that the so-called manager exception (or rule, as it is more commonly known) does not apply to retaliation claims under Title VII. The manager rule is a concept that when a management employee, acting within the course of her ordinary duties, disagrees with or opposes the actions of an employer, she is not engaging in protected activity. Patterson, at *11. Furthermore, the Eleventh Circuit rejected the argument that an individual cannot have a claim for retaliation against a current employer for engaging in protected activity related to a former employer.

For purposes of this post, a brief summary of the relevant facts is helpful.1 Patterson was working as a human resources manager for Georgia Pacific when she provided deposition testimony in a pregnancy discrimination suit against her former employer (she was a human resources manager at her prior employer as well). Id., at *1, 4. In the deposition, Patterson testified that she had participated in several meetings regarding the terminations of the plaintiffs. Id., at *5-6. Patterson further testified that she advised her supervisors not to take any action against the plaintiffs until she could consult with another Human Resources advisor because she was concerned firing the pregnant employees could expose the employer to legal action. Id., at *6. Within a few weeks after testifying, Patterson was confronted by Jeffrey Hawkins, Georgia Pacific’s Human Resources director. Id., at *4, 8. Patterson explained the facts to Hawkins regarding the case for which she provided testimony, and he asked her, “Did you support or go against the employer?” Id., at *8. As the Eleventh Circuit stated, “When Patterson told him she’d testified ‘on behalf of the ladies,’ as she put it, Hawkins told Patterson that meant she ‘went against’ her previous employer and that having her done so ‘made things clear’ to him.” Id. Within approximately one week, Georgia Pacific terminated Patterson. Id., at *9. Patterson was not provided a reason for her termination, either verbally or in a termination letter provided to her. Id. Georgia Pacific offered Patterson a “‘special lump sum’” payment of $50,000 if she, among other things, agreed not to bring a suit against the company. Id.

1 The Eleventh Circuit provided a detailed discussion of the events leading up to Patterson’s termination.

Patterson ultimately filed a pro se (i.e., she was not represented) complaint against Georgia Pacific alleging unlawful retaliation under Title VII. Id., at *10. Patterson alleged Georgia Pacific terminated her in retaliation for providing the deposition testimony where she opposed pregnancy discrimination. Id. The district court granted summary judgment in favor of Georgia Pacific on two grounds. Id., at *10-11. First, the district court concluded that Patterson had not engaged in protected activity because she was a human resources manager and raised her concerns within or directly related to her normal duties. Id., at *11. The district court relied on an unpublished opinion from the Eleventh Circuit, despite the fact that unpublished opinions are not precedential (and therefore do not bind the courts in the Eleventh Circuit). Id., at *16. Alternatively, the district court held that Patterson did not engage in protected activity because she did not oppose an allegedly unlawful practice by Georgia Pacific related to the deposition. Id., at *11. According to the district court, “a plaintiff’s opposition had to be to the discriminatory actions or practices of the employer that did the retaliating, not to those of a former employer.” Id. The Eleventh Circuit deemed this “‘the current employer exception.’” Id., at *12.

As noted above, the Eleventh Circuit disagreed with the district court. Regarding the manager rule, the court held that the “rule has no basis in the text of Title VII’s opposition clause and actually contradicts the text of it.” Id., at *15. The clause in question provides that it is “an unlawful employment practice for an employer to discriminate against any of [its] employees…because he has opposed any practice made an unlawful employment practice by this subchapter….” Id., at *12. The court noted that the manager rule did not originate in the context of Title VII, but instead arose out of Fair Labor Standard Act case law; the texts of the two statutes are very different. Id., at *16. The court examined the text of Title VII and found that Congress stated that the statute’s protection extends to “any” employee, meaning “all” since Congress did not qualify the word. Id., at *17. The court further held that “[t]he word ‘opposed’ does not somehow sneak the manager exception into the statute.” Id., at *18. The court concluded its analysis by stating, “What matters is whether the broad manager exception Georgia Pacific proposes is consistent with the statutory text that Congress enacted. It is not.” Id., at *21.

Turning to the “current employer” requirement, the Eleventh Circuit again rejected the district court’s rationale. Id. Turning to the text of Title VII, the court held that “[t]here is nothing in the anti-retaliation provision’s opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer.” Id., at *21. As the court succinctly stated, “Opposition is opposition, and any unlawful employment practice

is any unlawful employment practice.” Id., at *22. Thus, the Eleventh Circuit rejected the “current employer” requirement. Id. Examining the facts before it, the court reversed the district court’s granting of summary judgment in favor of Georgia Pacific and remanded for further proceedings. Id., at *36.

The Eleventh Circuit’s “firing” of the manager rule will have an important impact in both Title VII claims and in cases where the statutory language is similar, such as matters arising under the Florida Civil Rights Act (“FCRA”) and the Age Discrimination in Employment Act (“ADEA”). It will also undoubtedly be raised in cases arising under Florida’s public and private sector whistleblower acts. See Barone v. Palm Beach Hotel Condo. Ass’n, 262 So. 3d 767, 768 n.1 (noting that “Florida courts apply Title VII analysis to retaliatory discharge claims under this state’s whistleblower statutes.” (citation omitted)). We will continue to monitor the opinions of the courts and provide updates as they become available.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

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