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Retaliation case of counselor fired for helping worker reinstated


A U.S. appeals court has reinstated a retaliation lawsuit filed by a former employee assistance program consultant who was terminated for advocating on behalf of a sexual harassment victim.

J. Neil DeMasters, an EAP consultant for Roanoke, Virginia-based Carilion Clinic, was consulted by a Carilion employee who had been referred to the EAP for help because he was being sexual harassed by his manager, according to Monday’s ruling by the 4th U.S. Circuit Court of appeals in Richmond, Virginia in J. Neil DeMasters v. Carilion Clinic et al.

After the harassment was reported, the manager was terminated, but the complaining employee reported he was facing increasing hostility from his coworkers.

Mr. DeMasters’ efforts on the employee’s behalf included communicating the employee’s complaints and offering his opinion that the complaints were not being properly handled, and offering to share ideas about how the situation could be better handled.

In 2010, the harassed employee filed litigation against Carilion. Mr. DeMasters was terminated a few weeks after the lawsuit was settled for an undisclosed amount in 2011. He was told it was because he had not taken “the pro-employer side.”

Mr. DeMasters’ EAP direct supervisor told him Carilion was angry about having to settle the discrimination lawsuit and was looking to “throw somebody under the bus,” according to the ruling.

Mr. DeMasters filed suit against Carillon charging his termination violated Title VII’s anti-retaliation provision. The U.S. District Court in Roanoke dismissed the case on the basis that Mr. DeMasters had not engaged in any individual activity that by itself constituted “protected oppositional conduct,” and that the “manager rule” prevented an employee whose job responsibilities included reporting discrimination claims from seeking protection under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.

A three-judge panel unanimously reinstated Mr. DeMasters’ case. “Although individual acts may be scrutinized to ascertain their nature, purpose, and nexus to the alleged objective, the touchstone is whether the plaintiff’s course of conduct as a whole” communicates a belief the employer has engaged in discrimination, said the ruling, which concludes, “We are satisfied that DeMasters has alleged that he engaged in protected oppositional activity.” .

Furthermore the “managers rule” does not apply to Title VII, said the ruling. “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 category of works from its anti-relation protections,” said the ruling, in remanding the case for further proceedings.

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