In a recent decision, the Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, ruled that an employee who was terminated after complaining about the way her employer conducted a sexual harassment investigation did not have a claim for retaliation under Title VII.  Brush v. Sears Holdings Corp. is interesting because the plaintiff, Brush, was the employee who conducted the sexual harassment investigation!

Brush worked in loss prevention for Sears and was tasked, with a co-worker, to investigate the claims by an assistant manager, “Jane Doe,” that she was being harassed by her store manager.  Brush and her colleague interviewed Doe and felt that she was holding back information.  Against Sears policy, Brush decided to interview Doe alone to see if she would be more forthcoming.  During the follow-up interview, Doe reported that the store manager had raped her several times.  Doe asked Brush that she not say anything to Doe’s family or report the alleged rape to the police.  Brush told her superiors and Sears terminated the store manager, who had already been suspended.  Brush wanted Sears to report the alleged rape to the police.  Sears declined to do so, citing the incomplete nature of the investigation and Doe’s own desire not to involve the police.  Brush continued to push Sears to notify the police.

Sears ultimately terminated Brush’s employment for violating company policy while conducting the investigation for: (1) meeting with Doe alone during the investigation; (2) suggesting to Doe that she had been raped without asking an open-ended question to elicit Doe’s story; and (3) failing to investigate properly by obtaining video evidence.  Brush sued Sears for retaliation under Title VII, claiming that she was terminated for her opposition to an allegedly unlawful employment practice by Sears.

The court rejected Brush’s retaliation argument.  The court said that Brush’s disagreement with the way in which Sears conducted its internal investigation did not constitute protected activity.  To qualify as protected activity, a plaintiff’s opposition must be to a practice made unlawful by Title VII.  The court found that disagreement with internal procedures did not equate with protected activity opposing discriminatory practices.  Brush’s opposition was to Sears’ failure to involve the police, i.e., the adequacy of the investigation, and not to an employment practice that Title VII declares to be unlawful.  Brush did not engage in statutorily protected activity and had no claim for retaliation under Title VII.

The decision in Brush is fact specific.  The victim specifically requested that Sears not involve the police.  Sears disciplined the harasser.  Had either of these facts been different, the court may well have recognized that Brush’s opposition to the way Sears handled the investigation was protected activity under Title VII.