Sears Wrongful Termination Suit Not Covered by Title VII, 11th Circuit Decides

On March 26, the Eleventh Circuit Court of Appeals upheld a district court’s decision to dismiss a wrongful termination suit brought by former Sears employee Janet Brush, who alleged that her termination was retaliation for activity protected under Title VII of the Civil Rights Act. In Brush v. Sears Holding Corp., the Circuit Court held that participation in or criticism of an internal sexual harassment investigation is not afforded Title VII protection. Because this holding is narrowly tailored to the circumstances of the case, it is worthwhile to understand the facts involved here.

In 2007, Ms. Brush, then serving as a loss prevention specialist for over twenty Sears stores, was asked to investigate a possible sexual harassment claim at one of the stores under her purview. After she and a fellow employee interviewed the complainant with little success, Ms. Brush chose to interview the employee again, this time alone, in violation of company policy. As a result of this interview, additional information came to light, and the alleged harasser was reprimanded. Soon thereafter, Ms. Brush publically expressed her criticism for the manner in which the internal investigation was conducted, and as a result Sears terminated her, citing her direct violation of company policy as grounds for cause. Ms. Brush brought suit, alleging that her termination was retaliation for her participation, and later criticism of the internal investigation of the sexual harassment claim, conduct which she contends is protected under Title VII of the Civil Rights Act. The 11th Circuit ultimately dismissed Ms. Brush’s claim.

While many may be predisposed to supporting labor interests, ultimately the 11th Circuit got it right here. Ms. Brush’s claim fails for two distinct reasons: First, she knowingly violated Sears’ company policy when she chose to interview the employee alone. In light of this fact alone, the court could reasonably conclude that Ms. Brush was rightfully terminated for cause. Second, even if the Court found that Sears’ stated grounds for termination was merely a pretext for firing Ms. Brush due to her criticism of the internal sexual harassment investigation, participation and/or criticism of an internal investigation, even if that investigation may have Title VII implications, is not afforded Title VII protection.

Title VII of the Civil Rights Act specifically prohibits employers from discriminating based on an employee’s (or an employee’s association with someone based on) race, color, religion, sex or national origin. Even if an internal investigation raises questions implicating Title VII, that does not imply that any and all conduct surrounding such an investigation is automatically cloaked with Title VII protection.

Courts have held that federal protections for employees in light of public policy concerns, such as the Whistleblower Protection Act or Title VII protected activity, do not extend to the circumstances surrounding internal investigations potentially involving such federal protections; In order to be afforded such protections, the claimant must demonstrate that the employer’s retaliation was related to the employee’s opposition to a practice made unlawful by the statute itself, not the means of its investigation.

Here, Ms. Brush’s activity involved her criticism of Sears’ decision not to contact the authorities in light of allegations of sexual harassment – not her criticism of Sears’ practices or policies contrary to statutory protections. Further, courts have unanimously held that employers have a right to expect a degree of loyalty from their employees as an element of an implied contract between employer and employee. Ultimately Ms. Brush’s conduct, while perhaps well intended, should not be shielded by Title VII of the Civil Rights Act, and Sears’ decision to dismiss Ms. Brush from her position should not be disturbed.

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