                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-2278


J. NEIL DEMASTERS,

                Plaintiff – Appellant,

           v.

CARILION   CLINIC;   CARILION     MEDICAL      CENTER;     CARILION
BEHAVIORAL HEALTH, INC.,

                Defendants – Appellees.

-------------------------

NATIONAL EMPLOYMENT LAWYERS     ASSOCIATION;    EQUAL    EMPLOYMENT
OPPORTUNITY COMMISSION,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:12-cv-00580-MFU-RSB)


Argued:   January 29, 2015                  Decided:     August 10, 2015


Before Thomas L. AMBRO and Cheryl Ann KRAUSE, Circuit Judges of
the United States Court of Appeals for the Third Circuit,
sitting by designation, and Maryanne Trump BARRY, Senior Circuit
Judge of the United States Court of Appeals for the Third
Circuit, sitting by designation. *

     * As all members of the Court of Appeals for the Fourth
Circuit are recused in this case, a panel from the neighboring
Third Circuit was appointed for this appeal.
Reversed and remanded by published opinion. Judge Krause wrote
the opinion, in which Judge Ambro and Senior Judge Barry joined.


ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., PC, Roanoke,
Virginia, for Appellant.   Frank Kenneth Friedman, WOODS ROGERS
PLC, Roanoke, Virginia, for Appellees. Susan L.P. Starr, U. S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus United States Equal Employment Opportunity Commission.
ON BRIEF: Brittany Michelle Haddox, TERRY N. GRIMES, ESQ., PC,
Roanoke, Virginia, for Appellant.     Agnis Chandra Chakravorty,
Joshua Richard Treece, WOODS ROGERS PLC, Roanoke, Virginia, for
Appellees.   Michael L. Foreman, PENNSYLVANIA STATE UNIVERSITY
DICKINSON SCHOOL OF LAW CIVIL RIGHTS APPELLATE CLINIC, State
College, Pennsylvania; Roberta L. Steele, NATIONAL EMPLOYMENT
LAWYERS ASSOCIATION, San Francisco, California, for Amicus
National Employment Lawyers Association.        P. David Lopez,
General Counsel, Lorraine C. Davis, Acting Associate General
Counsel, Carolyn L. Wheeler, Assistant General Counsel, U. S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus United States Equal Employment Opportunity Commission.




                               2
KRAUSE, Circuit Judge:

       In    2011,    after     five    years     of   employment       as    an   employee

assistance      program       consultant     in    Carilion’s      behavioral        health

unit, Appellant J. Neil DeMasters allegedly was fired for acting

“contrary to his employer’s best interests,” failing to take the

“pro-employer side,” and leaving his employer “in a compromised

position,” as a result of his support of a fellow employee’s

sexual harassment complaint and his criticism of the way the

employer had handled the investigation.                    DeMasters brought suit

against Carilion Clinic, Carilion Medical Center, and Carilion

Behavioral      Health,       Inc.     (collectively,       “Carilion”),           claiming

that    he    was    terminated        for   engaging     in     protected         activity,

including opposing an unlawful employment practice, in violation

of Title VII of the Civil Rights Act of 1964.                                The District

Court dismissed DeMasters’ complaint, primarily on the grounds

that no individual activity in which DeMasters engaged by itself

constituted         protected    oppositional          conduct    and    that       the   so-

called “manager rule,” in any event, prevented an employee whose

job    responsibilities         included      reporting     discrimination           claims

from    seeking       protection       under      Title    VII’s       anti-retaliation

provision.           As we now hold that the proper test for analyzing

oppositional        conduct     requires     consideration        of    the    employee’s

course of conduct as a whole and that the “manager rule” has no



                                             3
place in Title VII jurisprudence, we will reverse and remand for

DeMasters to proceed with his suit.

                                         I.

                                         A.

      DeMasters    began       working     in     July    2006    as    an     employee

assistance     program     (“EAP”)      consultant       for    Carilion,      a    large

healthcare      organization        that        owns     and     operates          several

hospitals. 1     In October 2008, DeMasters was consulted by John

Doe, a Carilion employee who had been referred to the EAP for

help.     At this meeting, Doe revealed that his department manager

had been harassing him for the last several months and described

how   his   manager      had    masturbated       in    front    of    him    twice       on

hospital    grounds,     asked    Doe    for     oral    sex,    and   asked       Doe    to

display his genitals.            Doe also offered that he had physical

evidence of the harassment.

      After    hearing    Doe    out,    DeMasters       opined    that      Doe    was   a

victim of sexual harassment in violation of Carilion’s sexual



      1Because we are reviewing this case on a motion to dismiss,
we adopt the facts as alleged in DeMasters’ first amended
complaint. The complaint here does not provide specific details
concerning the scope of DeMasters’ counseling responsibilities.
As   a   general   matter,   however,  “[e]mployee   [a]ssistance
[p]rograms are worksite-based programs designed to assist
employees in identifying and resolving personal issues, ranging
from health, marital, and financial concerns to substance abuse
and emotional problems.” Oleszko v. State Comp. Ins. Fund, 243
F.3d 1154, 1155 (9th Cir. 2001).



                                           4
harassment policy and formulated a plan with Doe to report the

harassment and facilitate the investigation of Doe’s complaint.

To assist Doe with this reporting and investigation, DeMasters

suggested that Doe sign a release form that authorized DeMasters

to communicate with Carilion’s human resources (“HR”) department

directly on Doe’s behalf.                  That same day, DeMasters put this

plan in motion by contacting the HR department, relaying the

substance       of    Doe’s     complaint,            and     thereby    initiating      the

investigation of Doe’s alleged sexual harassment.                           Once Carilion

began to investigate the matter and took a statement from Doe,

it fired the harasser and told Doe that this individual would

never be allowed back on hospital property.

       A few days later, however, DeMasters received a distressed

call    from    Doe,    who     had      learned      that     the   harasser    had     been

permitted      by    Doe’s    department            director    to   come   back    to   the

hospital to collect his belongings.                          DeMasters then scheduled

another    meeting       with      Doe    for       the     following    day.      At    that

meeting,       Doe    explained       that   he       felt     uncomfortable     with    the

department director and was facing increasing hostility from co-

workers aligned with the harasser.                          To ascertain how best he

could    assist       Doe    with     this      increasingly         hostile    workplace,

DeMasters convened a meeting of his EAP colleagues, who agreed

that DeMasters should contact Carilion’s HR department to offer

suggestions      as    to    how    it    might      better     handle    the   situation,

                                                5
including by intervening to stop the hostile behavior by the

harasser’s friends.            DeMasters followed through on this plan by

calling       and    leaving     a    message      for    an   HR    representative       who

called him back the next day.

        In    that     conversation,          after       confirming        that    the     HR

representative          was    aware     that       Doe    was      being    subjected     to

harassing       behavior      from     his    co-workers,        DeMasters      offered     to

coach Carilion’s HR department about better ways to respond to

Doe’s concerns.             The HR representative declined and stated that

he would speak with the department director.                            However, several

days    later,       Doe    reported     to     DeMasters        that   his     co-workers’

behavior       was     getting       worse,    that       he   was    dissatisfied        with

management’s reaction to his complaint, and that he feared his

harasser would come looking for him with a gun.                               In response,

DeMasters offered his opinion that Carilion’s management and HR

department       had    been     mishandling        Doe’s      complaints.         DeMasters

also reached out to Carilion’s HR manager again to say that he

felt that Carilion was not handling the case properly.

       DeMasters does not allege any subsequent contact with Doe

or activity on Doe’s behalf and apparently was unaware of the

legal remedies pursued by Doe over the next two years.                             In 2010,

however,       one     of     Carilion’s        managers       called       DeMasters     and

informed him that Doe had filed a Title VII complaint with the

Equal        Employment       Opportunity          Commission        (“EEOC”)      and     was

                                               6
pursuing a civil suit for sexual harassment against Carilion.

In   that    conversation,        the     manager     pressed      DeMasters      on   his

involvement         with    Doe’s       harassment      complaint.              DeMasters

acknowledged that Doe had been to the EAP but did not reveal any

details      of     DeMasters’      own    involvement        with    Doe’s      internal

complaints.         The manager told DeMasters that he might expect to

hear more from Carilion on the matter.

      That    he     did.    Within       a   few    weeks    of   Doe    and    Carilion

reaching a settlement, DeMasters was called to a meeting with

several of Carilion’s managers, including the vice president of

HR, the EAP department director, and corporate counsel.                                When

DeMasters asked at the outset if he could have counsel present,

he   was     told    that   if    he      persisted     he    would      be   considered

insubordinate and would be terminated.                       The Carilion managers

then proceeded to ask DeMasters about Doe’s sexual harassment

complaint and specifically whether DeMasters told Doe that what

happened      to     him    was     sexual        harassment.         When      DeMasters

acknowledged sharing his view that Doe was a victim of sexual

harassment, the managers asked DeMasters why he had not taken

“the pro-employer side” and if he understood the magnitude of

the liability the company could face if one of its supervisors

had engaged in harassment.                J.A. 31-32.        The managers also told

DeMasters that he had not protected Carilion’s interests and

that he had left Carilion “in a compromised position.”                          J.A. 32.

                                              7
The   EAP    department       director        likewise          accused     DeMasters   of

“fail[ing]     to    protect        Carilion”       and     “plac[ing]        the   entire

operation at risk.”          Id.

      Two   days     after     this    meeting,       Carilion       fired     DeMasters.

Carilion’s letter to DeMasters, explaining the reasons for his

termination, stated that DeMasters had “fail[ed] to perform or

act in a manner that is consistent with the best interests of

Carilion Clinic.”        Id.       Separately, the EAP department director

sent DeMasters a letter stating that he was being fired because

he: (1) “made statements that could reasonably have led [Doe] to

conclude that he should file suit against Carilion”; (2) “failed

to perform or act in a manner that is consistent with the best

interests    of     Carilion       Clinic”;     (3)   “made       multiple     statements

that were contrary to his employer’s best interests and that

required     disciplinary          action”;     and       (4)     “failed     to    protect

Carilion EAP’s client company, in this case also the employing

organization, Carilion.”              Id.     This letter concluded that “the

EAP contractor was very fortunate to be able to maintain this

company as the entire operation was at risk for the actions of

one consultant.”       Id.     By way of further explanation, DeMasters’

direct supervisor in the EAP told him that Carilion was angry at

having to settle Doe’s discrimination lawsuit and was looking to

“throw somebody under the bus.”               Id.



                                            8
                                                B.

       After filing a charge of discrimination with the EEOC and

receiving a notice of right to sue, DeMasters timely filed a

complaint       in     the    District      Court    for     the    Western       District   of

Virginia.         In that complaint, DeMasters claimed that Carilion

terminated        his    employment        in   violation      of     Title       VII’s   anti-

retaliation provision, under various legal theories, including

that       he   was     fired      in     violation     of     Title       VII’s    so-called

Opposition Clause, which forbids retaliation against an employee

who “oppose[s] any practice made an unlawful employment practice

by this subchapter.”               42 U.S.C. § 2000e-3(a). 2

       The District Court granted Carilion’s motion to dismiss,

concluding that DeMasters failed to raise plausible allegations

that       he   engaged      in    protected        activity       under    the    Opposition

Clause because: (1) the conversations that took place between

DeMasters        and    Doe       about   the   alleged       discrimination         did     not



       2
       In a thorough and thoughtful analysis, the District Court
also rejected DeMasters’ arguments that he was fired in
violation of Title VII’s Participation Clause, which protects
employees who “ma[ke] a charge, testif[y], assist[], or
participate[] in any manner in an investigation, proceeding, or
hearing under this subchapter,” 42 U.S.C. § 2000e-3(a), and that
he was fired as a matter of unlawful third-party retaliation to
punish Doe, see Thompson v. N. Am. Stainless, LP, 562 U.S. 170
(2011).    We have no need to reach DeMasters’ Participation
Clause or third-party retaliation arguments because we hold that
DeMasters stated a claim for retaliation under the Opposition
Clause and will reverse on that basis.



                                                9
constitute     purposive       communications             from    DeMasters       to    Doe’s

employer,    Carilion;     (2)     DeMasters’        communications          to    Carilion

merely    reflected      transmissions          of    Doe’s       complaints      and     not

DeMasters’     own    opposition        to      unlawful          activity;       and     (3)

DeMasters’     criticisms          of   the         way     Carilion        handled       the

investigation did not oppose activity that itself was unlawful

under Title VII.          In addition, the District Court held that,

under the so-called “manager rule,” even if the activity were

otherwise protected, DeMasters could not avail himself of that

protection because he was acting within the scope of his job

duties as an EAP consultant in counseling Doe and communicating

with     Carilion.        The      District          Court        therefore       dismissed

DeMasters’ complaint for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6).                This timely appeal followed.

                                        II.

       The District Court had jurisdiction pursuant to 42 U.S.C. §

2000e-5(f)(3)    and     28    U.S.C.      §    1331,       and    we     have    appellate

jurisdiction under 28 U.S.C. § 1291.                        We review the District

Court’s      dismissal        de    novo,        accepting          all     well-pleaded

allegations of the complaint as true and drawing all reasonable

inferences    therefrom       in   favor       of    the    plaintiff.           Ibarra    v.

United States, 120 F.3d 472, 474 (4th Cir. 1997).                                 Like the

District Court, we consider whether the complaint “contain[s]

sufficient factual matter, accepted as true, to ‘state a claim

                                           10
to relief that is plausible on its face.’”            Ashcroft v. Iqbal,

556   U.S.   662,   678    (2009)   (quoting   Bell   Atlantic   Corp.   v.

Twombly, 550 U.S. 544, 570 (2007)). 3

                                    III.

      Title VII forbids employment discrimination based on “race,

color, religion, sex, or national origin,” 42 U.S.C. § 2000e-

2(a), and its anti-retaliation provision serves to “prevent[] an

employer     from   interfering     (through    retaliation)     with    an

employee’s efforts to secure or advance enforcement of the Act’s

basic guarantees.”        Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 63 (2006); 42 U.S.C. § 2000e-3(a).              In order to

establish a prima facie Title VII retaliation claim, a plaintiff

must demonstrate three elements: “(1) that [he] engaged in a

protected activity, as well as (2) that [his] employer took an

adverse employment action against [him], and (3) that there was

a   causal   link   between   the   two    events.”    Boyer-Liberto     v.




      3The Fourth Circuit has previously held that a court must
be “especially solicitous of the wrongs alleged” in a civil
rights complaint, see, e.g., Slade v. Hampton Rds. Reg’l Jail,
407 F.3d 243, 248 (4th Cir. 2005); Veney v. Wyche, 293 F.3d 726,
730 (4th Cir. 2002), but more recently has called into question
whether this special solicitude survives the heightened pleading
standard articulated by Twombly and Iqbal, see Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).    This issue was
not briefed by the parties, and we need not resolve it here
because we conclude we would reverse and remand even under
Twombly and Iqbal’s higher standard.



                                     11
Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc)

(internal quotation marks omitted).

     While    it     is    undisputed      that            the    second      element     is

satisfied, the District Court in effect held that DeMasters did

not plead either the first or third elements because he did not

engage in protected activity under Title VII’s Opposition Clause

and thus was not terminated on that basis.                        We conclude that the

District     Court        erred,       first,         by      examining         DeMasters’

communications as if they were each discrete incidents rather

than as a continuous course of oppositional conduct and, second,

by   applying      the    “manager      rule”         to     DeMasters’         Title    VII

retaliation claim.        We address these issues in turn.

                                          A.

     The     District          Court     examined            each       of      DeMasters’

communications      in     a   discrete        fashion,          analyzing      separately

DeMasters’ conversations with Doe, DeMasters’ communication of

Doe’s   complaints        to   Carilion,        and        DeMasters’        criticism    to

Carilion of its internal investigation, and concluded that no

act by itself constituted protected activity.                          Neither the text

nor the purpose of Title VII is served by this method of parsing

a continuous course of oppositional conduct into individual acts

and assessing those acts in isolation.

     Title   VII’s       Opposition      Clause,       by        its   terms,    prohibits

retaliation against an employee who has “opposed any practice

                                          12
made an unlawful employment practice” by Title VII.                                    42 U.S.C. §

2000e-3(a).            The   Supreme      Court         has    defined         “oppose”      in    this

context     by    looking         to    its    ordinary            meaning:      “to     resist      or

antagonize . . . ;            to       contend      against;             to   confront;      resist;

withstand, . . . to be hostile or adverse to, as in opinion.”

Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn.,

555 U.S. 271, 276 (2009) (internal citations omitted) (quoting

Webster’s        New    International          Dictionary            1710       (2d    ed.       1958);

Random House Dictionary of the English Language 1359 (2d ed.

1987)).     This broad definition led the Court to conclude that

the threshold for oppositional conduct is not onerous.                                       Instead,

“[w]hen an employee communicates to her employer a belief that

the   employer         has   engaged          in    .    .     .     a    form    of     employment

discrimination, that communication virtually always constitutes

the employee’s opposition to the activity.”                                   Crawford, 555 U.S.

at    276   (internal         quotation            marks       omitted)         (citing      2    EEOC

Compliance Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar. 2003)).

      This Circuit, as well as the other Courts of Appeals, also

has    articulated           an        expansive         view        of       what     constitutes

oppositional conduct, recognizing that it “encompasses utilizing

informal     grievance         procedures           as        well       as    staging       informal

protests and voicing one’s opinions in order to bring attention

to an employer’s discriminatory activities.”                                  Laughlin v. Metro.

Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see

                                                   13
also Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39,

47-48 (1st Cir. 2010) (recognizing that even non-verbal conduct

may constitute protected activity); Barrett v. Whirlpool Corp.,

556 F.3d 502, 516 (6th Cir. 2009) (protected activity includes

“complain[ing] about unlawful practices to a manager, the union,

or other employees”); Moore v. City of Philadelphia, 461 F.3d

331, 343 (3d Cir. 2006) (quoting Curay-Cramer v. Ursuline Acad.

of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006))

(protected activity covers “informal protests of discriminatory

employment           practices[,]        including              making        complaints          to

management”); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.

1996)    (protected        activity      includes          endeavoring            to    obtain    an

employer’s compliance with Title VII).

      And while the oppositional activity must be directed to “an

unlawful       employment        practice”      under          Title       VII,    42    U.S.C.   §

2000e-3(a),         this   Circuit’s      recent          en    banc       opinion      in   Boyer-

Liberto       made    clear      that   we     should          also    interpret        “unlawful

employment      practice”        broadly.           786    F.3d       at    282.        Thus,    “an

employee       is     protected         when    she        opposes           ‘not       only . . .

employment actions actually unlawful under Title VII but also

employment actions [she] reasonably believes to be unlawful,’”

and     the     Title      VII     violation         to        which        the     oppositional

communication is directed “may be complete, or it may be in



                                               14
progress.”         Id. (alterations in original) (quoting EEOC v. Navy

Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005)).

       In sum, nothing in the language of the Opposition Clause

nor    in    its    interpretation         by    the       courts    supports        a   myopic

analysis under which an employee’s opposition must be evaluated

as a series of discrete acts.                   42 U.S.C. § 2000e-3(a).                  On the

contrary,      as    the     Third      Circuit       has    observed      in    a       similar

context, “[t]hese determinations depend on the totality of the

circumstances, as [a] play cannot be understood on the basis of

some    of   its     scenes     but     only    on    its    entire      performance,          and

similarly,      a    discrimination        analysis         must    concentrate          not    on

individual incidents, but on the overall scenario.”                              Moore, 461

F.3d    at    346    (second      alteration         in     original)     (citations           and

internal quotation marks omitted).                        Likewise, in Collazo, where

the plaintiff had arranged meetings with the HR department for a

co-worker      and    then      complained      to    HR    about     problems       with      his

company’s      ongoing       internal      investigation            of   the    co-worker’s

complaint, the First Circuit, reviewing the full range of the

plaintiff’s conduct, held that his “persistent efforts to help

[the victim] initiate her sexual harassment complaint and urge

Human       Resources      to     act     upon       that     complaint”        constituted

protected opposition activity.                  Id. at 43-44, 47.

       This holistic approach is also consistent with the broad

remedial      purpose      of    Title    VII:       to   root     out   the    “cancer        [of

                                               15
discrimination] in [the] workplace.”           Boyer-Liberto, 786 F.3d at

284 (quoting Jordan v. Alt. Res. Corp., 458 F.3d 332, 356 (4th

Cir. 2006) (King, J., dissenting)).            This is particularly so in

the   retaliation   context,    where      Title   VII   “must   be   read   ‘to

provide broader protection for victims of retaliation than for

[even] victims of race-based, ethnic-based, religion-based, or

gender-based   discrimination,’         because    ‘effective     enforcement

could . . . only be expected if employees felt free to approach

officials with their grievances.’”            Id. at 283 (alterations in

original) (quoting Burlington N., 548 U.S. at 66-67); see also

Thompson,   562     U.S.   at   174     (“Title     VII’s    antiretaliation

provision prohibits any employer action that ‘well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.’”) (quoting Burlington N., 548 U.S. at 68).

Acknowledging and protecting activities that, viewed as a whole,

oppose unlawful discrimination will promote the prompt and full

reporting on which Title VII enforcement depends.

      We conclude from this review of the statute and case law

that we must examine the course of a plaintiff’s conduct through

a panoramic lens, viewing the individual scenes in their broader

context and judging the picture as a whole.              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 (1) “communicates to

                                      16
her employer a belief that the employer has engaged in . . . a

form of employment discrimination,” Crawford, 555 U.S. at 276;

and (2) concerns subject matter that is “actually unlawful under

Title   VII”    or    that    the    employee       “reasonably      believes       to   be

unlawful,” Boyer-Liberto, 786 F.3d at 282.

     Applying these criteria to the allegations here, we are

satisfied      that     DeMasters      has        alleged    that    he        engaged   in

protected oppositional activity.                  First, the complaint describes

a course of conduct by DeMasters that clearly and effectively

conveyed to Carilion over several weeks his belief that Carilion

was violating Title VII by subjecting Doe to unlawful conduct.

See Crawford, 555 U.S. at 276.                     As alleged, DeMasters became

Doe’s leading advocate and adviser from the day Doe first told

DeMasters about his manager’s harassing behavior, and DeMasters

persisted      in     his    advocacy        on     Doe’s     behalf       as     Carilion

investigated the complaint.             DeMasters generated a plan with Doe

to report the harassment and to galvanize Carilion’s internal

investigation, arranged for Doe to sign a release so that he

could speak directly with HR on Doe’s behalf, and relayed Doe’s

harassment complaint to HR, leading to the termination of the

harasser.        Upon       learning     that       Doe     was    facing       increasing

hostility   from      co-workers       who    sympathized         with    the    harasser,

DeMasters      consulted      with     his    EAP     colleagues         and    formulated

another plan to try to draw Carilion’s attention to the hostile

                                             17
workplace and to improve the situation.                         He then reached out to

the HR department, ensured that an HR representative aware of

the hostility confronting Doe, and offered EAP’s services to

coach the HR department on how to respond more effectively.                             And

when       Doe    reported     that     the    hostile           environment    was     only

intensifying,        DeMasters       shared    his       opinion     that   Carilion     was

mishandling         the     matter    not     only       with     Doe    but    also    with

Carilion’s HR manager.

       The       District    Court    concluded          these    allegations     did    not

reflect          protected     activity        because           DeMasters,      by     “not

complain[ing]         himself    of     workplace          discrimination        or    other

unlawful         employment    practices”          and    “[m]erely      ferrying      Doe’s

allegations to Carilion’s human relations department,”                            did not

engage in “purposive conduct.”                 J.A. 93, 96.             In imposing this

requirement,         the     District       Court        relied    on    this    Circuit’s

unpublished opinion in Pitrolo, where the panel held, consistent

with Justice Alito’s concurrence in Crawford, that “opposition”

should be limited to “purposive conduct.” 4                         Pitrolo v. Cty. of


       4
       This Circuit “ordinarily do[es] not accord precedential
value to [its] unpublished decisions,” although those decisions
are entitled “to the weight they generate by the persuasiveness
of their reasoning.”       Pressley v. Tupperware Long Term
Disability Plan, 553 F.3d 334, 339 (4th Cir. 2009) (quoting
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.
2006)); see also 4th Cir. Loc. R. 32.1.      At least one other
district court within this Circuit has also relied on Pitrolo to
hold that opposition must be purposive.      See, e.g., Harris-
(Continued)
                                              18
Buncombe, N.C., No. 07-2145, 2009 WL 1010634, at *3 n.6 (4th

Cir. Mar. 11, 2009) (unpublished) (quoting Crawford, 555 U.S. at

281-82 (Alito, J., concurring)).                 While the Crawford majority

defined “oppose” to include “to be hostile or adverse to, as in

opinion,” Crawford, 555 U.S. at 276, Justice Alito described

this part of the definition as dictum, observed that the term’s

other       meanings    reflected    “purposive       conduct,”      and       expressed

concern      that     extending   the    definition      to   “silent      opposition”

(for       example,    “by   employees    who    never    expressed        a    word   of

opposition       to     their     employers”)     would       be    excessive          and

impractical, id. at 282 (Alito, J., concurring).

       We     need     not    decide     today    on      the      vitality       of    a

“purposive[ness]” requirement, 5 however, because, with the term




Rogers v. Ferguson Enters., No. 09-78, 2011 WL 4460574, at *7
(E.D.N.C. Sept. 26, 2011).
       5We note the Crawford majority did not adopt such a
requirement and was explicit that “‘[o]ppose’ goes beyond
‘active, consistent’ behavior in ordinary discourse, where we
would naturally use the word to speak of someone who has taken
no action at all to advance a position beyond disclosing it. . .
.  [W]e would call it ‘opposition’ if an employee took a stand
against   an   employer’s   discriminatory  practices   not   by
‘instigating’ action, but by standing pat, say, by refusing to
follow a supervisor’s order to fire a junior worker for
discriminatory reasons.” 555 U.S. at 277. And while the Sixth
Circuit endorsed the “purposive conduct” test in Thompson v.
North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009) (en
banc), the Supreme Court, in overruling on other grounds,
emphasized the importance of using an objective standard in the
Title VII anti-retaliation context “so as to ‘avoi[d] the
(Continued)
                                          19
“purposive” properly construed, DeMasters’ conduct would easily

qualify in any event.           The District Court took “purposive” to

mean that the protections of the Opposition Clause are limited

to “an employee who directly communicate[s] to her employer her

[own] experiences with [discrimination] in the workplace,” and

that the complaining employee must not only “intend[]…to relay

[a    co-worker’s]    complaints”      to    his   employer,     but   also   must

“voice his own opposition to any unlawful employment practice.”

J.A. 94, 96.    It was mistaken.            Although Justice Alito sought to

distinguish “silent opposition” and to limit the protection of

the    Opposition     Clause     to    conduct      that   was     “active     and

purposive,”    he    was   in   full   agreement    with   the    majority    that

oppositional conduct need not be “instigated or initiated by the

employee,” and that an employee’s communication to his employer

about a belief that the employer has engaged in discrimination




uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff’s unusual subjective
feelings.’” Thompson, 562 U.S. at 175 (alteration in original)
(quoting Burlington, 548 U.S. at 68-69)).     No other Court of
Appeals has adopted Justice Alito’s “purposiveness” requirement
in a precedential opinion, cf. Thompson v. Somervell Cty., Tex.,
431 F. App’x 338, 341 (5th Cir. 2011) (unpublished); Demers v.
Adams Homes of Nw. Fla., Inc., 321 F. App’x 847, 852 (11th Cir.
2009) (unpublished), although in Collazo, the First Circuit
noted that the existence of this requirement was an open
question and concluded that the plaintiff’s conduct in that case
“effectively and purposefully communicated his opposition,” 617
F.3d at 47-48.



                                        20
“virtually always constitutes the employee’s opposition to the

activity.”      Crawford, 555 U.S. at 281-82 (Alito, J., concurring)

(internal quotation marks omitted).

       Here, no one could mistake DeMasters’ alleged activities

for “silent opposition.”          On the contrary, he asserts that he

actively and deliberately communicated to Carilion both Doe’s

complaints and DeMasters’ own opinion that these complaints were

not    properly   handled,     offered     to   share    ideas   about   how     they

could be better handled, and, like the plaintiff in Collazo,

made       “persistent      efforts   to        help    [Doe]    initiate        [his

discrimination] complaint and urge Human Resources to act upon

that complaint.” 6       Collazo, 617 F.3d at 47.            Thus, even assuming

a   threshold     requirement     that     conduct      be   “purposive”    to    be

protected     under   the    Opposition       Clause,   DeMasters’   allegations

easily clear that hurdle.




       6
       Carilion attempts to distinguish Collazo by asserting that
the plaintiff in that case expressed actual oppositional views
by describing his co-worker’s complaint as “a serious case,” id.
at 44, whereas DeMasters never expressed oppositional views for
the purpose of addressing discrimination.           But Carilion
mischaracterizes DeMasters’ actions:   By helping to initiate an
internal complaint, describing the underlying harassment that
Doe faced by relaying that complaint, urging HR to take action,
and then criticizing Carilion’s handling of the investigation
for the hostility it generated among co-workers, DeMasters
opposed Doe’s harassment at least as effectively as if he had
described it as “a serious case.” Id.



                                         21
       Having concluded that DeMasters’ alleged course of conduct,

viewed as a whole, “communicate[d] to [his] employer a belief

that the employer has engaged in . . . a form of employment

discrimination,” Crawford, 555 U.S. at 276, we now address the

second part of our test—the subject matter to which this conduct

was     directed.              Here,    too,    the    complaint         is        sufficient.

DeMasters plausibly alleged that he directed his communications

to    practices         that    were    “actually      unlawful”         or    that,      at   a

minimum,      he       “reasonably      believe[d]       to    be    unlawful,”           Boyer-

Liberto, 786 F.3d at 282 (quoting Navy Fed., 424 F.3d at 406),

i.e.,       the    sexual       harassment      to    which        Doe   originally         was

subjected, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

64-65       (1986),       and     the    emerging      retaliatory            hostile      work

environment to which Doe was later subjected as a result of

Carilion’s alleged mishandling of the matter, see Boyer-Liberto,

786    F.3d       at    282     (protected     conduct       includes     “oppos[ing]          a

hostile work environment that, although not fully formed, is in

progress”); Noviello v. City of Boston, 398 F.3d 76, 90 (1st

Cir.    2005)      (“‘[D]iscriminate’           in    the     anti-retaliation            clause

includes subjecting a person to a hostile work environment.”).

       To    the       extent    the    District     Court     focused        on    DeMasters’

criticism         of    Carilion’s       investigation        or    handling         of   Doe’s

complaints, as opposed to the hostile environment resulting from

those activities, it again framed the issue too narrowly.                                   The

                                               22
District Court relied heavily on Brush v. Sears Holdings Corp.,

466    F.    App’x     781    (11th       Cir.    2012),      which     stated        that      the

plaintiff’s “disagreement with the way in which [her employer]

conducted       its     internal         investigation”         into       a    third-party’s

allegations of sexual harassment and rape “does not constitute

protected activity.”                Id. at 786.         We do not find Brush to be

persuasive.           Whatever       weight      it   may    carry    as       an   unpublished

opinion from another Circuit, there was no allegation in that

case, as there is here, that the plaintiff reasonably believed

the    way    the      employer       was     handling        the    matter         was    itself

responsible for an unlawful employment practice, in this case, a

retaliatory       hostile         work    environment.          At     the      time       of   its

decision, the District Court also did not have the benefit of

this Circuit’s decision in Boyer-Liberto, which made clear that

“an    employee       is    protected       from      retaliation       for         opposing    an

isolated     incident        of     harassment        when    she    reasonably           believes

that    a    hostile        work     environment        is     in    progress,         with     no

requirement for additional evidence that a plan is in motion to

create such an environment or that such an environment is likely

to    occur.”         786    F.3d    at   284.        We     conclude      that      DeMasters’

actions as a whole constitute protected activity and that he

thus has pleaded the first element of a prima facie case for a

Title VII retaliation claim.



                                                 23
      We    also        have    no     difficulty           concluding       that       DeMasters

sufficiently       pleaded           the    third     and    only     remaining         contested

element—a causal connection between that protected activity and

the   termination         of    DeMasters’          employment.            Two    days       before

firing      him,        Carilion’s         management          objected      to        DeMasters’

conduct, confronting him at a meeting about why he had not taken

the “pro-employer side,” asking if he understood the liability

the   company       could       face       if    its     supervisor        had       engaged     in

harassment, and asserting that he had not protected Carilion’s

interests and had left it “in a compromised position.”                                  J.A. 31-

32.        In    the     very        letter      that    purported         to     justify       his

termination,        Carilion          reiterated         that       DeMasters        had      acted

contrary to his employer’s best interests, had “made statements

that could reasonably have led John [Doe] to conclude that he

should file suit against Carilion,” and had “failed to protect

Carilion        EAP’s    client        company.”            J.A.     32.        Even    at     oral

argument,       Carilion        seemed      to    acknowledge         that      it     retaliated

against     DeMasters          for    his     opposition        activity,        with      counsel

conceding that DeMasters was fired because he “rocked the boat.”

Transcript of Oral Argument at 40-41 (argued Jan. 29, 2015).

      Thus, accepting DeMasters’ factual allegations as true and

drawing all reasonable inferences in his favor, as we must on a

motion     to    dismiss,       Ibarra,         120     F.3d    at    474,      DeMasters       has

pleaded both protected activity and a causal connection between

                                                 24
that activity and the termination of his employment.                                DeMasters’

complaint       thus        states    a       claim       for    retaliation        under     the

Opposition          Clause    unless,         as    the    District       Court     held,    the

“manager rule” strips DeMasters of that protection.                                   To that

subject, we now turn.

                                                   B.

       The “manager rule” has been applied in some Circuits in the

context of retaliation claims under the Fair Labor Standards Act

(“FLSA”) to require that an employee “step outside his or her

role     of    representing          the      company”          in    order    to   engage    in

protected activity.             McKenzie v. Renberg’s Inc., 94 F.3d 1478,

1486 (10th Cir. 1996); see also Hagan v. Echostar Satellite,

L.L.C.,       529    F.3d    617,    628      (5th      Cir.     2008);      Claudio-Gotay    v.

Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004).

It     purports      to     address       a    concern         that,    if    counseling      and

communicating complaints are part of a manager’s regular duties,

then “nearly every activity in the normal course of a manager’s

job     would       potentially       be       protected             activity,”     and     “[a]n

otherwise typical at-will employment relationship could quickly

degrade into a litigation minefield.”                       Hagan, 529 F.3d at 628.

       A number of district courts, including the District Court

here, have imported this categorical exception into the context

of Title VII’s anti-retaliation provision.                              See J.A. 93-94; see

also Rice v. Spinx Co., No. 10-1622, 2012 WL 684019, at *5

                                                   25
(D.S.C. Mar. 2, 2012); Hill v. Belk Stores Servs. Inc., No. 06-

398, 2007 WL 2997556, at *1 (W.D.N.C. Oct. 12, 2007).        Thus, by

the reasoning of the District Court, even if DeMasters otherwise

had engaged in oppositional conduct, he could not qualify for

protection under Title VII because, as an EAP consultant, he had

a duty to counsel Doe and to relay his complaints to Carilion’s

HR department.

       DeMasters and the EEOC 7 argue that, whatever place it may

have in FLSA jurisprudence, the “manager rule” does not apply to

Title VII.        We agree.    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 workers

from       its   anti-retaliation   protections.   While   the   anti-

retaliation provisions of Title VII and the FLSA both generally

“secure their substantive protections by preventing an employer



       7
       The EEOC, appearing as amicus curiae in this case, opposed
the application of the “manager rule” in the Title VII context
in its brief and at oral argument. Because the EEOC offers this
view in an amicus brief, which does not have the "force of law,"
its interpretation here is not entitled to Chevron deference,
United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), but it
still “is ‘entitled to respect’ ... to the extent it has the
‘power to persuade,’” Gonzales v. Oregon, 546 U.S. 243, 256
(2006) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).   We conclude the EEOC's position accords with the
language and purpose of the statute and relevant case law, and
we find its briefing and argument to be persuasive.



                                     26
from    interfering      (through     retaliation)       with     an       employee’s

efforts    to   secure   or    advance   enforcement     of     the    Act’s   basic

guarantees,” Darveau v. Detecon, Inc., 515 F.3d 334, 342 (4th

Cir. 2008) (quoting Burlington N., 548 U.S. at 63) (internal

quotation marks omitted), we also “must take care to respect any

differences in language and purpose between Title VII and the

FLSA” before adopting a rule from one to the other, Darveau, 515

F.3d at 342.

       Here,    those    differences     counsel      against     importing      the

“manager    rule”    into     Title   VII.      The   FLSA’s    anti-retaliation

provision prohibits discrimination against an employee “because

such employee has filed any complaint or instituted or caused to

be instituted any proceeding under or related to this chapter,

or has testified or is about to testify in any such proceeding,

or has served or is about to serve on an industry committee.”

29 U.S.C. § 215(a)(3).          In contrast, Title VII makes it unlawful

for an employer to discriminate against an employee “because he

has opposed any practice made an unlawful employment practice by

this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding,     or   hearing    under    this   subchapter.”          42    U.S.C.   §

2000e-3(a).      Thus, the conduct protected by the FLSA is far more

constricted than the broad range of conduct protected by Title

VII’s anti-retaliation provision.

                                         27
       Supreme Court precedent also militates against restricting

the scope of Title VII’s anti-retaliation provision, which has

been    held    to    “provide       broad          protection     from   retaliation,”

Burlington N., 548 U.S. at 67, and to cover a wide range of

conduct through which an employee communicates to an employer

the employee’s “belief that the employer has engaged in . . . a

form of employment discrimination,” Crawford, 555 U.S. at 276;

see also id. (observing that an employee’s communication to her

employer of a belief the employer has discriminated “virtually

always constitutes the employee’s opposition to the activity”)

(internal quotation marks omitted).                        While the Court indicated

in   Crawford    that     there      may   be       “eccentric”    exceptions      to    the

sweeping     protections        of   the       Opposition       Clause,    such    as    “an

employee’s      description          of    a        supervisor’s       racist     joke    as

hilarious,” neither in Crawford nor in subsequent cases has the

Court endorsed a categorical exception based on an employee’s

workplace duties.         Id.

       The     “manager    rule”      is   also        problematic      when    viewed    in

conjunction with two other doctrines that restrict an employer’s

Title VII liability.            First, under the balancing test adopted by

this Circuit in Armstrong v. Index Journal Co., 647 F.2d 441

(4th Cir. 1981), an employer may not be liable under Title VII

if an employee’s conduct at work is sufficiently “insubordinate,

disruptive,      or   nonproductive.”                Id.   at   448.      Applying       this

                                               28
doctrine in tandem with the “manager rule” thus would create a

dilemma for employees who would have to step outside the scope

of employment for their activity to be protected under Title

VII’s   anti-retaliation            provision,      but     would    risk    losing   that

protection      if    the     deviation     from     their     job    responsibilities

could be deemed sufficiently insubordinate or disruptive.                             See

Deborah L. Brake, Retaliation in the EEO Office, 50 Tulsa L.

Rev. 1, 31 (2014).             We see no need to make plaintiffs walk a

judicial tightrope when the statutory scheme created by Congress

offers a clear path to relief.

       Second, the Supreme Court has provided employers with an

affirmative defense under certain circumstances when an employee

fails to report and to take advantage of an employer’s internal

investigation processes.              Faragher v. City of Boca Raton, 524

U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524

U.S.    742,    765     (1998).         The      Faragher/Ellerth           defense   thus

highlights the importance of employers’ internal procedures and

of   their     employees       in    EAP,     HR,    and     legal    departments      who

facilitate the use of these procedures.                       Applying the “manager

rule”   in     the    Title    VII    context       would    discourage       these   very

employees from voicing concerns about workplace discrimination

and put in motion a downward spiral of Title VII enforcement:

If they remain silent, victims of discrimination are less likely

to use their employers’ internal investigation mechanisms in the

                                            29
first     place,     triggering     the        Faragher/Ellerth              defense,       and

allowing discrimination in the workplace to go undeterred and

unremedied.        As the Supreme Court observed in a similar context

in Crawford, “[n]othing in the statute’s text or our precedent

supports    this    catch-22.”         555     U.S.    at       279;   see     also    Boyer-

Liberto¸ 786 F.3d at 283 (recognizing the need to “encourage the

early reporting vital to achieving Title VII’s goal of avoiding

harm”).

       Carilion’s policy arguments do not change our view.                               While

Carilion    harkens     to    Hagan,     529    F.3d       at    628,    to     warn     of   a

“litigation minefield” without the “manager rule,” we find it

much    more   troubling        that,     under       Carilion’s             approach,     the

categories     of    employees    best       able     to    assist       employees         with

discrimination claims—the personnel that make up EAP, HR, and

legal departments—would receive no protection from Title VII if

they oppose discrimination targeted at the employees they are

duty-bound     to    protect.      See       Boyer-Liberto,            786    F.3d    at    283

(observing “effective [Title VII] enforcement could . . . only

be expected if employees felt free to approach officials with

their   grievances”)         (second    alteration          in     original)         (quoting

Burlington N., 548 U.S. at 66-67).

       In rejecting the “manager rule” in the context of Title VII

retaliation claims, we join the only other Court of Appeals that



                                          30
has addressed the issue in a precedential opinion. 8                          In Johnson

v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000),

the Sixth Circuit held that the fact that the plaintiff, who was

an affirmative action official at the University of Cincinnati,

“may have had a contractual duty” to advocate for women and

minorities      did   not    defeat    a    retaliation     claim.        The    Johnson

court relied on the language of the Opposition Clause and the

EEOC Compliance Manual to determine that “the only qualification

that is placed upon an employee’s invocation of protection from

retaliation      under      Title   VII’s    Opposition         Clause   is    that   the

manner of his opposition must be reasonable.”                         Id. at 580.      We

agree    with   the    Johnson      court    that    the   “manager       rule”    would

“run[] counter to the broad approach used when considering a

claim for retaliation under [the opposition] clause, as well the

spirit    and    purpose      behind       Title    VII    as     a   broad     remedial




     8 The Tenth and Eleventh Circuits have adopted the “manager
rule” in the Title VII context in non-precedential unpublished
opinions. See Weeks v. Kansas, 503 F. App’x 640, 642 (10th Cir.
2012); Brush, 466 F. App’x at 787. Carilion also relies on EEOC
v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998), but the Eighth
Circuit merely acknowledged the employer’s argument that the
“manager rule” applied in the Title VII context and noted that
the rule was inapplicable, in any event, to the employee in that
case. None of these cases grapples with the differences between
the text of Title VII and the FLSA or considers the chilling
effects of the “manager rule” on the reporting of workplace
discrimination.  We therefore do not find their analysis to be
persuasive.



                                            31
measure.”    Id.    We therefore hold today that the “manager rule”

has no place in Title VII enforcement.

                                     IV.

     Pursuant to the foregoing, we reverse the judgment of the

District    Court   and   remand   for    further   proceedings   consistent

with this opinion.

                                                     REVERSED AND REMANDED




                                     32
