Court ok’s firing EAP employee upset with company’s workplace investigation

J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker’s complaint to HR. Then he was fired.

Does Mr. DeMasters have a possible retaliation claim? Nope.

DeMasters’ statements to Carilion’s human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe’s sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe’s complaint to Carilion’s human relations department. Merely ferrying Doe’s allegations to Carilion’s human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing…. DeMasters intended only to relay Doe’s complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.

Even the subsequent criticism Mr. DeMasters voiced concerning the company’s handling of the subsequent investigation was not enough to create a viable claim.

DeMasters’ statements to Carilion that Carilion was mishandling Doe’s complaints are not protected oppositional conduct. DeMasters’ complaints about the manner in which Carilion handled Doe’s investigation do not concern a practice made unlawful under Title VII. Because DeMasters’ criticism was directed to Carilion’s processing of Doe’s complaints, rather than the substance of those complaints, it is not actionable oppositional conduct.

Thinking about firing the employee who is critical of the way you investigate employee complaints of harassment? Do so at your own risk. Instead, for more egregious workplace harassment complaints, consider using a trained outside investigator to look into them. It’s generally money well spent. 

The case is DeMasters v. Carilion Clinic.