## Facts

- Janet Brush worked for Sears for about 15 years and served as a loss prevention district coach overseeing risk and participating in internal investigations of employee misconduct, including harassment complaints.
- In September 2007, an assistant store coach reported sexual harassment by her store coach; Sears suspended the accused and assigned Brush and another employee to investigate under company policies.
- After an initial joint interview, Brush conducted a second interview alone, during which the complainant alleged she had been forcibly raped multiple times by the store coach.
- Brush reported the rape allegations to Sears and urged the company to contact law enforcement; Sears declined while its investigation continued and stated the reporting decision belonged to the alleged victim.
- Sears later terminated the accused store coach.
- Sears fired Brush in November 2007, asserting she violated investigation policies (including interviewing alone, asking leading questions, and failing to secure requested video evidence).
- Brush claimed she was terminated in retaliation for pressing Sears to report the alleged rapes and objecting to how Sears handled the matter.

## Issues

1. Whether Brush engaged in “protected activity” under Title VII’s opposition clause by challenging Sears’s handling of the complaint and urging Sears to report the alleged rapes to law enforcement.
2. If she engaged in protected activity, whether a genuine dispute existed that Sears’s stated reasons for termination were pretextual.

## Decision

- The Eleventh Circuit affirmed summary judgment for Sears.
- The court held Brush did not engage in protected activity under Title VII’s opposition clause because her conduct opposed Sears’s investigative approach and police-reporting decision, not an employment practice made unlawful by Title VII.
- Because Brush failed to establish the protected-activity element of a prima facie retaliation case, the court did not reach causation or pretext.

## Legal Principles

- Title VII retaliation requires proof that the employee engaged in statutorily protected activity, suffered an adverse action, and showed a causal connection.
- Under the opposition clause, protected activity requires opposing a practice made an unlawful employment practice by Title VII, based on a reasonable belief of illegality.
- Objections to an employer’s internal investigation procedures or decisions about whether to contact law enforcement, without more, do not constitute opposition to an unlawful employment practice under Title VII.
- Conduct undertaken as part of an employee’s assigned internal investigative role, when framed as a dispute about handling the investigation rather than opposition to discriminatory employment practices, may fall outside Title VII’s protected activity.

## Conclusion

The court concluded that Brush’s retaliation claim failed at the threshold because her actions reflected a disagreement with Sears’s investigation strategy and decision not to contact police, not opposition to a Title VII-unlawful employment practice; therefore, summary judgment for Sears was proper on both the Title VII and parallel state-law retaliation claims.


Brush v. Sears Holdings Corp., 466 F. App’x 781 (11th Cir. 2012)