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No retaliation claim for HR manager who company believed had recruited another employee to file suit

By Kathleen Kapusta, J.D. and Joy P. Waltemath, J.D.

Relying on 40-year-old precedent, the en banc court majority explained that the employee’s actions rendered her entirely ineffective in her highly sensitive and important position and thus her conduct was not protected under Title VII.

An “employee’s oppositional conduct under Title VII is not protected if the means by which the employee has chosen to express her opposition so interferes with the performance of her job that it renders her ineffective in the position for which she is employed,” a divided en banc Eleventh Circuit ruled, finding that a Kia Team Relations Department Manager, by allegedly recruiting another employee to sue the company, “acted in a way that conflicted with the core objectives of her sensitive and highly important position.” Affirming the lower court’s grant of summary judgment against the employee’s Title VII retaliation claim, Judge Branch, writing for the majority, found that because her actions rendered her entirely ineffective in her job, “the manner of her oppositional conduct with respect to [the subordinate] was necessarily unreasonable” and not protected under Title VII (Gogel v. Kia Motors Manufacturing of Georgia, Inc., July 29, 2020, Branch, E.).

As a subsidiary of the Korean Kia Motors Corporation, Kia Motors Manufacturing of Georgia (Kia) had both Korean and American managers for each department within the company. The American senior VP of Human Resources and Administration, a white male, was the chief administrative officer for Kia. The employee, a white American female, was hired in 2008 as Kia’s Team Relations Department Manager, overseeing all investigations of discrimination and harassment allegations. Another white American male served as manager of the HR department.

Stop the investigation. When a staff member of Kia’s General Affairs department, who was also the employee’s subordinate, told the employee she believed her supervisor, a black American female, was involved in a romantic relationship with the Korean president and CEO, the employee sought permission from the HR VP to investigate. He declined, however, to authorize the investigation. Not long after, the Korean HR coordinator asked the employee to secretly investigate the supervisor. A few weeks later, however, he not only asked her to stop but also to destroy any information she had gathered.

EEOC charge. Sometime after that, the HR VP designated the male HR manager as Head of the Department (HOD) over both Team Relations and HR. The female team relations manager objected that she was not likewise designated as HOD over Team Relations, complaining that it was because of her gender and that Korean management held antiquated views about the role of women in the workplace. She later filed an EEOC charge alleging she was not awarded an HOD designation due to gender and national origin discrimination. Around that same time, the HR HOD also filed an EEOC charge alleging national origin discrimination and retaliation.

Agreement. The HR VP and Kia’s general counsel then asked both the employee and the HR HOD to sign an agreement allegedly to prevent any misuse of their positions in their continuing interactions with employees. Specifically, the employee’s agreement stated that she would neither “use [her] position to solicit or influence Team Members to make claims against [Kia]” nor would she “make any written or verbal statements to Team Members that malign the company.” She signed the agreement on December 6, 2010, and on December 22, she was given a $12,000 bonus and was told by the HR VP that she was doing a good job.

Catalyst. The next day, however, the HR VP learned that the subordinate had also filed an EEOC charge asserting discrimination based on sex, national origin, and her Caucasian race. Because the charge was faxed from the same law firm that the employee and HR HOD were using in the litigation of their own charges, the HR VP became concerned they were recruiting other employees to sue the company. He then learned from one of the employee’s subordinates that the employee had been meeting with the subordinate, who allegedly indicated that the employee was the catalyst for the trio’s decision to take legal action.

Termination and lawsuit. The team relations manager was placed on administrative leave and fired not long thereafter. She filed a second EEOC charge alleging retaliation due to her opposition to Title VII activity. She subsequently sued, and the district court, granting Kia’s motion for summary judgment, found that Kia did not fire the employee in retaliation for conduct protected by Title VII, but instead because she solicited a subordinate to file an EEOC charge against Kia in contravention of her job responsibilities. On appeal, a divided Eleventh Circuit panel reversed the grant of summary judgment as to the employee’s retaliation claim. The appeals court then granted rehearing en banc.

Retaliation for filing EEOC charge? Affirming summary judgment against the employee’s retaliation claim, the appeals court majority first found the employee failed to show that but for the filing of her EEOC charge, Kia would not have fired her. After she filed the charge on November 22, Kia granted her request for additional vacation time, gave her the $12,000 bonus, and told her she was doing a good job. Not until 46 days later—when Kia learned she had recruited a subordinate to sue the company—did it determine that she could no longer function in her highly sensitive Team Relations manager position and decide to fire her, said the majority.

Solicitation was not protected activity. Alternatively, the employee argued that her termination violated Title VII and Section 1981 because, even assuming she recruited the subordinate to sue Kia, that was protected activity under the opposition clause and thus would not provide Kia with a legitimate, nonretaliatory reason for her termination. Turning to its precedent, specifically Rosser v Laborers’ Int’l Union of N. Am., Local No. 438—in which it “announced the seminal principle as to when an employee’s conduct loses its protection that has been recognized in our circuit for forty years”—the court explained that when the means by which an employee expresses her opposition “so interferes with the performance” of her job duties “that it renders [her] ineffective in the position for which [she] was employed,” this oppositional conduct is not protected under Title VII’s opposition clause.

Clear conflict. And here, said the court, the employee’s “efforts to recruit an employee to sue the company so clearly conflicted with the performance of her job duties as the manager of the Team Relations department that it rendered her ineffective in that position and reasonably prompted Kia to conclude that it could no longer trust her to do the job for which she was being paid.” Further, the court pointed out, since Rosser, not only has it repeatedly recognized that some otherwise protected oppositional conduct can fall outside Title VII’s protection if it so interferes with the employee’s performance of her job duties that it renders her ineffective, in Rollins v. Fla. Dep’t of Law Enf’t, it held that even if an employee’s oppositional conduct does not interfere with the employee’s performance of her own duties, it can still be deemed unreasonable—and thereby lose its protected status—if the opposition is expressed in a manner that unreasonably disrupts other employees or the workplace in general. Moreover, the court pointed out, the “requirement that opposition to allegedly unlawful employment practices must be done in a reasonable manner is well-established not only in this Circuit, but also in sister circuits.”

Application of precedent. Applying its precedent here, the court noted that not only did the employee have every right to oppose actions directed toward her by Kia that she believed violated Title VII, throughout her tenure, she exercised her right to complain, particularly about the subject matter of her first EEOC charge. Further, there was no dispute her EEOC charge was protected, said the court, noting that Kia did not discipline her for her internal complaints or fire her immediately after it learned about her charge. In addition, her internal advocacy on behalf of other employees was also protected activity for which she was never disciplined.

But when she surreptitiously recruited the subordinate to sue Kia, as Kia believed and as the team relations manager contested, she acted in direct conflict with her job responsibilities and thus became ineffective in her Team Relations manager position. As the HR VP, two HODs, and the employee’s assistant manager all testified, it was an important part of her job to resolve employee complaints in a way that would avoid litigation.

Job responsibility. Though the team relations manager argued that she could not stop another employee from suing the company, that did not mean she was not expected to try to resolve an employee’s grievance short of litigation. And while, as she noted, her job description did not include a requirement that she “prevent lawsuits,” she acknowledged that it was her duty as team relations manager to help Kia resolve any problems it might have with an employee. “Not surprisingly then,” wrote the court, “and regardless of what the job description may or may not have covered, the undisputed testimony indicates that Kia considers a Team Relations manager’s encouragement of a disgruntled employee to sue the company as inconsistent with an attempt to resolve the problem in a manner consistent with the company’s best interests.”

Honest belief. As to the employee’s assertion that she never in fact solicited her subordinate to sue the company, the court explained that “when assessing whether an employer has properly imposed an adverse action on an employee based on that employee’s conduct, the question is not whether the employee actually engaged in the conduct, but instead whether the employer in good faith believed that the employee had done so.” And here, said the court, there was no evidence to rebut Kia’s “repeated and insistent” testimony that it believed the employee had recruited the subordinate to sue Kia.

In summary, said the court, Kia did not fire the employee because she opposed some of its employment practices but rather, because it had an honest belief that by recruiting the subordinate to sue the company, she chose to act in a way that conflicted with the core objectives of her sensitive and highly important position.

Deeply divided en banc court. The en banc appeals court was deeply divided, as shown by the five separate concurring and dissenting opinions. Chief Justice William Pryor, concurring in full, responded briefly to one dissenter’s suggestion that the court’s own fractured opinion itself revealed the presence of a jury question. “Counting judicial noses cannot tell us whether a genuine dispute of material fact exists,” he stressed, noting that nine of the 14 judges (which included the trial judge) found no jury issue.

Kia’s reasonable belief sufficient. Judge Adalberto Jordan, concurring in the judgment, expressed some support for the dissenters, however. He agreed that the majority had not taken all facts in the light most favorable to the team relations manager, failed to clearly explain its protected activity analysis, and “relies too heavily on cases that arose in procedurally different postures.” Even so, and regardless of the conflicting evidence as to whether the team relations manager had actually recruited, encouraged, or solicited other employees to sue Kia, Judge Jordan agreed that Kia presented evidence it reasonably believed she had done so—and the manager lacked pretext evidence to show that this proffered reason for firing her was “unworthy of credence.”

Partial dissent. Judge Charles Wilson concurred in part and dissented in part. He would have joined the majority opinion in full if the team relations manager had not filed her own discrimination claim, but instead he found more than enough circumstantial evidence for a jury to conclude that her discrimination claim was the reason she was fired.

Judge Wilson cited this timeline: The team relations manager filed her EEOC charge on November 10, 2010; Kia received notice of it November 22; Kia placed her on administrative leave pending her signature on an acknowledgement document it created on December 3, which she signed December 6. On December 22, she received a $12,000 bonus check, “which a factfinder could interpret various ways,” and then was fired on January 21, 2011. In Judge Wilson’s view, “Only weeks after Gogel filed her charge with the EEOC, she was threatened with the loss of her job and suspended until she signed a document promising to forego her rights to support her charge. Less than two weeks later, she was fired.”

Full dissent: Misapplied law and procedural standards, ignored pretext evidence. Judges Beverly Martin, Robin Rosenbaum, and Jill Pryor dissented in full, but Martin and Rosenbaum wrote separately. In a 22-page opinion calling out the fact that it had taken 13 judges nearly four years to reach six separate opinions about the case, Judge Martin said the majority opinion “incorrectly applies the law governing opposition conduct protected by Title VII; glosses over disputes of fact about [the team relations manager’s] core job responsibilities; and fails to consider evidence suggesting that the reasons Kia gave for [her] dismissal were a pretext for unlawful retaliation.”

Among other things, the dissenting judge stressed that the majority improperly relied on precedent governing appellate review after trial rather than how employment cases should be decided at the summary judgment stage. Judge Martin also expressed concern about the manner in which the majority treated the team relations manager, noting that the majority recited disparaging comments in a judicial opinion that “do permanent harm to Ms. Gogel’s reputation when she has never been provided any opportunity to subject those negative accounts to adversarial testing.”

Dissent: “Illegitimate demands for loyalty.” Judge Beverly Rosenbaum’s 56-page dissenting opinion, joined by Martin and Jill Pryor, was the most forceful, suggesting that the majority opinion, while recognizing that employers may legitimately demand employee loyalty when those employers attempt in good faith to comply with Title VII, ignored precedent and “effectively immunizes employers’ illegitimate demands for loyalty when those employers consistently discriminate and retaliate against their employees and obstruct any efforts to comply with Title VII.” Judge Rosenbaum contended that the majority departed from existing precedent to essentially ban “any employee with any type of Title VII-related responsibilities from so much as discussing Title VII’s EEOC process with any other employee. And if the employee with Title VII-related duties violates this new rule, she risks losing all personal Title VII rights.”

Revisiting facts and balancing test. Judge Rosenbaum also took issue with what she characterized as the majority’s “cherry picking” of the evidence and Kia’s potential “bad faith” Title VII compliance efforts. She suggested that the majority simply did not apply the factors in the court’s Rollins v. Florida Department of Law Enforcement (1989) balancing test. Further, she faulted the majority for treating the team relations manager’s retaliation claim as based solely on her EEOC charge and not her nearly three years of opposing discrimination at the Kia plant. Accordingly, Judge Rosenbaum spent a good bit of time revisiting the facts, then applied the Rollins balancing test as to protected activity, and finally attempted to rebut the majority’s conclusion that the manager had not identified a material fact issue about the real reason Kia fired her.