Zouheir Hamade v. Valiant Gov't Servs. ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0211n.06
Case No. 19-5451
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 15, 2020
ZOUHEIR HAMADE, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
VALIANT GOVERNMENT SERVICES,
) KENTUCKY
LLC,
)
Defendant-Appellee. )
____________________________________/
Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
MERRITT, Circuit Judge. Plaintiff Zouheir Hamade appeals the dismissal under Federal
Rule of Civil Procedure 12(b)(6) of his Title VII retaliation claim against defendant Valiant
Government Services, LLC. Plaintiff, a United States citizen and resident of Florida, was working
as a translator on a military base in Iraq when he was fired by Valiant, a Kentucky-based defense
contractor. Plaintiff alleges that he was fired in retaliation for participating in an internal
investigation by the Army concerning a sexual harassment claim by a civilian female linguist who
worked for a different government contractor. Dismissal was warranted as a matter of law because
our precedent does not protect activity under the “participation” clause of Title VII unless a claim
has been filed with the Equal Employment Opportunity Commission. Plaintiff concedes that there
was no pending EEOC charge, and we therefore affirm the judgment of the district court.
Case No. 19-5451, Hamade v. Valiant Gov’t Servs., LLC
I.
The following factual allegations are set out in the complaint, and are taken as true for
purposes of reviewing the district court’s dismissal of plaintiff’s claim. In July 2017, plaintiff was
hired by defendant Valiant Government Services, LLC, as a full-time Arabic-Iraqi linguist
stationed in Iraq. While working in Iraq, plaintiff was approached by a civilian female linguist who
worked for a different government contractor. The relationship between the female linguist and
plaintiff is not described in the complaint, and it is unknown if she is a United States citizen. The
female linguist informed plaintiff that she had been sexually assaulted and asked plaintiff to help
her find the proper authority to report the assault. Plaintiff agreed to accompany the female linguist
to the offices of the Army Sexual Harassment/Assault Response and Prevention.
While traveling together to report the assault, the plaintiff and female linguist were
confronted by Sergeant Major Goodman, a noncommissioned Army officer. At this time, plaintiff
learned that Goodman was the woman’s alleged assailant. The female linguist told Goodman that
she was reporting his harassment and bullying against her. Goodman became angry, and
demanded to see plaintiff’s identification. Plaintiff refused, stating that he would only give his
identification to a higher-ranking officer. Goodman “continued to bully and pressure” plaintiff
and the female linguist, raising his voice and drawing a crowd. Complaint ¶ 19. Instead of giving
his identification to Goodman, plaintiff gave it to a first lieutenant nearby. The lieutenant, with
the help of a fellow commissioned officer identified as Major Dam, listened to the female linguist
explain what had occurred. Major Dam then accompanied plaintiff and the female linguist to the
office of Colonel Thomas Shuler, where plaintiff and the female linguist were advised to make an
appointment for the next day. The next day, plaintiff and the female linguist met with Colonel
Shuler to discuss the alleged sexual assault and the identification-withholding situation that had
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occurred the night before with Sergeant Goodman. Plaintiff expressed concern to Shuler about
retaliation from Goodman regarding plaintiff’s refusal to give Goodman his identification during
the confrontation the previous day.
The next day, plaintiff learned that Sergeant Goodman had complained to Valiant and
recommended that Valiant terminate plaintiff for withholding his identification from Goodman.
Plaintiff met with Colonel Shuler two days later to notify Shuler of Goodman’s complaint and
recommended termination of plaintiff. Colonel Shuler assured plaintiff that no adverse action
would be taken against him and promised to provide plaintiff with a “closure statement” within
the next two days that would assure plaintiff in writing that no retaliation would occur. Plaintiff
waited for the closure statement for two weeks before sending Shuler an email reminding the
Colonel of his promise.
The day after he emailed Colonel Shuler, plaintiff received a letter of reprimand from
Valiant, stating that the U.S. Army had filed a “complaint” against him because plaintiff had
requested a written statement from Colonel Shuler. After the Army filed its complaint against
plaintiff, plaintiff alleges that his unit was given orders to watch his performance. Thereafter,
formal statements appeared in plaintiff’s file relating to “petty,” non-performance concerns. Id. ¶
30. Plaintiff alleges that he was told by Valiant’s “site manager” that it was not a good time for
Valiant employees to raise issues with the Army because Valiant’s contract was up for rebidding.
Id. ¶ 28.
On January 7, 2018, Valiant informed plaintiff that he was being terminated for upsetting
an Iraqi General Officer by asking the Iraqi General to “switch seating” with another officer. When
plaintiff confronted the Iraqi General about the termination, the General was “astonished by the
news of the alleged complaint and vehemently denied having complained to anyone at any time
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about [plaintiff],” id. ¶ 33, and said that someone must have misinterpreted the joking regarding
the seating arrangement. The Iraqi General and another Iraqi officer, General Khalaf, submitted
written statements that no such incident happened, and no complaint was ever made.
Later, Valiant’s site manager told plaintiff that he had not been terminated because of the
chair-switching incident, but because he had “re-open[ed] the case” regarding the sexual assault
allegations against Sergeant Goodman. Id. ¶ 34. On January 11, 2018, Valiant’s deputy program
manager informed plaintiff that the main reason for his termination was because plaintiff “refused
to provide his identification” to Sergeant Goodman and because he assisted the female linguist in
reporting the sexual harassment by Goodman. Id. ¶ 37. On January 15, 2018, plaintiff filed a
complaint with the Office of the Army Inspector General in Iraq. Valiant was notified of plaintiff’s
complaint to the Inspector General. Two days after plaintiff filed the complaint with the Inspector
General, Valiant’s program director in Iraq informed plaintiff that his termination was “at will.”
Valiant’s site manager gave plaintiff a written reprimand that said plaintiff was being disciplined
because he had been too friendly with the Iraqi officers. Id. ¶ 41.
Four months after his termination, plaintiff filed a charge with the Equal Employment
Opportunity Commission. In responding to plaintiff’s filing of the EEOC charge, Valiant stated
that plaintiff had been terminated because of “his behavior and attitude,” “because he was
unprofessional and unfit to support the U.S. Government,” “because he complained about living
conditions,” and “because he routinely took issues outside of the proper chain of command and
was inappropriate with officers in the Iraqi security forces.” Id. ¶ 42.
On August 3, 2018, the EEOC dismissed the charge and issued a “Notice of Suit Rights.”
On November 12, 2018, plaintiff filed a one-count complaint under Title VII of the Civil Rights
Act of 1964 and the Kentucky Civil Rights Act in federal court, alleging that he had “engaged in
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Case No. 19-5451, Hamade v. Valiant Gov’t Servs., LLC
protected activity when he assisted in reporting the sexual harassment and hostile work
environment created by Sergeant Major Goodman,” and he was subject to adverse action in
retaliation for that his assistance. Id. ¶¶ 45-49. Valiant filed a motion to dismiss for failure to state
a claim because plaintiff failed to plead facts showing that he engaged in protected activity under
Title VII or Kentucky law. The district court granted Valiant’s motion, finding that plaintiff had
not alleged that he had engaged in protected activity as required by Title VII or Kentucky law.
Hamade v. Valiant Gov’t Servs., LLC, No. 5:18-cv-166, 2019 WL 1410904 (W.D. Ky. Mar. 28,
2019). Plaintiff filed a timely notice of appeal.1
II.
The sole issue in this appeal is whether Valiant’s alleged retaliation against plaintiff was
an “unlawful employment practice” under Title VII. See 42 U.S.C. § 2000e-3(a). Plaintiff claims
that the retaliation was in response to his allegedly protected activity of “participating” in a military
investigation of sexual harassment. The district court found that plaintiff’s conduct was not
protected activity, and we agree.
To establish a prima face case of retaliation under Title VII, an employee must show “(1) he
. . . engaged in protected activity; (2) the employer knew of the exercise of the protected right;
(3) an adverse employment action was subsequently taken against the employee; and (4) there was
a causal connection between the protected activity and the adverse employment action.”
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008). Only the first prong of the
prima facie case of retaliation, deciding whether plaintiff engaged in “protected activity,” is at
issue in this appeal. An employee may show that he engaged in “protected activity” for purposes
1
Plaintiff’s opening brief on appeal addresses only the dismissal of the Title VII claim, so he has waived appeal of
the dismissal of the claim under Kentucky law. We note that the outcome would be the same under Kentucky law
because the analysis is identical to that conducted under Title VII. See Brooks v. Lexington-Fayette Urban Cty.
Hous. Auth., 132 S.W.3d 790, 801-02 (Ky. 2004).
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of the Title VII antiretaliation provision by alleging conduct that falls within one of two clauses in
the statute, which says it is an “unlawful employment practice for an employer to discriminate
against any of his employees . . . [1] because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or [2] 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). The first clause is known as the “opposition clause,” and
the second as the “participation clause.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,
555 U.S. 271, 274 (2009). Plaintiff repeatedly and explicitly, including at oral argument, stated
that his argument falls exclusively under the “participation” clause. This concession is fatal to
plaintiff’s claim.
In Crawford, the Supreme Court held that an employee’s answer to her employer’s
question pursuant to the filing of an internal complaint may constitute protected activity under the
opposition clause of Title VII. Id. at 277–78 (“There is . . . no reason to doubt that a person can
‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion,
and nothing in the statute requires a freakish rule protecting an employee who reports
discrimination on her own initiative but not one who reports the same discrimination in the same
words when her boss asks a question.”). Addressing only the opposition clause, the Supreme Court
held that reporting a harassment claim was “protected activity” under Title VII where the reporting
was solicited by the employer rather than volunteered by an employee. Id.In addition to the factual distinctions between Crawford and this case, plaintiff did not
bring his claim under the opposition clause. Instead, he asserts that he engaged in protected activity
under the second clause of the statute, the participation clause, because he “made a charge,
testified, assisted, or participated in an investigation” by assisting the female linguist in reporting
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the alleged sexual assault to the Army and then continuing to assist in the Army’s internal
investigation. The Supreme Court’s Crawford decision does not cover plaintiff’s conduct. The
Supreme Court declined to reach the question of whether Crawford’s conduct was covered by the
participation clause. Id. at 280. Accordingly, we look to our circuit precedent regarding what
constitutes protected activity under the participation clause.
We have held that Title VII protects an employee’s participation in an employer’s internal
investigation into allegations of unlawful discrimination only where that investigation occurs
pursuant to a pending Equal Employment Opportunity Commission charge. In Abbott v. Crown
Motor Co., Inc., 348 F.3d 537, 543 (6th Cir. 2003), we held that “Title VII protects an employee’s
participation in an employer’s internal investigation into allegations of unlawful discrimination
where the investigation occurs pursuant to a pending EEOC charge.” It does not, however, cover
“an employee’s participation ‘in an employer’s internal, in-house investigation, conducted apart
from a formal charge with the EEOC;’ at a minimum, an employee must have filed a charge with
the EEOC or otherwise instigated proceedings under Title VII.” Id. (quoting EEOC v. Total Sys.
Serv., Inc., 221 F.3d 1171, 1174 n.2 (11th Cir. 2000)). Given this precedent concerning the
participation clause, which was not disturbed by Crawford, plaintiff’s sole argument on appeal is
to urge us to overrule our earlier decision and to extend the Supreme Court’s reasoning in Crawford
concerning the opposition clause to the participation clause regardless of whether an EEOC charge
has been filed. We may not do so. See, e.g., Miller v. Caudill, 936 F.3d 442, 447-48 (6th Cir.
2019) (“[P]ublished circuit precedent binds future panels unless (1) we overrule it as an en banc
court, or (2) it conflicts with intervening United States Supreme Court precedent.”).
We also note that plaintiff’s reliance on Faragher v. City of Boca Raton, 524 U.S. 775(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), is misplaced. These cases
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address an affirmative defense by an employer to a claim of vicarious liability when a supervisor
or coworker harasses a fellow employee. Plaintiff’s argument appears to be that the two cases are
relevant because they hold that the failure of an employee to take advantage of internal procedures
to address harassment by a supervisor or coworker may give rise to an affirmative defense by the
employer, so he was thereby protected by Title VII when he reported the harassment to the U.S.
Army or Valiant. But Valiant employed neither the alleged harasser nor the female linguist.
Faragher and Ellerth are simply inapposite under the facts of this case.
Plaintiff’s role was that of assisting the female linguist to file a complaint through the
Army’s internal disciplinary system, not with the Equal Employment Opportunity Commission.
Plaintiff has explicitly conceded that there was no pending EEOC investigation or charge by him
or anyone else at the time of his termination as required by our precedent in order to proceed with
a retaliation claim under the participation clause. As such, his complaint fails to state a claim
under the participation clause of Title VII.
For the foregoing reasons, we affirm the judgment of the district court.
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