Andrea Gogel v. KIA Motors Manufacturing of Georgia, Inc.

Case: 16-16850 Date Filed: 07/29/2020 Page: 1 of 150
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16850
________________________
D.C. Docket No. 3:14-cv-00153-TCB
ANDREA GOGEL,
Plaintiff-Appellant,
versus
KIA MOTORS MANUFACTURING OF
GEORGIA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 29, 2020)
Case: 16-16850 Date Filed: 07/29/2020 Page: 2 of 150
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN,
ROSENBAUM, JILL PRYOR, BRANCH, GRANT, TJOFLAT,∗ ED CARNES,∗∗
MARCUS,∗∗∗ and JULIE CARNES,∗∗∗∗ Circuit Judges.∗∗∗∗∗
BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM
PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE
CARNES, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge, filed a concurring opinion.
JORDAN, Circuit Judge, filed an opinion concurring in the judgment.
WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.
MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and
JILL PRYOR, Circuit Judges, joined.
ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and
JILL PRYOR, Circuit Judges, joined.
∗ We heard this case en banc while Judge Tjoflat was an active judge, and he elected to
continue to participate in the decision of this case after becoming a senior circuit judge. See
Eleventh Circuit Rule 35-9 (“Senior circuit judges of the Eleventh Circuit . . . may continue to
participate in the decision of a case that was heard or reheard by the court en banc at a time when
such judge was in regular active service.”).
∗∗ We heard this case en banc while Judge Ed Carnes was an active judge, and he elected
to continue to participate in the decision of this case after becoming a senior circuit judge. See
Eleventh Circuit Rule 35-9 (“Senior circuit judges of the Eleventh Circuit . . . may continue to
participate in the decision of a case that was heard or reheard by the court en banc at a time when
such judge was in regular active service.”).
∗∗∗ We heard this case en banc while Judge Marcus was an active judge, and he elected to
continue to participate in the decision of this case after becoming a senior circuit judge. See
Eleventh Circuit Rule 35-9.
∗∗∗∗ Senior Circuit Judge Julie Carnes elected to participate in this decision pursuant to
28 U.S.C. § 46(c).
∗∗∗∗∗ Judge Robert J. Luck joined the Court on November 19, 2019 and did not
participate in this decision. Similarly, Judge Barbara Lagoa joined the Court on December 6,
2019 and did not participate in this decision. Likewise, Judge Andrew Brasher joined the Court
on June 30, 2020 and did not participate in this decision.
2
Case: 16-16850 Date Filed: 07/29/2020 Page: 3 of 150
BRANCH, Circuit Judge:
After being fired by Kia Motors Manufacturing Georgia, Inc. (“Kia”),
Andrea Gogel sued her former employer, asserting claims for gender and national-
origin discrimination and retaliation under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and 42 U.S.C. § 1981. The district
court granted summary judgment in favor of Kia on all claims, and Gogel appealed
to our court. A panel of this Court affirmed as to Gogel’s discrimination claims,1
but the majority opinion reversed the district court’s grant of summary judgment as
to Gogel’s claim that Kia fired her in retaliation for her exercise of protected
conduct. Gogel v. Kia Motors Mfg. of Ga., Inc., 904 F.3d 1226 (11th Cir. 2018),
vacated, 926 F.3d 1290 (11th Cir. 2019) (granting rehearing en banc). One
member of the panel dissented as to the reversal of summary judgment in favor of
Kia on Gogel’s retaliation claim. See Gogel, 904 F.3d at 1239–48.
We granted rehearing en banc to consider whether the district court erred in
granting summary judgment on Gogel’s claim that she was fired in retaliation for
1
Gogel alleged that she had been fired both because of her sex and national origin and in
retaliation for protected activity. Concluding that there was no evidence that a discriminatory
motive based on Gogel’s sex or national origin led to her being fired, the panel opinion held that
summary judgment was warranted as to any termination claim based on those grounds. Gogel v.
Kia Motors Mfg. of Ga., Inc., 904 F.3d 1226, 1239 (11th Cir. 2018), vacated, 926 F.3d 1290(11th Cir. 2019) (granting rehearing en banc). Gogel also alleged that Kia had discriminated
against her based on her sex and national origin when it failed to characterize her Team Relations
manager position as being Head of Department. The panel opinion concluded that Gogel
abandoned this claim on appeal. Id. at 1233 n.3. We agree with and adopt both of these rulings
by the panel.
3
Case: 16-16850 Date Filed: 07/29/2020 Page: 4 of 150
engaging in protected conduct. After careful review of the record and having the
benefit of oral argument, we affirm the grant of summary judgment as to Gogel’s
retaliation claim under Title VII and § 1981.
I. BACKGROUND 2
Formed in 2006 and located in the rural community of West Point, Georgia,3
Kia is a subsidiary of the Korean Kia Motors Corporation, whose president and
CEO at the time was Byung Mo Ahn. Each department within the company had a
Korean coordinator who worked in tandem with the American managers at Kia.
The Korean coordinators were hired by the parent Kia company in South Korea
and served three- to four-year assignments at the local Kia before being rotated
out. These Korean coordinators were heavily involved in decision-making at Kia.4
As for the American management, Randy Jackson, a white American male,
was initially hired as the director of Human Resources and thereafter promoted to
Senior Vice President of Human Resources and Administration. In effect, Jackson
2
Because we hear this appeal following a grant of summary judgment in favor of Kia, we
take the facts of this case in the light most favorable to Gogel. Essex Ins. Co. v. Barrett Moving
& Storage, Inc., 885 F.3d 1292, 1299 (11th Cir. 2018).
3
West Point, Georgia is located 81 miles from Atlanta, 81 miles from Montgomery,
Alabama, and 135 miles from Birmingham, Alabama.
4
As will be discussed further in this opinion, because of the Korean coordinators’
significant involvement in the decision-making at Kia, tensions developed as some American
managers came to resent what they perceived as a lack of respect for and deference to the
American managers’ input.
4
Case: 16-16850 Date Filed: 07/29/2020 Page: 5 of 150
was the chief administrative officer for Kia. Human Resources was divided into
two units: a unit that handled the administrative end of employee relations, such as
hiring, background checks, and payroll (hereinafter “HR”), and the Team Relations
unit, which handled virtually every other aspect of employee relations once an
employee was on board, including the receipt of allegations by employees of
harassment and discrimination, as well as the investigation of those allegations.
Robert Tyler, a white American male, was selected as the manager of the HR
department. Gogel, a white American female, was hired in 2008 as Kia’s Team
Relations Department Manager, with three assistant managers who reported
directly to her. As the manager of Team Relations, she oversaw all of these
investigations and reported back to Jackson with the results and her
recommendations.
The events giving rise to the specific issue before us began during the tenure
of an employee named Diana Ledbetter, a white American female hired in 2008 as
a staff member of Kia’s General Affairs department. The General Affairs
department was responsible for a variety of miscellaneous operational duties,
including overseeing the cafeteria, office furniture, office supplies and machinery,
and janitorial services. The General Affairs department was also responsible for
special events, including “celebration functions,” “dinners or any kind of
conferences or any kind of meetings,” catering, flowers, and the like. Ledbetter
5
Case: 16-16850 Date Filed: 07/29/2020 Page: 6 of 150
had been hired as a General Affairs specialist and told that she would be
responsible for “Protocol and Events.” These events often involved visits by the
Korean president of the company, Mr. Ahn, and other Korean officials. As to
protocol, the events were designed to be consistent with the protocol followed for
such dignitaries in Korea. And it was this protocol to which Ledbetter objected.
Specifically, she was asked to pour wine for the Korean executives at these events
and, upon their arrival at the plant, to hold flowers and say, “Welcome, Chairman.”
As a result, some unidentified co-workers teased her as being a “geisha.”
Ledbetter disliked having to perform these duties. In addition, Ledbetter
told Gogel that she believed that Ledbetter’s supervisor, K.M., 5 a black American
female, was involved in a romantic relationship with President Ahn. This alleged
relationship was of concern to Ledbetter because she believed this relationship
enabled K.M. “to improperly use her position of manager to control subordinate
employees” like Ledbetter. Ledbetter spoke to Gogel and others about this issue
and requested that she be transferred away from K.M.’s supervision. Jackson
agreed to transfer Ledbetter to Team Relations but told her that she had a better
chance of a promotion if she stayed in General Affairs. Her dislike of working
under K.M. notwithstanding, Ledbetter decided she would rather stay in General
5
For purposes of this opinion, we refer to Ledbetter’s supervisor by her initials “K.M.”
6
Case: 16-16850 Date Filed: 07/29/2020 Page: 7 of 150
Affairs with the prospect of a promotion. In September 2010 she was designated
the “acting” assistant manager of General Affairs. Nonetheless, Ledbetter
continued to ask Gogel to investigate what she believed to be an inappropriate
relationship between K.M. and Ahn.
In fact, Gogel sought permission from Jackson in late 2008 to investigate the
relationship between President Ahn and K.M. because of the possibility that K.M.
might be “utilizing th[e] relationship to the detriment of others” and that K.M.
might not have fully consented to the relationship. Gogel was concerned about
“the risk that [the relationship] could create for the company” and she wanted to
investigate the issue to make sure that the company was not “at risk” from “people
being treated in a way differently than they should be treated, from a legal and an
ethical perspective.” Accordingly, she asked Jackson if she could conduct an
investigation as to whether President Ahn and K.M. were having an affair.
Jackson declined to authorize such an investigation.
Shortly thereafter, Kevin Kim, the Korean Coordinator for HR and
Jackson’s counterpart, asked Gogel to investigate K.M. secretly regarding her
treatment of other team members and whether there was any “falsification of time”
on her part, but he did not direct an investigation regarding President Ahn. Kim
directed Gogel not to reveal this investigation to Jackson. Within a few weeks,
7
Case: 16-16850 Date Filed: 07/29/2020 Page: 8 of 150
however, Kim asked Gogel to stop the investigation and to destroy any information
she had gathered related to the investigation.
In March 2009, Jackson designated Tyler as the Head of Department
(“HOD”) over both Team Relations and HR and indicated that this new title was
based on Tyler’s years of experience and longevity with Kia. Given the significant
responsibilities of her position, Gogel objected that she was not likewise
designated as an HOD over Team Relations.6
After Gogel was not given a head of department designation in 2009, she
met with Jackson and Tyler and informed them that she believed she did not
receive the HOD title because of her gender and that there was a gender issue
within the company. Indeed, as her complaint recounts, Gogel believed that the
Korean management held antiquated views about the role of women in the
workplace, generally, and that as to Gogel, specifically, she was not sufficiently
listened to or respected by the Korean managers.
In August 2010, Jackson sent Gogel an email asking for her thoughts on how
the Team Relations department could be improved. Gogel sent two lengthy emails
in response that Jackson summarized as stating that “her department was being
hampered by micro-management from people who did not understand the work
6
This grievance constituted a substantial part of the basis for her claim of national origin
and sex discrimination, which claim she has now abandoned on appeal.
8
Case: 16-16850 Date Filed: 07/29/2020 Page: 9 of 150
being performed, did not respect her successes or the passion she brought to her
job, and did not give her the freedom that she regarded ‘as a basic aspect of being
an American and working in an American environment.’” Having received this
and other input indicating that American managers felt they were not being given
appropriate decision-making authority, Jackson asked Tyler to gather information
as to the concerns of American management, including some specific factual
examples.
Conferring with Gogel and some other members of American management,
Tyler drafted and presented a lengthy Report of Concerns, setting out the American
managers’ unhappiness with the Korean managers and the lack of deference and
respect they believed these managers showed their American counterparts. This
report was delivered to Jackson in late September 2010. On October 12, 2010,
Jackson attempted to speak to Gogel about the concerns expressed in the report,
but she indicated her discomfort speaking to Jackson and instead indicated that she
would prefer to talk to an independent or outside investigator. A couple of days
later, however, Gogel met with Jackson. The meeting ended when Jackson had
another appointment. Thereafter, Gogel sent an email to Jackson, Tyler, Webb,
and one of the Korean coordinators, explaining that Tyler had informed her that the
matter was closed because “it was difficult to address issues that [Gogel] would not
give information about.” Gogel expressed her disagreement with the
9
Case: 16-16850 Date Filed: 07/29/2020 Page: 10 of 150
characterization that she was uncooperative and noted that Jackson was the one
who ended the interview. Further, she asserted that she told Jackson she would
answer any questions he had, but he did not follow up with her. Gogel requested
an independent investigation into her concerns.
Thereafter, on November 10, 2010, Gogel filed her first charge with the
Equal Employment Opportunity Commission (“EEOC”), alleging that she was not
awarded an HOD designation due to gender and national origin discrimination.
Kia received this charge on November 22, 2010. On November 19, 2010, Tyler
also filed a charge with the EEOC, alleging national origin discrimination and
retaliation.
Given the sensitivity of Gogel’s and Tyler’s positions and their special
access to the plant’s entire workforce, Jackson and Kia general counsel Charles
Webb requested on Friday, December 3, 2010, that Gogel and Tyler each sign an
agreement to prevent any misuse of their positions in their continuing interactions
with employees.7 As relevant to the present appeal, this agreement provided that
7
Tyler signed the agreement on that same day, December 3. Tyler nonetheless violated
this agreement on two separate occasions, when he downloaded dozens of documents. See Tyler
v. Kia Motors Mfg. Ga., Inc., 702 F. App’x 945, 948 (11th Cir. 2017); Tyler v. Kia Motors Mfg.
Ga., Inc., 2016 WL 9663168, at *8–9 (N.D. Ga. Aug. 1, 2016). Learning of this conduct, Kia
initiated an investigation into Tyler’s computer activities and discovered that Tyler had
forwarded hundreds of emails from Kia networks to his personal email accounts. Tyler, 2016
WL 9663168, at *9. Kia suspended Tyler and ultimately terminated him on January 6, 2011,
stating in the termination letter that Kia “ha[d] lost confidence in [his] trustworthiness and
10
Case: 16-16850 Date Filed: 07/29/2020 Page: 11 of 150
Gogel 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.” 8
Expressing discomfort about signing the agreement until her lawyer could
first review it, Gogel initially refused to sign the agreement and was placed on
administrative leave. On Monday, December 6, 2010, which was the next business
day, Gogel signed the agreement.9 She was allowed to return to work that same
day. On December 16, 2010, Gogel requested four additional days off (from
therefore, [Kia] ha[d] no alternative but to discharge [him] immediately.” Id. (internal quotation
marks omitted).
Tyler subsequently sued, alleging retaliatory termination in violation of Title VII and
§ 1981. The district court granted summary judgment to Kia. On appeal, we affirmed the grant
of summary judgment, concluding that even though Tyler’s filing of an EEOC charge constituted
protected activity, his violation of the agreement constituted a neutral, non-retaliatory reason for
terminating him, and that Tyler had failed to show that this ground was pretextual. Tyler, 702 F.
App’x at 949–52.
8
The agreement provided:
By signing below, I agree as follows:
A. I will not discuss my EEOC charge or similar claims against [Kia] with Team
Members and will not use my position to solicit or influence Team Members
to make claims against [Kia];
B. I will not put any Team Members, including my reports, in any conflict of
interest by seeking their assistance in any fact finding or any information
gathering related to my claim against [Kia];
C. I will not make any written or verbal statements to Team Members that
malign the company; and
D. I will not seek access to any files or documents that relate in any way to the
merits of my claim or similar claims against [Kia].
9
We note that there is nothing in the record that indicates that Gogel contested any of the
agreement’s terms.
11
Case: 16-16850 Date Filed: 07/29/2020 Page: 12 of 150
January 4, 2011 through January 7, 2011), which Jackson approved. Then, on
December 22, 2010, Kia gave Gogel a discretionary $12,000 bonus and Jackson,
who handed her the check, told her she was doing a good job and shook her hand.
Things changed dramatically on December 23, however. Unbeknownst to
Jackson, on December 10, 2010, Diane Ledbetter had filed her own EEOC charge
asserting a claim of discrimination based on her sex, national origin, and
“Caucasian” race. She also alleged the creation of a hostile work environment
based on the job duties she was assigned, Kia’s refusal to transfer her to her
preferred department, Kia’s refusal to investigate whether a co-worker had
received a promotion because she was having a sexual relationship with a
supervisor, and being told by some Korean managers that “good mothers stay at
home and don’t work.”
On the afternoon of December 23, Jackson received written notice of
Ledbetter’s EEOC charge. The charge itself indicated that it was faxed from the
same law firm that Gogel and Tyler were using in the litigation of their own
charges: an Atlanta law firm named Barrett & Farahany. Jackson explained in his
deposition that “it was very concerning” and “very puzzl[ing]” to him that
Ledbetter happened to choose the “same law firm” as Gogel and Tyler. Concerned
that Gogel and Tyler were now “recruiting” other employees to sue the company,
Jackson quickly emailed his Korean counterpart, Kim, to alert him and President
12
Case: 16-16850 Date Filed: 07/29/2020 Page: 13 of 150
Ahn that it appeared that Gogel and Tyler were recruiting other employees to sue
Kia. Jackson explained in his deposition that he was so shaken by the possibility
that Gogel might be recruiting employees to sue Kia because, as Team Relations
manager, Gogel was responsible for trying to resolve employee complaints
internally, not to recruit employees to sue the company.
Immediately after Jackson received notification on December 23 of
Ledbetter’s EEOC charge, the Kia plant closed for the Christmas holidays.
Thereafter, when the plant reopened during the first week of January 2011, and
while Gogel was still on vacation, one of Gogel’s subordinates, Arthur Williams,
approached Jackson and general counsel Webb and expressed concerns regarding
the conduct of Gogel and Tyler. Williams, a black American male, was one of
three assistant managers working under Gogel in the Team Relations department,
and he enjoyed a friendly relationship with Ledbetter. According to Williams,
during October or November 2010 he noticed that Gogel and Ledbetter were
meeting at various times. Then, at some point in November, Ledbetter confided in
Williams that she, Gogel, and Tyler were planning to sue the company and were all
working with the same attorney to do so.
After this revelation by Ledbetter, Williams began “paying close attention”
and observed frequent meetings between Gogel and Ledbetter, as well as three to
five meetings between Gogel, Ledbetter, and Tyler. Sometimes the meetings
13
Case: 16-16850 Date Filed: 07/29/2020 Page: 14 of 150
between Gogel and Ledbetter would last from morning until lunch, and after the
weekly Friday afternoon meetings, Gogel and Ledbetter would sometimes stay
behind, continuing to meet privately even as Williams left for the evening between
5 and 6 p.m. All the while, Ledbetter kept telling Williams that she, Gogel, and
Tyler were going to sue and use the same attorney. Further, Ledbetter indicated to
Williams that Gogel was the ringleader and the catalyst for the trio’s decision to
take legal action. All of these developments were startling to Williams because
Gogel’s and Tyler’s conduct was so at odds with the mission of the Team
Relations department to try to “keep lawsuits from happening,” not to instigate
them.
Williams conveyed the above information to Jackson and Webb when he
met with them in January. In short, Jackson learned from Williams that Gogel and
Tyler were frequently meeting with and actively encouraging Ledbetter to sue Kia,
that they were coordinating through the use of the same lawyer, and that Gogel was
the leader of these endeavors.10 Jackson likewise thought it “very strange” that
Gogel and Ledbetter had been engaging in such frequent meetings. Williams
10
When asked in his deposition whether he had indicated to Jackson and Webb that
Gogel was the leader, Williams responded to the effect that that he had just “repeated [] what
Diana [Ledbetter] told me” and that what Ledbetter “was telling” Williams was that “they were
all filing and they all had the same attorney” and that Gogel was the “leader.” Williams
understood Gogel to be the “catalyst” for the bringing of the EEOC charges because Ledbetter
had led him to believe that Gogel was the “ringleader.”
14
Case: 16-16850 Date Filed: 07/29/2020 Page: 15 of 150
further informed Jackson that Gogel exhibited a strong animus against the Korean
management team and that she “hated the Koreans.”
In addition, another assistant Team Relations manager, Paul Grimes, a black
American male, also met with Jackson during this same period of time, and he
corroborated some of the information provided by Williams. Grimes confirmed
that Williams told him that Ledbetter, Gogel, and Tyler were going to sue the
company and that they were trying to “persuade” Ledbetter to “join them in suing”
Kia. Like Williams, Grimes was incredulous that Gogel and Tyler would behave
in this way, but he nonetheless started “paying attention,” and noticed “suspicious
meetings behind closed doors.” He informed Jackson and Webb that “the entire
[Team Relations] department was wondering what was occurring with Diana
[Ledbetter] meeting with Andrea [Gogel] for such long periods of time” and that
“[t]hey would meet as often as three times a week and for several hours.” Further,
“[a]s [the] time approached when they filed their charges,” Gogel, Tyler, and
Ledbetter “were meeting nearly every day . . . for 1-1.5 hours.” 11
Having received the above information from Williams and Grimes, on
January 7, 2011, Jackson and Webb called Gogel in for a meeting. They began by
stating that Webb needed information concerning Ledbetter in order to respond to
11
Ledbetter disputes some of the statements attributed to her and Gogel disputes the
accuracy of some of Williams’ and Grimes’ testimony. See infra at 54 n.24. We discuss those
disputes and the extent to which they are relevant to our ultimate decision later in this opinion.
15
Case: 16-16850 Date Filed: 07/29/2020 Page: 16 of 150
the latter’s recent EEOC charge. During this meeting, they inquired whether
Gogel had “colluded” with Ledbetter and whether she had violated the December
6 agreement. The discussion focused on Gogel’s relationship with Ledbetter,
meetings she had with Ledbetter, and what her conversations had been with
Ledbetter. Gogel denied having any significant interactions with Ledbetter,
explaining that her recent meetings had concerned only trivial operational
issues. 12
Jackson placed Gogel on administrative leave following the January 7, 2011
meeting and ultimately terminated her employment on January 19, stating in his
deposition, “I was totally convinced that [Gogel] had solicited and encouraged
other team members to file a lawsuit against the company. I had lost total
confidence and trust in her to perform her jobs, her job duties that she was hired to
do, and I could not continue her employment with Kia.” The formal termination
letter provided as follows:
As you know, your position as Manager of Team Relations in
Human Resources is critically important to [Kia]. One of your
primary duties is to investigate potential discrimination or harassment
claims, either personally or by directly supervising those conducting
the investigations, in order to protect [Kia] by taking prompt action
when warranted. You and [Kia] previously recognized the potential
for conflict of interest in the discharge of your duties, and on
12
During this litigation, however, Gogel admitted to telling Ledbetter that she did not
trust the people at Kia “to listen to or deal with any concerns” and that Gogel was planning
“to seek outside assistance” regarding her own complaints against Kia. Gogel also concedes
that she provided Ledbetter with the name of the attorney with whom Gogel had chosen to
meet.
16
Case: 16-16850 Date Filed: 07/29/2020 Page: 17 of 150
December 6, 2010, you signed the attached [agreement]. In this
document you agreed that you would not solicit or influence team
members to make claims against [Kia], you would not put any team
members in a conflict of interest, you would not make any written or
verbal statements to team members that malign the company, and that
you would not seek to access files or documents that relate in any way
to the merits of your claims.
As we discussed on January 7, 2011, Diana Ledbetter filed a
cha[r]ge of discrimination against [Kia] on December 10, 2010. Part
of this charge alludes to claims that [Kia], including Human
Resources, did not properly investigate her complaints against [Kia].
In investigating this charge, [Kia] received credible reports that
[Ledbetter] discussed her intent to file a claim with you in advance of
doing so, that you did not attempt to encourage [her] to internalize the
complaint (rather than to externalize the complaint), and that you did
not notify [Kia] about the likely filing of a charge by another
individual. You were seen by multiple people having numerous,
lengthy private conferences with Ms. Ledbetter during the last two-
three months, yet you denied having any significant recent interaction
with her. Based on our investigation, one could conclude that you
encouraged or even solicited the filing of the charge. At the very
least, there is an appearance of a conflict of interest sufficient to cause
[Kia] to lose confidence in the loyalty and trust that is required by
your position.
Also, since your administrative leave began, we have received
additional reports from within your department and elsewhere which
caused [Kia] to lose faith in you as a manager. Team Members fear
retaliation from you, find inappropriate your stated and demonstrated
personal dislike for many of the managers at [Kia], and are concerned
by your demonstrated animus toward the Korean culture at [Kia].
Finally, some of the Team Members you supervise perceive that you
do not support [Kia’s] positive conciliatory approach to dealing with
issues, but instead prefer a combative win-lose approach which often
escalates issues unnecessarily.
Therefore, [Kia] has no alternative but to discharge you
immediately.
17
Case: 16-16850 Date Filed: 07/29/2020 Page: 18 of 150
Following her termination, Gogel filed a second EEOC charge in which she
alleged retaliation by Kia. Specifically, Gogel stated that she had been discharged,
that Kia said it had discharged her for encouraging another employee to file a
charge of discrimination with the EEOC, and that she believed she had been
retaliated against due to her opposition to unlawful acts under Title VII. Kia
subsequently filed its position statement with the EEOC regarding the second
charge, explaining that Gogel “was responsible for conducting and overseeing
investigations, administering corrective action, and evaluating and improving team
member morale. . . . [Gogel] was also responsible for investigating and correcting
any and all complaints of harassment and discrimination in the workplace.” Kia
explained that after receiving notice of Gogel’s first EEOC charge, it had her sign
the December 6 agreement “[i]n an attempt to protect [Kia’s] team members and
proprietary information.” Thereafter, upon receiving Ledbetter’s EEOC charge
and conducting an investigation, Kia discovered from other employees that
Ledbetter and Gogel had met several times, yet Gogel denied these interactions
when questioned. Further, Kia noted that “there were no reports of discrimination
documented or investigations opened regarding Ledbetter during the time period in
question. [Gogel] did not attempt to defuse the situation or handle it in any manner
in which she was employed to do.” Moreover, “after the meetings with [Gogel],
18
Case: 16-16850 Date Filed: 07/29/2020 Page: 19 of 150
Ledbetter contacted [Gogel’s] attorney for representation purposes.” Finally, Kia
noted that:
[i]t became obvious to [Kia] that [Gogel] was blatantly dishonest
when explicitly questioned about Diana Ledbetter. Further, she did
not perform her job, but instead encouraged a team member to sue
[Kia] and seek outside counsel to deal with her discrimination charge
instead of handling it in-house. This was clearly a breach of trust, a
conflict of interest, and a blatant failure to perform her job duties.
Accordingly, [Gogel] was terminated on January 19, 2011.
After receiving a right to sue notice from the EEOC, Gogel filed the
underlying action. In her amended complaint, Gogel alleged in relevant part that
Kia terminated her in retaliation for her filing of the first EEOC charge. The
parties filed cross-motions for summary judgment, and the district court denied
Gogel’s motion and granted Kia’s motion. With regard to the retaliation claim, the
district court concluded that Kia did not fire Gogel in retaliation for conduct
protected by Title VII, but instead fired her for a legitimate reason: solicitation of a
subordinate to file an EEOC charge against Kia, in contravention of her job
responsibilities. Gogel appealed, contending that the district court erred in
granting summary judgment for two main reasons: (A) there is a triable issue of
fact as to whether the real reason Kia fired Gogel was because she had filed her
own EEOC charge, not because she solicited another employee to sue the
company, and (B) Kia’s stated reason for terminating Gogel’s employment—
19
Case: 16-16850 Date Filed: 07/29/2020 Page: 20 of 150
Gogel’s alleged solicitation of Ledbetter—was itself protected conduct under Title
VII’s opposition clause and could not justify Gogel’s termination.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, “view[ing]
the evidence in the light most favorable to the non-moving party.” Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Although “questions
of fact in job discrimination cases are ‘both sensitive and difficult’ and ‘[t]here will
seldom be “eyewitness” testimony as to the employer’s mental processes,’ . . .
‘none of this means that trial courts or reviewing courts should treat discrimination
differently from other ultimate questions of fact.” Chapman v. AI Transp., 229
F.3d 1012, 1026 (11th Cir. 2000) (en banc) (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 524 (1993)) (first alteration in original). In other words, “the
summary judgment rule applies in job discrimination cases just as in other cases.”
Id. Summary judgment is proper if the evidence shows “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Further, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could
20
Case: 16-16850 Date Filed: 07/29/2020 Page: 21 of 150
not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 289 (1968))).
III. DISCUSSION
Title VII prohibits an employer from retaliating against “any . . . employee[]
. . . because [s]he has opposed any practice made an unlawful employment
practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under
[Title VII].” 42 U.S.C. § 2000e-3(a). The first part of the anti-retaliation
provision is known as the “opposition clause” and the second part as the
“participation clause.” See E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174
(11th Cir. 2000). Retaliation claims are also cognizable under 42 U.S.C. § 1981and are analyzed under the same framework as Title VII claims. See CBOCS W.,
Inc. v. Humphries, 553 U.S. 442, 452–57 (2008); Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998).
To make a prima facie case for a claim of retaliation under Title VII, a
plaintiff must first show (1) that “she engaged in statutorily protected activity,”
(2) that “she suffered an adverse action,” and (3) “that the adverse action was
causally related to the protected activity.” Jefferson v. Sewon Am., Inc., 891 F.3d
21Case: 16-16850 Date Filed: 07/29/2020 Page: 22 of 150
911, 924 (11th Cir. 2018); Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir.
2009).
Once the prima facie case is established, it creates a “presumption that the
adverse action was the product of an intent to retaliate.” Bryant, 575 F.3d at 1308.
The burden of production then shifts to the employer to rebut the presumption by
articulating a legitimate, non-discriminatory reason for the employment action. Id.If the employer produces such a reason, the presumption is rebutted, and the
plaintiff must then demonstrate that the “proffered reason was merely a pretext to
mask [retaliatory] actions.” Id. To establish the necessary causation, a plaintiff
must demonstrate that “her protected activity was a but-for cause of the alleged
adverse action by the employer.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 362 (2013). In other words, “a plaintiff must prove that had she not [engaged
in the protected conduct], she would not have been fired.” Jefferson, 891 F.3d at
924. “Importantly, throughout this entire process, the ultimate burden of
persuasion remains on the employee.” Sims v. MVM, Inc., 704 F.3d 1327, 1333
(11th Cir. 2013).
A. Summary Judgment is Warranted on Gogel’s Retaliation Claim
Alleging that She Was Fired Because She Filed An EEOC Charge
In support of her retaliation claim, Gogel contends that the real reason Kia
fired her was because she had filed an EEOC charge—which is clearly protected
conduct under Title VII’s participation clause—not because she solicited another
22
Case: 16-16850 Date Filed: 07/29/2020 Page: 23 of 150
employee to sue the company. In other words, Gogel argues that Kia’s stated
reason for her termination—her recruitment of a subordinate to sue the company—
is a pretext intended to mask its true reason for taking this action. This argument is
without merit.
Kia concedes, and we will likewise assume, that Gogel established a prima
facie case as to her retaliation claim based on her filing of the first EEOC charge.
Specifically, (1) the filing of her first EEOC charge constituted protected conduct;
(2) thereafter, Gogel was fired; and (3) there was a causal connection between the
two events sufficient to withstand the requirements for making a prima facie case,
which has traditionally required a showing “that the protected activity and the
adverse action were not wholly unrelated.”13 Goldsmith v. Bagby Elevator Co.,
13
As noted, for purposes of proving causality in a Title VII retaliation claim, the
Supreme Court in Nassar held that a plaintiff must prove that but for the protected conduct, the
defendant would not have taken the particular adverse action. We and other circuit courts have
integrated this but-for standard into our summary judgment analysis. See Knox v. Roper Pump
Co., 957 F.3d 1237, 1245 (11th Cir. 2020); Jefferson, 891 F.3d at 924; cf. Nesbitt v. Candler
Cty., 945 F.3d 1355, 1359 (11th Cir. 2020) (applying the “but for” test to a summary judgment
decision involving the antiretaliation provision of the False Claims Act).
Circuit courts, however, have been inconsistent on the question whether Nassar’s but-for
causation standard applies at the prima facie stage of the summary judgment analysis or whether
it is at the pretext stage of the analysis when the plaintiff must satisfy this standard. Compare
Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (a plaintiff must show at the
pretext stage “that retaliation was the real reason for the adverse employment action” and that the
adverse action “would not have occurred in the absence of—that is, but for—the defendant’s
conduct.” (alteration adopted) (internal quotation marks omitted)); Garcia v. Prof. Contract
Serv., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (a plaintiff must satisfy the Nassar but-for test at
the pretext stage of the analysis); Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 258–59
(3d Cir. 2017) (likewise requiring the plaintiff to satisfy the but-for test at the pretext stage of the
analysis) with Mollet v. City of Greenfield, 926 F.3d 894, 896–97 (7th Cir. 2019) (applying the
Nassar but-for test at the prima facie stage); Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir.
23
Case: 16-16850 Date Filed: 07/29/2020 Page: 24 of 150
513 F.3d 1261, 1277–78 (11th Cir. 2008) (quoting Simmons v. Camden Cty. Bd. of
Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)). The burden of production then
shifted to Kia to articulate a legitimate, non-retaliatory reason for firing Gogel.
Kia articulated such a reason. Specifically, Kia explained that it fired Gogel not
because she filed an EEOC charge, but because she had recruited another
employee to sue the company, which conduct Kia believed to have rendered Gogel
ineffective in her position as Team Relations manager.14 Thus, Kia rebutted the
presumption, arising from Gogel’s prima facie showing, that the adverse action
was the product of an intent to retaliate. Bryant, 575 F.3d at 1308.
Therefore, to defeat summary judgment, Gogel had to demonstrate that
Kia’s proffered reason for its decision—Gogel’s solicitation of Ledbetter to sue
Kia—was merely a pretext to mask its real reason—Gogel’s filing of an EEOC
charge—and that but for this latter action Kia would not have fired her. We have
2019) (same); Redlin v. Grosse Point Pub. Sch. Sys., 921 F.3d 599, 614–15 (6th Cir.
2019)(implying that the Nassar test applies at the prima facie stage).
In Jefferson, we did not squarely address whether the but-for test should apply at the
prima facie or pretext stage of analysis, but we did remark that, in the summary judgment
context, the question was whether a reasonable jury could find that the employer’s “explanation
was pretextual and that [the plaintiff’s] complaint was the ‘but-for cause’ of her termination.”
Jefferson, 891 F.3d at 925. In Roper, we also applied Nassar’s but-for standard when discussing
whether a reasonable jury could find that the plaintiff was terminated based on his protected
activity, a question that arises during the pretext stage of analysis. Roper, 957 F.3d at 1245–46.
Likewise, we will assume here that the but-for test is to be applied at the pretext stage of the
summary judgment examination, and our analysis so proceeds under this assumption.
14
We address in subsection B Gogel’s contention that her alleged recruitment of
Ledbetter was itself protected conduct under Title VII and therefore could not justify her
termination.
24
Case: 16-16850 Date Filed: 07/29/2020 Page: 25 of 150
repeatedly emphasized that “[p]rovided . . . the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it . . . .” Chapman, 229 F.3d at 1030; see also Hornsby-Culpepper v. Ware,
906 F.3d 1302, 1312 (11th Cir. 2018); Ash v. Tyson Foods, Inc., 664 F.3d 883,
892–93 (11th Cir. 2011); Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1265–66
(11th Cir. 2010); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.
2004). Thus, to establish pretext at the summary judgment stage, a plaintiff must
demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Jackson v. Ala.
State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). “[A] reason is not
pretext for [retaliation] ‘unless it is shown both that the reason was false, and that
[retaliation] was the real reason.’” Springer v. Convergys Customer Mgmt. Grp.
Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cty. Comm’n of
Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)). And to repeat, in
determining whether the plaintiff has met her burden to show pretext, we remain
mindful that it is the plaintiff’s burden to provide evidence from which one could
reasonably conclude that but for her alleged protected act, her employer would not
have fired her.
25
Case: 16-16850 Date Filed: 07/29/2020 Page: 26 of 150
Gogel has not shown “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in Kia’s stated reason for discharging her—her
solicitation of another employee to sue the company—sufficient to provide a
legitimate ground for a reasonable factfinder to find that explanation to be
unworthy of credence. In short, she has failed to provide evidence showing that
but for her filing of an EEOC charge, Kia would not have fired her. As noted, Kia
did not fire Gogel upon receiving notice of her EEOC charge on November 22,
2010. To the contrary, Kia granted her request for additional vacation time,
awarded her a $12,000 discretionary bonus, and Jackson advised Gogel that she
was doing a good job. It was only when Kia later learned—46 days after it had
received her EEOC charge15—that Gogel had recruited a subordinate to sue the
company that Kia concluded Gogel could no longer function in her highly sensitive
position as manager of Team Relations and that she must therefore be discharged.
15
Gogel and our dissenting colleagues, Judges Martin and Wilson, argue that evidence of
pretext is present because her termination in January 2011 was in close temporal proximity to the
filing of her own November 2010 EEOC charge. While close temporal proximity between the
protected conduct and the adverse employment action can establish pretext when coupled with
other evidence, temporal proximity alone is insufficient. See Johnson v. Miami-Dade Cty., 948
F.3d 1318, 1328 (11th Cir. 2020) (temporal proximity of less than two months was insufficient
by itself to establish pretext); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298
(11th Cir. 2006) (the close temporal proximity of two weeks was evidence of pretext but
“probably insufficient to establish pretext by itself”); Wascura v. City of South Miami, 257 F.3d
1238, 1244–45 (11th Cir. 2001) (a three and one-half month period between the employee’s
protected conduct and her termination was, standing alone, insufficient to demonstrate pretext).
And here, an intervening event—Kia’s discovery of information indicating that Gogel had
solicited Ledbetter to sue and had provided her with the name of an attorney to use—undermined
the significance of any temporal proximity.
26
Case: 16-16850 Date Filed: 07/29/2020 Page: 27 of 150
Gogel is necessarily arguing that if she had recruited Ledbetter to sue the company
and referred her to an attorney, but had never filed her own EEOC charge, Kia
would not have fired her. Yet, there is no evidence16 to reasonably support an
inference that Kia would have fired Gogel following the filing of Gogel’s charge
had the Ledbetter matter not later come to its attention. 17 In fact, all the record
16
In support of their argument that a reasonable jury could have concluded that Gogel’s
filing of the first EEOC charge was the “but-for” cause of Kia’s decision to fire her, our
dissenting colleagues cite to evidence they say shows that Robert Tyler was likewise retaliated
against when he was fired after he filed his EEOC Charge. In other words, they argue that
because Kia engaged in similar retaliation toward another employee who filed an EEOC charge,
Gogel has bolstered her claim that she too was fired because she had filed a charge.
At least one problem with this argument is the fact that our Court has reviewed Tyler’s
retaliation claim and concluded that Kia did not retaliate against Tyler based on his filing of a
charge. Specifically, Kia was granted summary judgment on Tyler’s claim of retaliatory
termination, and we affirmed that grant on appeal. See Tyler, 702 F. App’x at 952. In affirming,
we noted that Kia had stated that it fired Tyler because he improperly downloaded confidential
files to his personal computer in violation of both company policy and the conflict of interest
agreement he entered after filing his EEOC charge. Id. at 951. We concluded that Tyler had not
“provide[d] any evidence demonstrating ‘weaknesses, implausibilities, or inconsistencies’” in
Kia’s proffered justification sufficient to show that Kia’s non-retaliatory reasons for firing him
were pretextual. Id. While Tyler, which involves a different plaintiff, does not represent the law
of the case, its reasoning nonetheless applies equally to Gogel’s claim of pretext, which we
likewise find to be unsupported by the evidence.
Similarly, Ledbetter’s assertion that, after Gogel’s termination, she felt pressured to drop
her own EEOC charge and to acknowledge that Gogel had played a role in her decision to file an
EEOC charge does not suggest a weakness, implausibility, or inconsistency in Kia’s explanation
that it fired Gogel, not because Gogel had filed an EEOC charge, but because Gogel had acted in
contradiction of Kia’s core expectations for a person in her position. See id.17
Indeed, our dissenting colleague, Judge Martin, earlier appeared to share this view in
her majority panel opinion (now vacated) when, in rejecting Gogel’s claim that she was
terminated because of her gender and national origin, she stated, “Rather, the record strongly
indicates that Kia fired Ms. Gogel for assisting Ms. Ledbetter with her charge.” Gogel, 904 F.3d
at 1239. As to the majority panel opinion’s discussion of the retaliation claim, Gogel’s filing of
the first EEOC charge was apparently deemed so unlikely a candidate for the protected activity
retaliated against that the majority panel opinion never even mentioned it as a possible basis for
the retaliation claim. Instead, the majority panel opinion focused solely on whether Gogel’s
alleged solicitation of another employee to sue constituted protected activity, concluding that
27
Case: 16-16850 Date Filed: 07/29/2020 Page: 28 of 150
evidence pointed to the continuation of the employment relationship between
Gogel and Kia after Gogel filed her charge. Conversely, had Gogel only recruited
Ledbetter to sue the company, providing her with the name of an attorney to use in
this endeavor—but never filed her own EEOC charge 18—nothing in the record
supports an inference that Kia would have tolerated such conduct from its Team
Relations manager. See discussion infra in subsection B. In short, having failed to
demonstrate that Kia’s stated reason for firing her was a pretext to mask a
retaliatory motive, Gogel has necessarily failed to show that a reasonable jury
could find that but for the filing of her EEOC charge she would not have been
fired.
“Viewing the evidence in the light most favorable to Ms. Gogel, the record shows that Kia fired
her for engaging in protected opposition activity, which she carried out in a reasonable manner.”
Gogel, 904 F.3d at 1238.
18
Our dissenting colleague, Judge Rosenbaum, faults us for limiting ourselves to
consideration of Gogel’s filing of the first EEOC Charge and for failing to consider whether one
could infer that Kia fired Gogel because of her prior complaints concerning perceived
mistreatment of herself and others. Although Gogel has certainly provided in great detail her
version of her interactions with Kia, including internal complaints she made during her
employment, she has focused on the filing of her first EEOC charge, which charge claimed
discrimination based on Kia’s refusal to designate her position as an HOD, as the primary event
triggering Kia’s decision to fire her. At any rate, consideration of any prior incidents between
Gogel and Kia—many of them occurring long before Gogel ever filed a charge—does not
change the above analysis. Despite Gogel’s earlier internal complaints while employed with
Kia, Kia fired her only when it became aware of facts suggesting that she had recruited Ledbetter
to sue the company. There is no evidence to suggest that Kia would have allowed Gogel to
remain as Team Manager once Kia received information that Gogel had solicited a subordinate
to sue the company and had provided that employee with the name of a lawyer to use—
regardless of whether or not Gogel had previously complained internally. Thus, this “prior
complaints” evidence does not satisfy Gogel’s burden to demonstrate pretext or otherwise
provide evidence from which one could reasonably infer that but for these prior complaints, Kia
would not have fired her.
28
Case: 16-16850 Date Filed: 07/29/2020 Page: 29 of 150
B. Gogel’s Solicitation of Ledbetter Did Not Constitute Protected
Activity
Alternatively, Gogel argues that her termination violates Title VII and
§ 1981 because, even assuming arguendo that she recruited Ledbetter to sue the
company, as Kia came to believe, such conduct is itself protected activity under the
opposition clause and, therefore, it could not provide Kia with a legitimate,
nonretaliatory reason for her termination. In response, Kia contends that by
attempting to recruit another employee to sue Kia, Gogel’s action so conflicted
with her responsibilities as Team Relations manager that it cannot be considered to
constitute protected activity. Because the parties have assumed that Kia’s stated
reason for firing Gogel cannot rebut her prima facie case of retaliation under the
participation clause if that reason would violate the opposition clause, we assume
that premise without deciding the question.
1. Legal Framework
The question then is whether, in light of her responsibilities in the Team
Relations Department, Gogel’s recruitment of a subordinate to sue the company
constituted conduct protected against retaliation under the opposition clause. Our
precedent provides a ready answer: 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. Rosser
29
Case: 16-16850 Date Filed: 07/29/2020 Page: 30 of 150
v. Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221, 223 (5th Cir.
1980). And here, Gogel’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.
“[I]t is well established that the protection afforded by [Title VII’s
opposition clause] is not absolute.” Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d
397, 400–01 (11th Cir. 1989). To qualify for protection under the opposition
clause, “the manner in which an employee expresses her opposition to an allegedly
discriminatory employment practice must be reasonable.” Id. at 401. When
examining the reasonableness of the manner of an employee’s conduct, we
“balanc[e] the purpose of the statute and the need to protect individuals asserting
their rights thereunder against an employer’s legitimate demands for loyalty,
cooperation and a generally productive work environment.” Id.In fact, since Rosser, we have repeatedly recognized that some otherwise
protected oppositional conduct can fall outside Title VII’s protection if the conduct
so interferes with an employee’s performance of her job duties that it renders her
ineffective in the position in which she is employed. For instance, in Hamm v.
Members of the Board of Regents of the State of Florida, 708 F.2d 647, 654 (11th
30
Case: 16-16850 Date Filed: 07/29/2020 Page: 31 of 150
Cir. 1983), we affirmed the dismissal of a Title VII retaliation claim for failing to
state a prima facie case, holding that the plaintiff failed to show protected activity
because the plaintiff’s activities in opposition to alleged discrimination conflicted
with the plaintiff’s essential duties as a human resources advisor. Specifically,
Hamm’s “duties included investigating instances of alleged discrimination, filing
written reports of her findings with the appropriate supervisory personnel, and
recommending appropriate action for their final approval or disapproval.” Id. The
record showed, however, that rather than follow her employer’s established
procedures for resolving discrimination complaints, the employee consistently
acted as an advocate on behalf of aggrieved employees. Id. at 653–54. We
concluded that her actions were not protected under Title VII because she
“repeatedly chose to work outside the framework [her employer] was attempting to
establish to deal with discrimination claims. [And] [a]n employer may remove an
employee from a position similar to that at issue here without violating Title VII
based on the manner in which the employee undertakes his or her duties.” Id. at
654.
Similarly, in Whatley v. Metropolitan Atlanta Rapid Transit Authority
(“MARTA”), 632 F.2d 1325, 1326 (5th Cir. 1980), the plaintiff, an Equal
Employment Opportunity compliance officer for MARTA, alleged that he was
retaliated against when he was terminated after engaging in protected conduct by
31
Case: 16-16850 Date Filed: 07/29/2020 Page: 32 of 150
filing a formal discrimination complaint on behalf of another employee. On
appeal, we affirmed the denial of his retaliation claim, concluding that the plaintiff
was not fired because he had participated in a statutorily protected activity (filing
the complaint). Id. at 1329. Instead, he was fired because he had violated the
company’s normal reporting procedures and assumed a role that conflicted with his
job responsibilities. Id. In so holding, we emphasized that “[f]ailing to follow
prescribed administrative procedures is not a statutorily protected activity. Title
VII cannot be held to immunize an employee from all consequences of his
behavior merely because part of his job happens to require the handling of
discrimination complaints.” Id.Additionally, in Jones v. Flagship International, 793 F.2d 714, 716 (5th Cir.
1986), the plaintiff was in-house legal counsel and the Manager of Equal
Employment Opportunity Programs for her employer, and her duties included
investigating charges of discrimination brought against the company, conciliating
such charges, representing the company before various agencies, and preparing an
affirmative action plan. At some point, the plaintiff experienced sexual harassment
in the workplace and complained to her superiors, but her grievances were ignored.
Id. at 716–17. She then filed a charge with the EEOC alleging pay discrimination
and sexual harassment. Id. at 717. Upon learning of her charge, her employer
suspended her with pay. Id. Following her suspension, Jones’s employer received
32
Case: 16-16850 Date Filed: 07/29/2020 Page: 33 of 150
information that Jones also solicited another employee to file a discrimination
charge against the company and invited another employee to join in a lawsuit
against the company. Id. Jones was later fired, and she brought a retaliation claim.
Id. at 717–18. Discussing the impact of Jones’s solicitation of another employee to
sue the company, the Fifth Circuit cited Rosser for the proposition that even
sincere opposition to discriminatory practices under Title VII “may be so
disruptive or inappropriate as to fall outside the protections of § 704(a).” Id. at
728. The court agreed that an employer’s right to run its business must be
balanced against the rights of an employee to express her grievances and promote
her own welfare. Id. However, the court noted that the plaintiff’s “right to express
her grievances and promote her own welfare did not depend on others joining in
her suit.” Id. Thus, applying the above tests to the facts before it, the Fifth Circuit
concluded that, given Jones’s particular job responsibilities, her solicitation of
others to sue the company was not protected conduct for purposes of a retaliation
claim. Id. Jones is very similar to the case at hand, and we have cited the Fifth
Circuit’s decision in Jones with approval. See Rollins, 868 F.2d at 401 (noting that
Jones is “consistent” with this Court’s precedent).
And in Rollins, we expanded on the “rendered-ineffective-in-the-job” test set
out in Rosser and Hamm. Rollins filed a frequent number of both informal and
formal complaints of discrimination. Id. at 398. Notably, in doing so, she
33
Case: 16-16850 Date Filed: 07/29/2020 Page: 34 of 150
compromised none of the responsibilities of her position. Specifically, she was a
technician, not a human resources manager, and she filed a complaint only on her
own behalf. Id. There was no solicitation or recruitment of other employees to file
a complaint, nor would such conduct have conflicted with Rollins’s job
responsibilities as none of her job responsibilities involved working to resolve
discrimination complaints. Thus, her oppositional conduct did not render her
ineffective in her position. Nevertheless, we determined that the manner in which
Rollins leveled her grievances—filing an overwhelming number of mostly
spurious complaints and frequently doing so in an insubordinate and antagonistic
manner—was unreasonable. Id. at 399. Given that reasonableness of oppositional
conduct is determined by “balancing the purpose of the statute and the need to
protect individuals asserting their rights thereunder against an employer’s
legitimate demands for loyalty, cooperation and a generally productive work
environment,” id. at 401, Rollins’ conduct—which clearly undermined a
productive work environment—was not protected. Id.In short, Rosser established the principle that an employee’s oppositional
conduct loses its protection when the manner chosen to voice that opposition so
interferes with the employee’s performance of her job that it renders her ineffective
in the position for which she was employed. Rollins expanded on that principle,
holding that even if an employee’s oppositional conduct does not interfere with the
34
Case: 16-16850 Date Filed: 07/29/2020 Page: 35 of 150
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. It is the
principle announced in Rosser that is most pertinent to our analysis in this case.
We reject the argument of our dissenting colleague, Judge Rosenbaum, that Rollins
is relevant to determining whether an employee’s manner of opposition so
interferes with her job responsibilities that it is unprotected. Our decisions in
Rosser, Hamm, and Whatley govern that question; Rollins instead concerns the
distinct question whether conduct that does not interfere with an employee’s job
duties is nonetheless so disruptive that it does not qualify for protection.
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. See, e.g., Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000)
(“A question of retaliation is not raised by a removal for conduct inconsistent with
[the employee’s] duties, unless its use as a mere pretext is clear.” (alteration in
original) (quoting Pendleton v. Rumsfeld, 628 F.2d 102, 108 (D.C. Cir. 1980)));
Robbins v. Jefferson Cty. Sch. Dist. R-1, 186 F.3d 1253, 1259 (10th Cir. 1999)
(adopting Rollins’s reasonableness balancing test), abrogated on other grounds,
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002); Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260 (4th Cir. 1998) (affirming district
35
Case: 16-16850 Date Filed: 07/29/2020 Page: 36 of 150
court’s decision that an employee did not engage in protected activity where she
breached her employer’s trust by copying confidential documents and giving them
to an outside party, as “Title VII was not intended to immunize insubordinate,
disruptive, or nonproductive behavior at work” (quotation omitted)); Holden v.
Owens-Illinois, Inc., 793 F.2d 745, 751 (6th Cir. 1986) (citing Rosser for the
proposition that an employee’s conduct is not covered by Title VII’s opposition
clause if the conduct “so interferes with the performance of [the employee’s] job
that it renders him ineffective in the position for which he was employed.”); Jones,
793 F.2d at 728 (citing Rosser for the proposition that even sincere opposition to
discriminatory practices under Title VII “may be so disruptive or inappropriate as
to fall outside the protections of [Title VII]”). 19
Our dissenting colleague, Judge Martin, seems to question the validity of the
legal principles applied in Hamm and Jones because appellate review of the ruling
for the defendant in those cases occurred after a bench trial, instead of a motion for
summary judgment. That fact does not vitiate the legal principles applied in those
cases. In each case, both the district court and the appellate court proceeded
19
The EEOC filed an amicus brief in favor of Gogel, however, its own guidance manual
provides that “the protection of the opposition clause only applies where the manner of
opposition is reasonable” and that “[o]pposition to perceived discrimination also does not serve
as license for the employee to neglect job duties. If an employee’s protests render the employee
ineffective in the job, the retaliation provisions do not immunize the employee from appropriate
discipline or discharge.” EEOC Enforcement Guidance on Retaliation and Related Issues, 2016
WL 4688886, *8–9 (E.E.O.C. Guidance (Aug. 25, 2016)).
36
Case: 16-16850 Date Filed: 07/29/2020 Page: 37 of 150
through the McDonnell Douglas framework in analyzing the retaliation claim. In
Hamm, we affirmed the district court’s grant of judgment as a matter of law at the
completion of the plaintiff’s case, applying the McDonnell Douglas test and
concluding that the plaintiff had failed to make a prima facie case because the
manner of her opposition rendered that conduct unprotected. Hamm, 708 F.2d at653–54. In Jones, the Fifth Circuit affirmed the district court’s ruling for the
defendant that, while the plaintiff had made a prima facie case of retaliation (she
was fired after filing an EEOC charge), she had nonetheless failed to prove a
causal connection between that act and the defendant’s termination decision, given
conduct by the plaintiff that sharply conflicted with her job responsibilities. Jones,
793 F.2d at 724–25.
Nevertheless, whatever fact-finding the above district courts may have
engaged in to reach their rulings, the appellate court’s review of those decisions
resulted in the articulation of legal principles that the appellate court then applied
to the universe of facts before it. Likewise, in this case we have applied those
same principles recognized in our precedent to the undisputed material facts in this
case. In any event, Rosser did not involve a bench trial, but instead a summary
judgment ruling that we affirmed, and in doing so we announced the seminal
principle as to when an employee’s conduct loses its protection that has been
recognized in our circuit for forty years, a principle that controls in this case.
37
Case: 16-16850 Date Filed: 07/29/2020 Page: 38 of 150
Before leaving the above discussion of our precedent concerning the
circumstances under which otherwise protected conduct can lose its protection, we
address our dissenting colleague Judge Rosenbaum’s efforts to dismantle that
precedent. Our colleague initially appears to give a grudging nod to the principle
that an HR manager whose duty is to endeavor to resolve employee complaints
internally violates that responsibility when she instead recruits a subordinate to sue
the company and provides that subordinate with the name of an attorney to do so.
But Judge Rosenbaum then crafts an exception so amorphous and unworkable as to
gut this principle. Specifically, according to Judge Rosenbaum, if the HR manager
is unhappy with the employer’s decision not to conduct an investigation suggested
by the manager or if, in the manager’s view, the employer has engaged in conduct
that the manager thinks might be discriminatory under Title VII, then the manager
is transformed into a free agent who, no longer tethered to her previous job duties,
may not only urge the discontented employee to sue, but also facilitate that effort
by identifying a lawyer for the employee to use. In other words, now empowered
to act as the ultimate arbiter of her employer’s conduct, the manager is free to
abandon the responsibilities of her position, yet still keep her job.
At bottom, Judge Rosenbaum argues that whenever a plaintiff HR manager
with job responsibilities like Gogel’s abandons those responsibilities because she
finds fault with the employer’s decisions and is then terminated, the balancing test
38
Case: 16-16850 Date Filed: 07/29/2020 Page: 39 of 150
(discussed above) requires that the judicial decision-maker determine whether the
manager should nonetheless be given a pass and allowed to remain in her job.
Leaving aside the absence of any standard by which a court or jury would be
guided in its decision whether to extend amnesty to an employee who has decided
that she no longer needs to perform her job duties, this position turns on its head
the long-standing principle that Title VII does not empower a court (or jury) to “sit
as a super-personnel department that reexamines an entity’s business decisions.”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting
Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).
As a corollary to the above argument, our dissenting colleague cites Payne v.
McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. Unit A 1981) in
support of her position that only a jury can properly decide whether Gogel’s
solicitation of a subordinate to sue Kia, in contravention of her job responsibilities,
is protected conduct. Payne does not support this contention nor override Rosser.
The plaintiff in Payne was a seasonal laborer who, in the offseason, engaged in
picketing and boycotting activities against his sometime employer based on his
belief that the employer engaged in racially discriminatory practices. When he was
not rehired as the next season rolled around, he sued under Title VII, claiming that
the employer’s failure to rehire him was done in retaliation for his protected
activity of picketing. The legal question before the district court was whether the
39
Case: 16-16850 Date Filed: 07/29/2020 Page: 40 of 150
plaintiff was required to prove that the employer had actually engaged in
discriminatory practices or whether the plaintiff need only show his reasonable
belief that the employer had done so. We affirmed the district court’s decision that
the plaintiff must only show the latter. Id. at 1140.
On appeal, however, the defendant employer argued for the first time that
the form of plaintiff’s opposition—boycotting and picketing by a former
employee—did not constitute the type of activity that could be considered to be
protected. Id. at 1142. We held that the employer was obliged to make that
argument and introduce any supporting evidence when the case was before the
district court, not for the first time on appeal. Id. at 1144. Further, because we
were not prepared to say, as a matter of law, that picketing and boycotting by a
former employee was “clearly unprotected,” given that the plaintiff was not
working for the defendant at the time of the activity and therefore had little
opportunity for direct access to air his grievances, id. at 1145, and because
“further factual development [was] essential for a proper resolution of this issue,”
id. at 1146, we declined the defendant’s request that we opine one way or the other
as to whether the plaintiff’s conduct was protected, id. at 1146 n.15. Finally,
because the employer had failed to raise this issue before the district court, we also
declined to remand this question to the district court, but instead simply affirmed
the latter’s judgment for plaintiff. Id. at 1146.
40
Case: 16-16850 Date Filed: 07/29/2020 Page: 41 of 150
In the course of reaching this decision, we made the observation on which
our dissenting colleague relies, “[a]t least where conduct is not unprotected as a
matter of law, the fact finder must have an opportunity to hear evidence, to balance
the competing considerations, and to reach a conclusion as to the reasonableness of
the conduct.” Id. Leaving aside the fact that the statement is arguably dicta, 20 it
does not change the analysis of this case. In contrast with Gogel, there was no
contention in Payne that, had he been rehired, the plaintiff’s picketing activity
while not employed with the company would so interfere with the performance of
his job duties as a seasonal laborer that it would render him ineffective in that
position, as was the case in Rosser. Further, the Payne court clearly did not say
that summary judgment could never be warranted on the question whether
particular conduct was protected; in fact, it cited with approval Rosser, which
affirmed the granting of summary judgment to the defendant employer based on
the latter’s argument that the plaintiff’s particular oppositional conduct was not
protected because it rendered her ineffective in her job position. Id. at 1142–43.
Finally, in this case, Gogel’s solicitation of a subordinate to sue the company, and
20
See United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (“As our cases
frequently have observed, dicta is defined as those portions of an opinion that are ‘not necessary
to deciding the case then before us.’” (quoting United States v. Eggersdorf, 126 F.3d 1318, 1322
n.4 (11th Cir. 1997))). In Payne, as to the defendant’s request that we consider its belated
argument, we held that because the defendant’s new argument required further factual
development, it could therefore not be decided as a matter of law on appeal, and because the
defendant should have earlier raised this argument before the district court, we likewise did not
remand for the district court to oversee the necessary factual development.
41
Case: 16-16850 Date Filed: 07/29/2020 Page: 42 of 150
her providing the name of a lawyer to help in that endeavor, so conflicted with her
duties as Team Manager that this conduct rendered her ineffective in that position
as a matter of law.
In short, we do not have to concern ourselves further with the problems
inherent in the approach that our dissenting colleague puts forward because we
have precedent that controls in this case and that precludes the new test that Judge
Rosenbaum would have us adopt. To repeat, this precedent in Rosser provides that
an employee’s oppositional conduct loses its protection when the manner chosen to
voice that opposition so interferes with the employee’s performance of her job that
it renders her ineffective in the position for which she was employed. And as
explained below, that is what happened in this case.
2. Application of The Above Legal Standard to This Case
Turning to the present case, there is no dispute that Gogel had every right to
oppose actions directed toward her by Kia that she deemed to violate Title VII.
And throughout her tenure, she exercised her right to complain, particularly about
the subject matter of her first EEOC charge: Kia’s failure to classify Team
Relations as its own separate department, with Gogel as its HOD. The making of
informal complaints or the use of an internal grievance system is protected conduct
under the opposition clause. See Furcron v. Mail Centers Plus, LLC, 843 F.3d
1295, 1311 (11th Cir. 2016) (“Title VII’s protections are not limited to individuals
42
Case: 16-16850 Date Filed: 07/29/2020 Page: 43 of 150
who file formal complaints, but extend to those who voice informal complaints as
well.” (citing Rollins, 868 F.2d at 400)). Likewise, there is no dispute that Gogel’s
filing of her own EEOC charge was also protected. Yet, Kia never disciplined
Gogel for making these internal complaints nor did it fire Gogel upon learning that
she had filed an EEOC charge. Instead, as noted above, after the latter event,
Gogel was given a bonus and told that she was doing a good job.
As for oppositional conduct by Gogel on behalf of other employees, Gogel
likewise enjoyed the right to report to management any concerns she had about the
way in which Kia was treating its employees. And the record indicates that she did
so. Gogel’s internal advocacy before Kia management on behalf of other
employees was clearly protected conduct. Yet, Gogel was never disciplined for
advocating for other employees or relaying any complaints they may have shared.
But when Gogel surreptitiously recruited Ledbetter to sue Kia 21—not just
encouraging Ledbetter but giving her the name of the attorney with whom Gogel
was also meeting—Gogel acted in direct conflict with her job responsibilities and
was thereby rendered ineffective in the Team Relations manager position, as Kia
could no longer trust Gogel to do the job for which she was hired. After all, it was
21
Gogel and Ledbetter deny that Gogel recruited Ledbetter to sue Kia. See infra at 54
n.24. But as discussed infra at 54–56, the pertinent question for purposes of examining the
propriety of Kia’s decision to terminate Gogel is what Kia in good faith believed to have been
Gogel’s conduct. And Jackson’s unrebutted testimony indicates that he believed Gogel to have
so acted.
43
Case: 16-16850 Date Filed: 07/29/2020 Page: 44 of 150
the Team Relations department to whom employees would address complaints
about their employment, including complaints about discrimination or harassment.
Team Relations members were hired to investigate complaints, resolve conflicts,
and be an advocate for the team members in the best interests of the company. As
Team Relations manager, Gogel occupied a position of trust and confidence and
was tasked with trying to maintain employee morale. Further, as the testimony
consistently indicated, the Team Relations department, and certainly its manager,
were expected to interact with complaining employees in an effort to internalize
the resolution of any complaint and thereby avoid, if possible, the external
resolution of that complaint, such as the filing of an EEOC charge and a
subsequent lawsuit.
Specifically, as Tyler, the HOD of Human Resources under whose umbrella
Gogel’s Team Relations operated, acknowledged, Team Relations was charged
with “[e]nsuring a positive work environment and ensuring that team members
(employees) don’t have a need to seek out third parties,” to resolve their
complaints. By third parties, Tyler meant “litigation and lawsuits,” “government
organizations,” and “labor unions.” Tyler agreed that Kia’s expectations for its
Team Relations manager was someone “who could interact with the employees to
avoid the employees going to third parties.”
44
Case: 16-16850 Date Filed: 07/29/2020 Page: 45 of 150
Likewise, Jackson explained that the Team Relations manager is expected to
advise him at all times if the manager becomes aware that an employee is
considering legal action. He explained that a manager is absolutely not supposed
to solicit litigation against the company or recruit an employee to sue, and to do so
would be in conflict with the responsibilities of the position. As Jackson testified,
“I don’t want my team relations manager out soliciting and encouraging other team
members to file lawsuits. That’s not what she’s paid to do. That’s not what she
was hired to do.” Jackson reiterated this point: “[S]he shouldn’t be out soliciting
and encouraging other team members to file lawsuits. She’s paid to prevent
lawsuits. She’s paid to let me know [] if other people are interested in filing
lawsuits. That’s what her job is supposed to be doing.” And again: “She has an
obligation to let me know that if she knows someone is going to file a lawsuit
against our company, she has the . . . responsibility to let me know about that.”
And yet again: “I think I said earlier that I had a major concern with my Manager
of Team Relations soliciting and encouraging other team members to file a lawsuit
against our company. That role is paid to help people and prevent lawsuits from
being filed, not to encourage and solicit lawsuits to be filed. . . . The Team
Relations Manager’s role is to do everything possible to keep—or basically not to
encourage other team members to file lawsuits against our company.”
45
Case: 16-16850 Date Filed: 07/29/2020 Page: 46 of 150
Similarly, Williams, the assistant Team Relations manager who worked
directly under Gogel, also agreed that in recruiting Ledbetter to sue the company,
Gogel had acted contrary to the expectations of her job, which was to try to resolve
an employee’s problem without the latter taking legal action, not encourage the
employee to take that action: “I mean you don’t go to a doctor to get leukemia.
We’re the people that’s [sic] supposed to keep lawsuits from happening.”
Likewise, Kia’s Rule 30(b)(6) witness, Latesa Bailey, who later succeeded
Tyler as Kia’s HOD of Human Resources, testified that a Team Relations manager
is the person in charge of employee relations for the entire company, and that a
Team Relations manager who solicits an employee to sue the company has acted
“in direct contradiction to what she was actually hired for.” “[Gogel’s] primary
job duty was to resolve employment conflicts, any type of disputes, to try to
resolve them before they got out to an outside party, such as an attorney or the
EEOC.” Given the responsibilities of Gogel’s position, it was a breach of those
responsibilities for her instead to recruit a team member to sue the company. As
Bailey noted, “I don’t know a company that actually hires someone [as a Team
Relations manager] . . . to solicit team members to file a charge against the
company for a lawsuit.”
Gogel likewise agrees that Team Relations conducted investigations into
employees’ allegations of discrimination and that it was her department’s
46
Case: 16-16850 Date Filed: 07/29/2020 Page: 47 of 150
responsibility to assist Jackson in resolving potential discrimination problems. She
acknowledges that she would have been involved in making a recommendation as
to the disposition of an investigation, either to Jackson or the legal department or
both. Her involvement was particularly important when the investigation
concerned a member of management.
All of the witnesses identified above—the Vice President for Human
Resources, two HODs of Human Resources, and Gogel’s assistant Team Relations
manager—testified that it was an important part of the Team Relations manager’s
job to attempt to resolve employee complaints in a way that would avoid litigation.
Jackson and Bailey further testified that a Team Relations manager who instead
solicits an employee to sue the company has acted in direct contradiction to what
she was actually hired for. Gogel provides no evidence contradicting the testimony
of these Kia witnesses that a Team Relations manager was expected to investigate
an employee’s complaint with the goal of resolving that complaint internally or,
conversely, that a Team Relations manager who recruits an employee to sue the
company has acted in conflict with a central responsibility of her position. Instead,
her only attempted response to this undisputed evidence is itself not responsive.
For example, Gogel proffers her own testimony that she lacked any power to
prevent a complaining employee from filing a lawsuit against the company, “as
[her] duties included problem solving, but not preventing lawsuits. [Kia] has a
47
Case: 16-16850 Date Filed: 07/29/2020 Page: 48 of 150
Legal Department that handles legal situations at [Kia].” But of course, no one
contends that Gogel, or anyone else for that matter, can actually prevent an
employee from filing an EEOC charge and subsequent lawsuit if the latter chooses
to do so. Nor does Kia disagree that once an EEOC charge is filed, the legal team
takes the lead in responding to that charge. Yet, that Gogel lacked the power to
prevent an employee from suing and that she did not handle the legal response
once an EEOC charge was actually filed does not mean that she was not expected
to try to handle matters in a way that would resolve the employee’s grievance short
of any such litigation, as all the witnesses testified. And soliciting an employee to
sue the company falls well short of endeavoring to resolve that employee’s
concerns short of litigation. Further, conceding that her job was “to problem-
solve,” Gogel offers no disagreement that encouraging Ledbetter to sue the
company would not have helped Kia solve any potential conflicts it might have had
with Ledbetter.
Gogel notes that the job description for Team Relations manager does not
include a requirement that the manager “prevent lawsuits.” She further averred in
her post-deposition declaration that she interpreted language in the job description
providing that the Team Manager should endeavor to “prevent unwelcomed
activity” as describing union activity, not the “EEO or legal activity.” It is true that
the job description, which is written at a high level of generality, does not expressly
48
Case: 16-16850 Date Filed: 07/29/2020 Page: 49 of 150
state that a Team Relations manager should try to prevent lawsuits. Yet, Gogel
acknowledges that it was her duty as Team Relations manager to help Kia resolve
any problems it might have with an employee. Not surprisingly then, 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. Nor, as this testimony indicates, does Kia consider a manager’s act of
clandestinely providing that employee with the name of a lawyer to use to sue the
company as conduct satisfying the manager’s responsibility to keep the appropriate
parties informed of the status of an employee’s complaint.22 Instead, as Tyler
testified, it was Kia’s expectation that a Team Relations manager was someone
who would interact with the employees in a manner that would avoid the latter
“going to third parties” and resorting to litigation. Likewise, as discussed
previously, Jackson and Bailey made clear that in soliciting Ledbetter to sue and in
encouraging that effort by providing Ledbetter with the name of the same attorney
22
As Jackson testified, Gogel was “paid to let me know [] if other people are interested
in filing lawsuits. That’s what her job is supposed to be doing. . . .She has an obligation to let me
know [] if she knows someone is going to file a lawsuit against our company. . . .She should let
me know what she knows.”
49
Case: 16-16850 Date Filed: 07/29/2020 Page: 50 of 150
with whom Gogel had decided to meet, Gogel’s conduct was inconsistent with her
job responsibilities.
Thus, the pertinent factual inquiry is whether recruiting an employee to sue
the company would have been consistent with the responsibilities entrusted to the
Team Relations manager by Kia. Gogel is notably silent on this point, never
affirmatively denying or otherwise presenting evidence contesting Kia’s position
that such conduct would fundamentally conflict with the expectations that it held
for a manager in that position. In short, the undisputed testimony indicates that the
Team Relations manager acts in contradiction of the responsibilities inherent in
that position if she solicits an employee to sue the company and provides the
employee with the name of an attorney to facilitate that endeavor.
Instead of tackling head-on Kia’s determination that Gogel’s conduct so
conflicted with the responsibilities of her job that it irrevocably undermined the
trust Kia believed it must have in the manager holding this tremendously
significant position, Gogel denies that she ever engaged in such conduct.23 Thus,
23
In support of this contention, Gogel avers that “I did not solicit others to further my
own agenda . . . . I did not encourage others to file a Charge against [Kia]. I did not encourage
others to sue [Kia].” In addition to her own denial of any effort to solicit, recruit, or encourage
Ledbetter to sue, Gogel offered a declaration by Ledbetter, who stated: “Neither [Gogel] nor
[Tyler] told me to file a Charge with the EEOC. I made this decision for myself as a professional
woman. [Gogel] did not solicit me to do anything against [Kia]. [Gogel] did not encourage me
nor solicit me to get an attorney and sue the company or file an EEOC charge . . . . I made the
decision to file an EEOC charge with my attorney, not because [Gogel] told me to. I made the
decision to retain an attorney as well. There was no ‘collusion.’” Ledbetter further denies that
50
Case: 16-16850 Date Filed: 07/29/2020 Page: 51 of 150
Gogel essentially argues that even if her recruitment of another employee to sue
the company would have rendered her ineffective in her position and would have
warranted Kia’s loss of confidence in her ability to continue to perform her highly
confidential and sensitive job duties, these reasons cannot justify her termination
because she never in fact solicited Ledbetter to sue the company. But this
argument misapprehends the focus of the inquiry in Title VII cases. As our
precedent makes clear, 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. As we have
stated before when a similar argument was made by an employee against whom an
adverse action was taken,
[t]he inquiry . . . centers on the employer’s beliefs, not the employee’s
beliefs and, to be blunt about it, not on reality as it exists outside of
the decision maker’s head. . . . The question is whether
[the] employers were dissatisfied with [the employee] for these or
other non-discriminatory reasons, even if mistakenly or unfairly so, or
instead merely used those [reasons] as cover for discriminating
against her. . . .
In analyzing issues like this one, “we must be careful not to
allow Title VII plaintiffs simply to litigate whether they are, in fact,
good employees.”
she ever told Williams that Gogel was the leader of any effort to file a charge with the EEOC or
that she, Gogel, and Williams were planning to sue the company and had the same attorney.
Ledbetter, however, does not address how she happened to retain the same attorney as did Gogel
and Tyler.
51
Case: 16-16850 Date Filed: 07/29/2020 Page: 52 of 150
Alvarez, 610 F.3d at 1266 (internal citations omitted) (quoting Rojas v. Florida,
285 F.3d 1339, 1342 (11th Cir. 2002)).
The relevant inquiry is therefore whether the employer in good faith
believed that the employee had engaged in the conduct that led the employer to
discipline the employee. See Elrod, 939 F.2d at 1470. Thus,
[w]hen an employer is told of improper conduct at its workplace, the
employer can lawfully ask: is the accusation true? When the resulting
employer’s investigation . . . produces contradictory accounts of
significant historical events, the employer can lawfully make a choice
between the conflicting versions—that is, to accept one as true and to
reject one as fictitious—at least, as long as the choice is an honest
choice.
Total Sys. Servs., 221 F.3d at 1176. To be clear,
[t]he role of this Court is to prevent unlawful [Title VII] practices, not
to act as a super personnel department that second-guesses employers’
business judgments. Our sole concern is whether unlawful
discriminatory [or retaliatory] animus motivates a challenged
employment decision. Whether [an employee’s conduct] was
insubordinate is not an issue for this Court to referee.
Wilson, 376 F.3d at 1092 (internal citations and quotation marks omitted). “An
employer ‘may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory [or retaliatory] reason.’” Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (emphasis omitted) (quoting Jones
v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1324 n.16 (11th Cir. 1998)); see
also Elrod, 939 F.2d at 1470 (“Federal courts ‘do not sit as a super-personnel
52
Case: 16-16850 Date Filed: 07/29/2020 Page: 53 of 150
department that reexamines an entity’s business decisions. No matter how
medieval a firm’s practices, no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers, [we] do[] not interfere. Rather, our
inquiry is limited to whether the employer gave an honest explanation of its
behavior.’” (quoting Mechnig, 864 F.2d at 1365)).
There is no evidence in this record to rebut Jackson’s repeated and insistent
testimony that he believed Gogel had recruited Ledbetter to sue the company. He
saw that Ledbetter’s EEOC charge had been faxed from the same law firm that
Gogel was using in pursuing her own recently filed EEOC charge. Given the large
number of lawyers available, Jackson was understandably skeptical that Ledbetter
would have randomly picked the same Atlanta law firm as did Gogel and Tyler
without some involvement from the latter. Indeed, Jackson immediately contacted
his Korean counterparts, including the president of Kia, to alert them to his
suspicion that Gogel was “recruiting” other employees to sue.
In fact, Gogel finally acknowledged during this litigation that she had
provided Ledbetter with the name of the attorney with whom Gogel stated she
planned to meet regarding her own action against Kia. Gogel argues that we
cannot consider this admission in assessing the genuineness of Jackson’s belief
that Gogel had so acted because Gogel had not revealed to Jackson, prior to his
decision to fire her, that she had, indeed, provided Ledbetter with the name of an
53
Case: 16-16850 Date Filed: 07/29/2020 Page: 54 of 150
attorney to represent her. For sure, Gogel never revealed this important fact to
Jackson when he called her in to determine whether she had any involvement in
Ledbetter’s decision to sue. Nor could Jackson know when he fired Gogel that she
would later admit to this conduct. This fact, however, is not helpful to Gogel.
What matters in this inquiry is what the employer in good faith believes the
employee to have done, not whether the employee actually engaged in the
particular conduct. See Elrod, 939 F.2d at 1470. Yet, the fact that Gogel has now
made a concession that tends to confirm the accuracy of Jackson’s beliefs is hardly
a fact that serves in any way to undermine the genuineness of those beliefs. And
the genuineness of those beliefs is further confirmed by additional information that
Jackson obtained after receiving Ledbetter’s EEOC charge.
Specifically, after Jackson had received Ledbetter’s EEOC charge, Williams
and Grimes, assistant managers of Team Relations, met with Jackson and informed
him of a large number of long, closed-door meetings between Gogel and Ledbetter
in the preceding weeks—meetings that seemed out of the ordinary not only to
Williams and Grimes, but also to Jackson.24 Even more significantly, Williams
24
Citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), Gogel argues
that we should disregard any testimony from Jackson, Williams, or Grimes in considering
whether to affirm the district court’s decision to grant summary judgment because these men
were arguably “interested witnesses.” We rejected a virtually identical argument in Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1205 n.14 (11th Cir. 2013). Other circuits have also rejected
any reading of Reeves as precluding summary judgment where the movant relies on testimony of
interested witnesses. See, e.g., LaFrenier v. Kinirey, 550 F.3d 166, 168 (1st Cir. 2008); Lauren
54
Case: 16-16850 Date Filed: 07/29/2020 Page: 55 of 150
reported that Ledbetter had confided in him that she, Gogel, and Tyler were
planning to sue the company, that they were going to use the same lawyer, and that
Gogel was the ringleader. As noted, Jackson subsequently met with Gogel who, in
denying any collusion with Ledbetter, also denied having had any significant
recent meetings with Ledbetter, contrary to the reports of Williams and Grimes.
Based on all of this information, Jackson concluded that Gogel had in fact
encouraged and recruited Ledbetter to sue Kia. 25 As a result, Jackson decided that
he had “no alternative but to discharge” Gogel, as he had lost both confidence in
Gogel’s loyalty and the trust that was necessary for her to function in her position
as Team Relations manager. Gogel has offered no evidence that would call into
question the genuineness of the beliefs that led Jackson to this conclusion.
W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271–72 (3d Cir. 2007); Stratienko v. Cordis
Corp., 429 F.3d 592, 597–98 (6th Cir. 2005); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
898 (5th Cir. 2002); Traylor v. Brown, 295 F.3d 783, 790–91 (7th Cir. 2002).
25
Our dissenting colleague, Judge Rosenbaum, argues that Jackson should have done a
more thorough investigation before reaching this conclusion. But as we have previously noted
when dealing with a similar objection to an employer’s personnel action based on the employer’s
good faith belief: “[I]n carrying out its business and in making business decisions (including
personnel decisions), the employer can lawfully act on a level of certainty that might not be
enough in a court of law. In the workaday world, not every personnel decision involving a false
statement (or a cover-up) has to be treated as something like a trial for perjury. Therefore, an
employer, in these situations is entitled to rely on its good faith belief about falsity, concealment,
and so forth . . . . ‘Pretext is not demonstrated by showing simply that the employer was
mistaken.’” Total Systems Servs., 221 F.3d at 1176. Here, Gogel has offered no evidence from
which one could reasonably infer that Jackson did not genuinely believe that Gogel had recruited
Ledbetter to sue the company and had provided her with the name of a lawyer to use in that
endeavor.
55
Case: 16-16850 Date Filed: 07/29/2020 Page: 56 of 150
In summary, 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. Kia held a good faith belief that Gogel had
abandoned her responsibility to try to resolve an employee’s dispute without
litigation when she instead actively solicited a complaining employee to sue the
company and provided the employee with the name of an attorney to use. Once
aware of Gogel’s conduct, Kia determined it could no longer keep her as its
Manager of Team Relations, the department to which unhappy employees were
sent to air their complaints. In other words, Kia could no longer trust Gogel to do
her job.
Stated another way, Kia did not fire Gogel because she opposed some of its
employment practices. Gogel had expressed her opposition to various employment
practices repeatedly throughout her tenure through internal complaints to
management, with no adverse action taken against her for that opposition. Rather,
Kia fired Gogel because, by recruiting Ledbetter to sue the company, Gogel chose
to act in a way that conflicted with the core objectives of her sensitive and highly
important position. Her actions having rendered her entirely ineffective as
manager of the Team Relations department, the manner of her oppositional
56
Case: 16-16850 Date Filed: 07/29/2020 Page: 57 of 150
conduct with respect to Ledbetter was necessarily unreasonable, and the conduct
was not protected under Title VII.
III. CONCLUSION
For all the above reasons, Gogel’s retaliation claim fails, and we affirm the
district court’s grant of summary judgment to Kia as to all claims.
AFFIRMED.
57
Case: 16-16850 Date Filed: 07/29/2020 Page: 58 of 150
WILLIAM PRYOR, Chief Judge, concurring:
I join the majority opinion in full. I write separately to respond to the
suggestion of my dissenting colleagues that a difference of opinion among judges
about whether to affirm a summary judgment reveals the presence of a jury
question that precludes summary judgment. Because 13 appellate judges are
“divided in their views” on whether the district court correctly granted summary
judgment in this employment-discrimination suit, Judge Martin’s dissent suggests
that the absence of a jury question is “improbable.” Martin Dissenting Op. at 71.
Of course, it should go without saying that counting judicial noses cannot tell us
whether a genuine dispute of material fact exists. See Fed. R. Civ. P. 56(a). But if
nose counting is relevant, the dissenters fail to mention that nine of the 14 judges
to consider the issue—including the district judge who granted summary
judgment—concluded there was no jury question. Only five think otherwise. So
instead of making the absence of a jury question “improbable,” Martin Dissenting
Op. at 71 (emphasis added), judicial nose counting suggests the opposite. See
Probable, Webster’s New International Dictionary (2d ed. 1959) (“Having more
evidence for than against.”). And more importantly, so does legal analysis. As the
majority opinion explains, faithful application of our precedent leaves no doubt
that the district court correctly granted summary judgment for the employer.
58
Case: 16-16850 Date Filed: 07/29/2020 Page: 59 of 150
JORDAN, Circuit Judge, concurring in the judgment:
I agree with much of what Judges Martin and Rosenbaum have written in their
dissents. The majority, for example, does not take all of the facts in the light most
favorable to Ms. Gogel, fails to explain where in the McDonnell Douglas framework
it is conducting its protected conduct analysis, and relies too heavily on cases that
arose in procedurally different postures. Despite these concerns with aspects of the
majority opinion, I concur in the judgment.
Ms. Gogel, who was the manager of team relations at Kia, has always denied
encouraging or soliciting other employees to sue the company. See, e.g., D.E. 101-
1 at 14–15 (Ms. Gogel’s declaration). In her deposition, Ms. Gogel testified that
when Mr. Jackson accused her of “colluding” with Ms. Ledbetter against Kia, she
denied the accusation and provided proof that her meetings with Ms. Ledbetter were
for legitimate work-related matters. See D.E. 117 at 66. For her part, Ms. Ledbetter
similarly denied that Ms. Gogel encouraged her to file an EEOC claim against Kia.
See D.E. 101-2 at 3–4 (Ms. Ledbetter’s declaration).
Because we are at the summary judgment stage, and must consider the
evidence in the light most favorable to Ms. Gogel, we have to assume that she did
not encourage or solicit others to take legal action against Kia. As a result, there is
no need to consider whether, as an abstract matter, any actual solicitation by Ms.
Gogel would constitute protected conduct under Title VII.
59
Case: 16-16850 Date Filed: 07/29/2020 Page: 60 of 150
Taking her version of events as true, Ms. Gogel established a prima facie case
on her opposition and retaliation claims. But Kia presented a non-discriminatory
reason for its termination decision—that it believed that Ms. Gogel recruited,
encouraged, or solicited Ms. Ledbetter (and maybe Mr. Tyler) to sue the company.
On this record, I do not believe Ms. Gogel created a jury issue as to pretext under
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143–46 (2000).
Kia had evidence that Ms. Gogel, Ms. Ledbetter, and Mr. Tyler were being
represented by the same law firm. It also had the statements of another managerial
employee about what Ms. Gogel was supposedly doing. Mr. Williams, an assistant
manager working under Ms. Gogel, informed Kia that Ms. Ledbetter had told him
(a) that she, Mr. Tyler, and Ms. Gogel were planning to sue the company using the
same law firm; (b) that the three of them were “talking together and working
together;” and (c) that Ms. Gogel was the ringleader. See D.E. 123 at 52, 79.
Ms. Gogel denied having significant interactions with Ms. Ledbetter when
questioned, but given the circumstances Kia was not required to accept her denials.
We have long said that “[t]he inquiry into pretext centers upon the employer’s
beliefs, and not the employee’s own perceptions of [her] performance.” Holifield v.
Reno, 115 F.3d 1555, 1565 (11th Cir. 1997). Indeed, we have held that where an
employer relies on a report of an employee’s alleged wrongdoing, the question is not
whether the report is accurate, but rather whether the employer “reasonably
60
Case: 16-16850 Date Filed: 07/29/2020 Page: 61 of 150
believed” that it was. See Hawkins v. Ceco Corp., 883 F.2d 977, 980 n.2 (11th Cir.
1989). Based on the information it had, Kia reasonably believed that Ms. Gogel had
solicited other employees to sue the company, and that this conduct by a managerial
employee was an unreasonable way of demonstrating her opposition. See generally
Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989)
(“some otherwise protected conduct may be so disruptive or inappropriate as to fall
outside Title VII’s protection”).
With respect to retaliation, sometimes temporal proximity between the
protected activity and adverse action is enough to take a case to the jury. But even
in cases where the plaintiff has established temporal proximity, the employer can
rebut inferences of improper motive by articulating non-discriminatory reasons for
the adverse action. Given cases like Holifield and Hawkins, I think Kia has done
that here. See Walden v. Centers for Disease Control and Prevention, 669 F.3d
1277, 1290 (11th Cir. 2012) (holding, in a Title VII case, that a temporal proximity
of three weeks was not enough to overcome evidence showing that the employee
was removed for a legitimate reason). Cf. Wascura v. City of S. Miami, 257 F.3d
1238, 1247 (11th Cir. 2001) (holding, in an ADA case, that where ample legitimate
reasons supported a termination decision, temporal proximity alone was insufficient
to meet the plaintiff’s burden of showing that the employer’s articulated reasons for
termination was pretextual).
61
Case: 16-16850 Date Filed: 07/29/2020 Page: 62 of 150
I recognize that an employee can sometimes create an issue of fact as to
pretext by showing that the employer’s purported non-discriminatory reason is
simply untrue. See Reeves, 530 U.S. at 143–46. In my view, however, Kia
reasonably believed that Ms. Gogel had engaged in soliciting lawsuits by other
employees based on Mr. Williams’ statements about what Ms. Ledbetter had said
and the evidence that Ms. Gogel, Ms. Ledbetter, and Mr. Tyler were being
represented by the same law firm. Accepting as true her denials of improper
conduct, Ms. Gogel has not presented sufficient evidence to permit a jury to find that
Kia’s proffered reason for her termination is “unworthy of credence.” Id. at 143(internal citation and quotation marks omitted).
62
Case: 16-16850 Date Filed: 07/29/2020 Page: 63 of 150
WILSON, Circuit Judge, concurring in part and dissenting in part:
Had Andrea Gogel not filed her own discrimination claim, I would join the
majority’s opinion in full. Indeed, I concur with the majority’s view that Title VII
does not protect an employee’s opposition conduct if the conduct so interferes with
the performance of her job duties that it renders her ineffective for the position for
which she was employed. Kia says it fired Gogel because she encouraged other
employees, including Diana Ledbetter, to file a charge of discrimination against the
company, which was inconsistent with her responsibility as a Human Resource
employee to protect the company from liability. Title VII’s opposition clause does
not protect such conduct. And if that were her only claim, Gogel would rightfully
lose at summary judgment.
But that is not her only claim; she also brings a claim under Title VII’s
participation clause. And there is more than enough circumstantial evidence in this
record that a jury could reasonably rely upon to conclude that Gogel was fired in
retaliation for filing her own charge of discrimination, which is protected activity
under Title VII’s participation clause, separate and apart from her conduct under
the opposition clause. Summary judgment on that claim should have been denied.
As Gogel stated in her Amended Complaint, “[Kia’s] retaliation against
[her] was on account of her participation in the [Equal Employment Opportunity
Commission (EEOC)] charge filing process and because of her opposition to
63
Case: 16-16850 Date Filed: 07/29/2020 Page: 64 of 150
discrimination . . . .” She further alleged that, “[b]ut for her act of filing an EEOC
charge, she would not have been terminated.”
As we have stated, Title VII prohibits an employer from retaliating against
an employee “because the employee has opposed any unlawful employment
practice” (the opposition clause), or “because of participation in a Title VII
investigation or hearing” (the participation clause).” Furcron v. Mail Ctrs. Plus,
LLC, 843 F.3d 1295, 1310 (11th Cir. 2016) (alterations accepted); accord 42
U.S.C. § 2000e-3(a). Indeed, § 2000e-3(a) explicitly protects someone, such as
Gogel, who “has made a charge.” Consequently, when Gogel filed her charge of
discrimination with the EEOC on November 10, 2010, she engaged in protected
conduct under the participation clause, which provides near limitless protection
against retaliatory acts. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353
(11th Cir. 1999) (holding that § 2000e-3(a)’s “participated in any manner” clause
includes and protects an employee’s participation in an employer’s post-charge
internal investigation, a form of participation more indirect than Gogel’s).
This is the relevant timeline for Gogel’s participation-clause claim: Gogel
filed her charge of discrimination with the EEOC alleging sex- and national-origin
discrimination on November 10, 2010. Kia received notice of it on November 22,
2010. On December 3, 2010, Gogel was placed on administrative leave pending
her signature on an “acknowledgement” document created by Kia, which she
64
Case: 16-16850 Date Filed: 07/29/2020 Page: 65 of 150
signed on December 6, 2010. Curiously, Kia gave her a $12,000 bonus check on
December 22, 2010, and, according to Gogel, told her “she was doing a good job,”
which a factfinder could interpret various ways. But then she was admonished
about issues related to Diana Ledbetter (which the majority details), and she
received her termination letter on January 21, 2011. On February 8, 2011, she
filed the second charge with the EEOC based on retaliation.
Absent direct evidence of discrimination, we analyze claims for
discrimination under the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and subsequently modified in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). See also Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1331–32 (11th Cir. 1998). “Under this framework, a
plaintiff alleging retaliation must first establish a prima facie case by showing that:
(1) [s]he engaged in a statutorily protected activity; (2) [s]he suffered an adverse
employment action; and (3) [s]he established a causal link between the protected
activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th
Cir. 2009). “Once a plaintiff establishes a prima facie case of retaliation, the
burden of production shifts to the defendant to rebut the presumption by
articulating a legitimate, non-discriminatory reason for the adverse employment
action.” Id. at 1308. “After the defendant makes this showing, the plaintiff has a
full and fair opportunity to demonstrate that the defendant’s proffered reason was
65
Case: 16-16850 Date Filed: 07/29/2020 Page: 66 of 150
merely a pretext to mask discriminatory actions.” Id. As we have held,
“[d]emonstrating a prima facie case is not onerous; it requires only that the plaintiff
establish facts adequate to permit an inference of discrimination [or retaliation].”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam); see also
Burdine, 450 U.S. at 253–54.
Kia concedes that Gogel can satisfy the elements of a prima facie case of
retaliation for her termination. In its reply in support of its motion for summary
judgment, Kia stated that it “does not contest that [Gogel’s] filing of her personal
EEOC charge on November 3, 2010 was protected activity, and for the purpose of
summary judgment, assumes that [she] has made out the minimal requirements of a
prima face case.”
In any event, a prima facie case is established here: (1) Gogel filed her
charge; (2) she was fired; and (3) these events were separated by two months. See
Bryant, 575 F.3d at 1307–08. “The burden of causation can be met by showing
close temporal proximity between the statutorily protected activity and the adverse
employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007) (per curiam). We construe the causal-link element broadly; “a plaintiff
merely has to prove that the protected activity and the negative employment action
are not completely unrelated.” Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460
(11th Cir. 1998). In Olmstead, we determined that the plaintiff’s termination was
66
Case: 16-16850 Date Filed: 07/29/2020 Page: 67 of 150
casually related to his complaints of racial discrimination and was appropriately
submitted to the jury, even though the period between his complaint and
termination was about five- to six-months apart. Id. at 1459–61. In Gogel’s case,
the filing of the charge and the date of termination were only two months apart.
The burden then shifts to Kia to articulate a legitimate reason for Gogel’s
termination. See Bryant, 575 F.3d at 1308. Kia says Gogel was terminated
because the company lost confidence in her ability to perform her job duties after
an investigation showed that she had solicited Ledbetter to file a charge against
Kia, which was in violation of the agreement they made her sign on December 6,
2010. That is a legitimate reason. Kia has thus discharged its burden of
production, and the burden shifts back to Gogel to show that this assertion is
merely a pretext for discrimination and retaliation. See id.To survive summary judgment Gogel must point to sufficient evidence to
create a genuine issue of material fact regarding whether the reason Kia gives for
her termination is merely a pretext for retaliation and discrimination. See id. Her
evidence must reveal “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [Kia’s] proffered legitimate reasons for its
action that a reasonable factfinder could find them unworthy of credence.” Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). The reason for this
framework is obvious—what sophisticated employer, after 54 years of Title VII
67
Case: 16-16850 Date Filed: 07/29/2020 Page: 68 of 150
jurisprudence, would state in a termination letter that the employee is fired for
bringing a discrimination complaint against the company? So, Gogel can create an
issue of fact at the pretext stage by (1) presenting evidence that Kia’s proffered
reason is not worthy of belief; or (2) presenting evidence that retaliation was, in
fact, Kia’s real reason. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 147 (2000). Evidence establishing the prima facie case and any inferences
drawn therefrom may also be considered when determining whether pretext has
been shown. Id. at 143; see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993).
Gogel’s evidence in support of pretext is more than sufficient to defeat
summary judgment. A Title VII plaintiff can meet the pretext burden by showing
temporal proximity between her protected conduct and the adverse employment
action. Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.
2000). 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. In Thomas, we concluded that a three- to four-month period
between when an employee filed a sexual-harassment complaint and when she was
fired was not enough, on its own, to establish a causal connection. 506 F.3d at
1364. Here, the temporal proximity is much closer, as Gogel was terminated just
68
Case: 16-16850 Date Filed: 07/29/2020 Page: 69 of 150
two months after the date Kia received notice of her charge. That is surely close
enough that a factfinder could infer retaliation.
And unlike the plaintiff in Thomas, Gogel points to additional evidence
tending to show causation. Before the district court, Gogel argued that certain “me
too” evidence demonstrated that Kia retaliated against other employees who made
internal complaints and filed EEOC charges. Gogel pointed to evidence regarding
two incidents related to her case. The first was that Robert Tyler, another Human
Resources employee who lodged an internal discrimination complaint and filed an
EEOC charge, testified that he was terminated on January 6, 2011, shortly before
Gogel was terminated. And the second was that Ledbetter attested that Kia
coerced her to drop her EEOC charge. We have said before that “me too” evidence
can be used “to prove the intent of [an employer] to discriminate and retaliate.”
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008).
Moreover, Gogel testified at her deposition that she did not encourage,
solicit, or coerce Ledbetter to file a charge of discrimination. And Ledbetter
attested that she decided on her own to file her EEOC charge, and that Gogel “did
not encourage [her] nor solicit [her] to get an attorney and sue the company or file
an EEOC Charge.” Ledbetter also attested that there was no collusion. More
specifically, she declared that she “never told Arthur Williams that [Gogel] was the
‘leader’ of [her] and [Tyler] in filing a Charge with the EEOC” or that “all three of
69
Case: 16-16850 Date Filed: 07/29/2020 Page: 70 of 150
[them] were going to sue [Kia] and had the same attorney.” While this testimony
matters little in the opposition-clause context, it matters in the participation-clause
context. If true, it could support that Kia’s belief that such conduct occurred was
unreasonable. In any event, Kia is entitled to impeach Gogel’s credibility about
these crucial facts on cross-examination at a trial. Credibility evaluations are
within the province of the jury, not this court.
Viewing the evidence in this record in the light most favorable to Gogel,
which we are obligated to do, there is a genuine issue of fact about whether Kia
terminated Gogel because she filed a charge of discrimination against the
company. Unfortunately, the majority does not view the evidence in the light most
favorable to Gogel. Instead, it adopts the role of factfinder, ignores Gogel’s
evidence, and tips the scales in Kia’s favor.
Simply put, a reasonable jury could conclude that Kia’s reason for
terminating Gogel—that she counseled Diana Ledbetter to file an EEOC charge—
was pretextual. Although her conduct may not be protected under Title VII’s
opposition clause, the charge of discrimination that she filed on her own behalf
constitutes protected conduct under Title VII’s participation clause. The case
should have gone to the jury on that basis.
70
Case: 16-16850 Date Filed: 07/29/2020 Page: 71 of 150
MARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR,
Circuit Judges, dissenting:
Andrea Gogel was fired after she challenged gender discrimination at Kia
Motors Manufacturing, Georgia (“Kia”). Instead of allowing a jury to decide the
facts in dispute about Kia’s true motivations for firing Ms. Gogel, this Court has
now dedicated nearly four years and the extensive attention of 13 judges, divided
in their views, to reach the improbable conclusion that there is no such dispute.
The result is a majority opinion that incorrectly applies the law governing
opposition conduct protected by Title VII; glosses over disputes of fact about Ms.
Gogel’s core job responsibilities; and fails to consider evidence suggesting that the
reasons Kia gave for Ms. Gogel’s dismissal were a pretext for unlawful retaliation.
The six separate opinions that make up this en banc ruling on Ms. Gogel’s case,
written by as many judges, paint a rich picture of the many triable issues of fact
about whether Kia fired her because she engaged in activities protected by Title
VII. I would reverse the grant of summary judgment to Kia on Ms. Gogel’s claim
for unlawful retaliation. I dissent from the majority’s judgment in favor of Kia
here.
I.
I begin by setting forth the standard for applying the burden-shifting
framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
71
Case: 16-16850 Date Filed: 07/29/2020 Page: 72 of 150
Ct. 1817 (1973). McDonnell Douglas imposes a three-step framework for
evaluating workplace discrimination claims based on circumstantial evidence.
First, the employee must show a prima facie case of discrimination. Then, the
employer must respond by articulating a legitimate, nondiscriminatory reason for
its adverse employment action. Finally, the employee must show that the reason
given by the employer was “mere pretext.” Quigg v. Thomas Cnty. Sch. Dist., 814
F.3d 1227, 1237 (11th Cir. 2016). This Court has relied on this familiar and well-
worn analytic tool for well over four decades. Its purpose is to “progressively . . .
sharpen the inquiry into the elusive factual question of intentional discrimination”
and thereby “help[] . . . determine whether the litigants have created an issue of
fact to be decided by the jury.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 n.8, 101 S. Ct. 1089, 1094 n.8 (1981).
The central question of Ms. Gogel’s case is the nature of her opposition
conduct and whether it was protected by Title VII. In most circumstances, firing
an employee for assisting a coworker with filing an Equal Employment
Opportunity Commission (“EEOC”) complaint—the primary basis of Ms. Gogel’s
dismissal—amounts to retaliation for protected opposition conduct. See Hobgood
v. Ill. Gaming Bd., 731 F.3d 635, 642–43 (7th Cir. 2013); see also Rosser v.
Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221, 223 (5th Cir.
72
Case: 16-16850 Date Filed: 07/29/2020 Page: 73 of 150
1980). 1 But of course the protections of Title VII’s opposition clause are not
absolute. To qualify for protection, “the manner in which an employee expresses
her opposition to an allegedly discriminatory employment practice must be
reasonable.” Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397, 401 (11th Cir.
1989) (per curiam). Our precedent has recognized two principal ways in which an
employee’s opposition conduct may be unreasonable and thus fall outside of the
protection of the statute: (1) if that conduct is highly disruptive, see id. at 400-01,
or (2) if that conduct “so interferes with the performance of [the employee’s] job
that it renders [her] ineffective in the position for which [s]he was employed,”
Rosser, 616 F.2d at 223. Whether opposition activity was so unreasonable as to
fall outside the protection of the statute is a “case by case” determination made by
“balancing the purpose of the statute and the need to protect individuals asserting
their rights thereunder against an employer’s legitimate demands for loyalty,
cooperation and a generally productive work environment.” Rollins, 868 F.2d at
401.
Our precedent is clear that the question of whether opposition conduct falls
under the protections of Title VII should, at the summary judgment stage, be
evaluated within the three-step McDonnell Douglas burden-shifting framework,
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981. Id. at 1209.
73
Case: 16-16850 Date Filed: 07/29/2020 Page: 74 of 150
rather than under the “clearly erroneous” standard applied following an
employment discrimination trial. Compare Payne v. McLemore’s Wholesale &
Retail Stores, 654 F.2d 1130, 1144 (5th Cir. Unit A Sept. 1981) (applying
McDonnell Douglas at summary judgment) with Jones v. Flagship Int’l, 793 F.2d
714 (5th Cir. 1986) (explaining that district court findings would not be reversed
unless they were clearly erroneous).
A. The majority improperly relies on precedent governing appellate
review after trial.
The three McDonnell Douglas steps are designed to flush out proof of an
employer’s “single, true reason for an adverse action.” Quigg, 814 F.3d at 1237
(quotation marks omitted). However, the majority opinion misapplies the
McDonnell Douglas burden shifting process because it relies on our Circuit
precedent governing the review of trials conducted in employment cases. We
should instead abide by the precedent of our Circuit that governs how employment
cases are decided at the summary judgment stage.
In today’s ruling against Ms. Gogel, the majority analogizes her case to
cases in which the suing employee received a trial: Jones v. Flagship International,
793 F.2d 714, and Hamm v. Members of the Board of Regents, 708 F.2d 647 (11th
Cir. 1983). See Maj. Op. at 30–33. Of course, a different standard of review
applies to appeals from decisions made after trial. And Ms. Gogel never got a trial.
74
Case: 16-16850 Date Filed: 07/29/2020 Page: 75 of 150
The majority says that Jones is similar to Ms. Gogel’s case and recites the
Fifth Circuit’s conclusion that “given Jones’s particular job responsibilities, her
solicitation of others to sue the company was not protected conduct for purposes of
a retaliation claim.” Maj. Op. at 33. However, the majority opinion relies on
Jones even though the Fifth Circuit arrived at this conclusion based on the record
from a three-day trial, on an appeal of the District Court’s entry of a judgment after
that trial. Jones, 793 F.2d at 718. Beyond that, in Jones, the Fifth Circuit was
reviewing a District Court finding (again, after trial) that there was “not the
slightest hint that race was even a factor in any of Flagship’s employment
decisions regarding Jones.” Id. And the Fifth Circuit plainly stated that it would
not reverse the District Court’s fact finding on this point unless it was “clearly
erroneous.” Id. Nothing in the majority’s opinion here, or anything else I am
aware of, suggests that “clearly erroneous” is the proper standard for reviewing the
District Court’s grant of summary judgment to Kia here. Rather, we review the
grant of summary judgment de novo. See Raney v. Vinson Guard Serv., Inc., 120
F.3d 1192, 1196 (11th Cir. 1997). Ms. Gogel never got a trial, and no court or jury
has ever decided the facts of her dispute with Kia. The majority was mistaken
when it relied on Jones’s “clearly erroneous” review of a District Court’s fact
finding in deciding Ms. Gogel’s case.
75
Case: 16-16850 Date Filed: 07/29/2020 Page: 76 of 150
The majority makes the same mistake when it points to Hamm. In doing so
it relies on this court’s affirmance of a fact-based ruling, made after a trial, to
support its conclusion that Ms. Gogel is not entitled to a trial here. Phyllis Hamm,
like Benita Jones in her Fifth Circuit case, appealed (among other things) the
District Court’s dismissal of her claims against her employer after the close of her
case at trial and pursuant to Federal Rule of Civil Procedure 41(b). Hamm, 708
F.2d at 649. The Hamm panel reviewed the District Court’s findings of fact in
support of this dismissal subject to “the clearly erroneous standard of review.” Id.
at 650. Here again, the majority opinion relies on a decision applying a standard of
review that is not the proper one for evaluating Ms. Gogel’s case.
B. When the majority does rely on this court’s precedent governing the
application of the McDonnell Douglas framework at the summary
judgment stage, it does not faithfully apply that precedent.
And when the majority did look to our Circuit precedent governing summary
judgment rulings in employment cases, it mistakenly applies that precedent as well.
When making her prima facie case at the first step in the McDonnell Douglas
framework, the employee is not charged with showing that her opposition conduct
was reasonable. See Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716
(11th Cir. 2002) (holding that, in order to show a causal connection between
protected conduct and retaliation, a plaintiff need only show “that the decision-
makers were aware of the protected conduct, and that the protected activity and the
76
Case: 16-16850 Date Filed: 07/29/2020 Page: 77 of 150
adverse actions were not wholly unrelated.”). Once the employee successfully
makes her prima facie showing, it falls to the employer to explain its actions. See
Raney, 120 F.3d at 1196. The employer can meet its burden of showing a
legitimate, nondiscriminatory reason for the adverse employment action by
producing evidence that the employee’s conduct fell outside the protection of Title
VII. See Rollins, 868 F.2d at 401. Then, the plaintiff may, in turn, rebut this
evidence by showing that the employer’s reason was merely a pretext for unlawful
retaliation. See Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1036
(5th Cir. 1980).
When discussing Ms. Gogel’s retaliation claim based on her assistance to
Ms. Ledbetter, the majority does not clearly or consistently apply the McDonnell
Douglas framework. Instead, the majority opinion winds its way through the
framework without referencing which step of the framework it is analyzing. But a
careful application of the framework is essential to determining whether there is a
dispute of fact at the summary judgment stage. Because the majority opinion lacks
clarity in its application of the framework, I fear it will result in mistakes in future
employment discrimination decisions.
As one example, the majority simply accepts Kia’s invocation of the
importance of “loyalty” as the last word in finding her conduct unreasonable as a
matter of law. Maj. Op. at 55–56. In doing so, it overlooks the fact that Ms.
77
Case: 16-16850 Date Filed: 07/29/2020 Page: 78 of 150
Gogel’s conduct, the nature of her job, and Kia’s motivations for terminating her
were all in dispute. These are precisely the kinds of factual questions that the
McDonnell Douglas framework was designed to resolve, because they go directly
to whether Kia’s reasons for terminating Ms. Gogel were pretextual. The Supreme
Court has explained that McDonnel Douglas serves “simultaneously to meet the
plaintiff’s prima facie case by presenting a legitimate reason for the action and to
frame the factual issue with sufficient clarity so that the plaintiff will have a full
and fair opportunity to demonstrate pretext.” Burdine, 450 U.S. at 255–56, 101 S.
Ct. at 1095. The majority opinion ignores these factual disputes. As a result, Ms.
Gogel never got her “full and fair opportunity to demonstrate pretext.” Id.II.
In this section, I will properly apply the McDonnell Douglas framework,
showing how it compels the holding that Ms. Gogel came forward with sufficient
evidence to create a triable issue of fact about Kia’s motivations for firing her.
This record demonstrates that Ms. Gogel successfully made a prima facie showing
of unlawful retaliation that Kia rebutted by coming forward with a permissible,
non-retaliatory reason for her dismissal. My view of the record also shows that at
the third stage of the McDonnell Douglas analysis, Ms. Gogel produced sufficient
evidence that Kia’s reason for her dismissal was pretextual, such that it is error for
the majority to grant summary judgment to Kia here.
78
Case: 16-16850 Date Filed: 07/29/2020 Page: 79 of 150
A. Ms. Gogel made a prima facie showing of retaliation, which Kia
successfully rebutted.
Ms. Gogel pointed to sufficient record evidence to support a prima facie case
of retaliation against her. We know that the burden of making a prima facie case
“is not onerous.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1094. Rather, at the
prima facie stage a plaintiff need only “offer evidence that creates a valid inference
that her employer’s conduct was in fact illegal[].” Lewis v. City of Union City,
918 F.3d 1213, 1222 n.8 (11th Cir. 2019) (en banc).
No one disputes that one reason Kia gave for firing Ms. Gogel was that she
assisted Ms. Ledbetter in filing an EEOC complaint.2 Kia stated as much in its
termination letter to Ms. Gogel, which said she was being fired in part because she
“encouraged or even solicited the filing of [an EEOC charge].” And Title VII
prohibits subjecting an employee to an adverse employment action “because [s]he
has opposed any practice made an unlawful employment practice by this
subchapter, or because [s]he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this subchapter.”
2
While Ms. Gogel disputes that she actually encouraged Ms. Ledbetter to seek outside
counsel or file a discrimination complaint, the issue is not whether she in fact engaged in this
conduct but whether Kia “in good faith believed” in the factual basis of its adverse employment
action. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quotation marks
omitted); see also Heffernan v. City of Paterson, N.J., 578 U.S. ___, 136 S. Ct. 1412, 1418
(2016) (holding that an employee could challenge an employer’s retaliation for protected First
Amendment conduct even if that retaliation was based on the employer’s factual mistake about
the employee’s behavior).
79
Case: 16-16850 Date Filed: 07/29/2020 Page: 80 of 150
42 U.S.C. § 2000e-3(a). Assisting fellow employees in filing EEOC charges is
squarely protected activity. See EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174
(11th Cir. 2000). 3 While Kia argues its true concern was that the assistance Ms.
Gogel provided Ms. Ledbetter made Ms. Gogel ineffective in her job, that is a
question for the second stage of the McDonnell Douglas framework. At the prima
facie stage, Ms. Gogel’s termination letter is enough to show a causal connection
between protected conduct (assisting Ms. Ledbetter) and adverse employment
consequences (Ms. Gogel’s discharge). See Shannon, 292 F.3d at 716.
Kia, in turn, met its burden of rebutting Ms. Gogel’s prima facie case by
producing evidence that it suspended and fired her for a legitimate,
nondiscriminatory reason. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1265 (11th Cir. 2010). The employer’s burden, at this stage, is only “one
of production—not persuasion” and it “need not persuade the court that it
was actually motivated by the proffered reason.” Kidd v. Mando Am. Corp., 731
F.3d 1196, 1205 (11th Cir. 2013) (alteration adopted) (quotation marks omitted).
3
The majority acknowledges that a firing on these grounds would normally give rise to a
prima facie case of unlawful retaliation. Indeed, Kia conceded at oral argument that Title VII
generally prohibits firing an employee, other than a human resources employee, who engaged in
this conduct. Oral Argument at 32:57–33:38. But the majority distinguishes Ms. Gogel’s case
based on Kia’s asserted concern that her conduct rendered her ineffective in her role as Team
Relations manager. This fact would be appropriate to rely upon if it had ever been found by the
trier of fact, like in Hamm. Here, though, there remain significant factual disputes over both the
propriety of Ms. Gogel’s helping her co-worker with her EEOC charge, as well as Gogel’s
effectiveness as a manager.
80
Case: 16-16850 Date Filed: 07/29/2020 Page: 81 of 150
And the majority is correct in saying that, in some instances, an employee’s
opposition conduct may “‘so interfere[] with the performance’ of her job duties
‘that it renders her ineffective in the position for which she was employed’” such
that it is therefore unreasonable and not protected by Title VII. Maj. Op. at 29
(alterations adopted) (quoting Rosser, 616 F.2d at 223).
Here, Kia recognizes that the reason it fired Ms. Gogel was retaliation for
protected conduct, but it says that because the conduct conflicted with Ms. Gogel’s
core job responsibilities it was therefore unreasonable. The record before us
supports a holding that Kia met its burden to put forward a legitimate business
reason for firing Ms. Gogel. Deposition testimony and Ms. Gogel’s termination
letter support Kia’s claim it terminated Gogel because management believed her to
be actively recruiting other employees to file lawsuits against Kia. Kia also
produced evidence that it believed this conduct to be in direct conflict with Ms.
Gogel’s job responsibilities. These responsibilities, according to Kia, included
working to ensure that team members did not involve third parties—by way of
litigation, government organizations, and labor unions—in the resolution of
workplace disputes. I think this was sufficient for Kia to meet its burden of
showing a legitimate, non-retaliatory reason for dismissing Ms. Gogel. But I also
believe there remain factual disputes about whether this reason was pretextual.
81
Case: 16-16850 Date Filed: 07/29/2020 Page: 82 of 150
B. Ms. Gogel presented sufficient evidence that Kia’s reasons for
dismissing her were pretextual.
Having addressed the first two steps of the McDonnell Douglas framework,
I will now outline the factual disputes raised by Ms. Gogel in her assertion that
Kia’s reasons for her firing were a pretext for its discrimination against her. First,
there are factual disputes over the nature of her core job responsibilities and
whether her conduct rendered her unable to properly perform them. These disputes
go to whether Ms. Gogel’s activities were “reasonable under the circumstances and
were warranted by [her] employer’s conduct.” Payne, 654 F.2d at 1145. Second,
there is a dispute over whether Ms. Gogel’s inability to perform her core job
responsibilities was the actual reason for her dismissal. This goes to whether the
reason given for her dismissal was a pretext for unlawful retaliation. Lewis, 918
F.3d at 1221. My review shows that Ms. Gogel produced sufficient evidence to
create a triable issue of fact on both of these questions at the final stage of
McDonnell Douglas.
1. Ms. Gogel’s responsibilities as Team Relations manager
First, Ms. Gogel pointed to sufficient record evidence to raise an issue of
fact about whether her job involved the resolution of Title VII disputes. The
majority opinion fails to recognize the factual disputes over Ms. Gogel’s duties as
Team Relations manager, and improperly accepts Kia’s version instead. See Evans
v. Stephens, 407 F. 3d 1272, 1278 (11th Cir. 2005) (en banc) (holding that “when
82
Case: 16-16850 Date Filed: 07/29/2020 Page: 83 of 150
conflicts arise between the facts evidenced by the parties, we credit the nonmoving
party’s version” (emphasis omitted)). It is not for judges to decide whether Ms.
Gogel’s conduct was reasonable. Rather, this is a classic fact question reserved for
a jury to decide. 4
Kia hired Ms. Gogel as Team Relations manager in March 2008. The stated
purpose of the Team Relations department was to create standards and policies to
support “an environment of positive team relations,” develop standards around
behavior, help “set a positive culture,” and help employees “understand what the
rules and guidelines of the workplace were.” Ms. Gogel’s job responsibilities
included “promot[ing] high team member morale and prevent[ing] unwelcomed
activity within [Kia].”
But there is conflicting evidence over what, precisely, “prevent[ing]
unwelcomed activity” entailed. Kia says the primary role of the Team Relations
department was to resolve employment disputes before employees resorted to help
from an outside party, such as an attorney, labor union, or the EEOC. If true, this
would support the conclusion of the majority opinion that actively recruiting staff
to participate in a discrimination lawsuit was directly contrary to Ms. Gogel’s
primary role. But nothing in Ms. Gogel’s job description says she was tasked with
4
The Civil Rights Act of 1991 entitles a Title VII plaintiff seeking the award of
compensatory or punitive damages to a jury trial. Civil Rights Act of 1991 § 102, 42 U.S.C.
§ 1981a(c).
83
Case: 16-16850 Date Filed: 07/29/2020 Page: 84 of 150
resolving discrimination complaints internally. Beyond that, the parties offer
conflicting testimony on this question. Ms. Gogel testified that she understood
“unwelcome activity” to mean “union organizing activity,” as opposed to EEOC
charges or lawsuits. On the other hand, Arthur Williams, assistant manager of the
Team Relations department, testified that the role of the Team Relations
department was to “help team members stay out of legal situations and try to
resolve problems prior to them getting that bad.” Latesa Bailey, Kia’s Rule
30(b)(6) witness, testified that one of Ms. Gogel’s roles was to avoid employment
conflicts before employees resorted to outside parties. And Robert Tyler, the
Human Resources Manager at the Georgia plant, said ensuring that team members
did not turn to third parties to resolve disputes was only “one of the
responsibilities” of the Team Relations department.
As this review of the record makes clear, the only evidence about whether
Ms. Gogel’s job required her to prevent employees from resorting to litigation to
resolve discrimination claims comes from contradicted deposition testimony.
Thus, resolving this question requires weighing witness credibility. And again, it
is not the role of judges to pick between conflicting factual accounts at the
summary judgment stage of a case. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513 (1986) (stating that resolving contradictory
testimony requires making credibility determination and weighing evidence, which
84
Case: 16-16850 Date Filed: 07/29/2020 Page: 85 of 150
are improper at summary judgment because they “are jury functions, not those of a
judge”); Evans, 407 F. 3d at 1277. Notably, this factual dispute goes to the heart
of Ms. Gogel’s retaliation claim. If preventing discrimination litigation was not
part of Ms. Gogel’s job, or was only incidental to it, then Kia cannot credibly claim
the assistance she provided Ms. Ledbetter rendered Gogel so ineffective in her job
that she was due to be fired. Indeed, if a factfinder decided that preventing
discrimination litigation was not a part of Ms. Gogel’s job, this would strongly
support the further finding that Kia’s dismissal of Ms. Gogel was prohibited
retaliation. Rather than address this dispute, however, the majority improperly
credits the deposition testimony presented by Kia over the contradictory testimony
offered by Ms. Gogel. Maj. Op at 44–47; see also id. at 50.
The majority leans heavily on Kia’s claim that Ms. Gogel’s job duties
included assisting Kia’s legal department in investigating EEOC charges. True,
the Team Relations department, which Ms. Gogel headed, occasionally conducted
investigations into policy violations, attendance issues, and internal discrimination
claims. However, the parties’ accounts of how important these investigations were
to Ms. Gogel’s job are quite different. Ms. Gogel says that EEOC investigations
were not central to her job and that her primary role was to prevent union
organizing activity and ensure that Kia employees “understand what the rules and
guidelines of the workplace were.” In support, she introduced evidence that the
85
Case: 16-16850 Date Filed: 07/29/2020 Page: 86 of 150
Team Relations department only investigated EEOC charges at the direction of Kia
legal counsel and that her role did not include the resolution of these issues. Ms.
Gogel understood the Team Relations department, in contrast to the Kia Legal
Department, was tasked primarily with “building . . . systems and processes to
ensure fair and equitable treatment, and . . . facilitat[ing] high employee morale.”
As before, the majority resolves this dispute by accepting Kia’s version of
the facts. And on this issue, like the first, the specific responsibilities of Ms.
Gogel’s job are central to resolving whether the form of opposition imputed to
her—soliciting another employee to file a discrimination charge against Kia—was
reasonable. See Hochstadt v. Worcester Found. for Experimental Biology, 545
F.2d 222, 230–31 (1st Cir. 1976) (holding that, in balancing the scope of
reasonable opposition conduct, “[t]he requirements of the job and the tolerable
limits of conduct in a particular setting must be explored”). If Ms. Gogel’s job
required her to assist in EEOC investigations only rarely, it would render Kia’s
claim that her opposition conduct made her ineffective in her position significantly
less credible and more likely to be pretextual.
The majority’s failure to recognize the disputes over Ms. Gogel’s job
requirements is particularly consequential here, where Kia has never pointed to a
clear company policy that she violated. By Ms. Gogel’s account, her job
responsibilities were significantly different than those of the plaintiffs in Hamm,
86
Case: 16-16850 Date Filed: 07/29/2020 Page: 87 of 150
Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir.
1980), and Jones. In those cases there was evidence that the plaintiff employees
had violated either clear administrative protocols for handling discrimination
complaints, see Hamm, 708 F.2d at 653; Whatley, 632 F.2d at 1326–27, or a clear
obligation to represent the employer in administrative proceedings and attempt to
resolve discrimination complaints in a manner favorable to the company, Jones,
793 F.2d at 716–17. Kia, in contrast, emphasizes Ms. Gogel’s breach of the trust
that management placed in her and the loyalty it expected from her. Whether any
employee has met this general and aspirational job requirement is not readily
apparent, unlike those policies violated in the cases relied upon in the majority
opinion.
In the absence of a clear violation of company policy, a jury should decide
whether it was reasonable for Kia to fire Ms. Gogel because her opposition
conduct made her ineffective at her job. Again, it is not for judges to resolve
disputes of fact about Ms. Gogel’s specific job duties and responsibilities. And
when the majority opinion anchors its decision on Kia’s assertions that it lost
“trust” in Ms. Gogel, it necessarily gives credence to one side’s facts over the
other. By taking over this fact-finding function, our court has reduced the scope of
Title VII’s protections for thousands of people whose positions in human resources
87
Case: 16-16850 Date Filed: 07/29/2020 Page: 88 of 150
put them in incidental contact with EEOC complaints. 5 This undermines the
overall effectiveness of Title VII, which “depends for its enforcement upon the
cooperation of employees who are willing to file complaints and act as witnesses.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414
(2006). Thus, today’s ruling chips away at the statute’s goal of “strik[ing] at the
entire spectrum of disparate treatment of men and women in employment.” Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986)
(quotation marks omitted).
2. Ms. Gogel’s own EEOC complaint
Separate from the question of whether Ms. Gogel’s opposition conduct was
reasonable, there is also a dispute about whether she was fired because she filed
her own EEOC charge. As the majority acknowledges, filing an EEOC charge is
protected participation conduct and is therefore not a permissible basis for an
adverse employment action. Maj. Op. at 43. Again here, this evidence creates a
triable issue of fact concerning Kia’s reason for firing Ms. Gogel. It therefore
5
Amici from the Florida and Georgia chapters of the National Employment Lawyers
Association point us to statistics kept by the Bureau of Labor Statistics, which now show that in
2018 there were over 625,000 “human resources specialists” and 150,000 “human resources
managers” in the United States. See Br. of Amici Curiae National Employment Lawyers
Association, Florida and Georgia Chapters at 19–20; Bureau of Labor Statistics, U.S. Dep’t of
Labor, Occupational Outlook Handbook, “Human Resources Specialists,”
https://www.bls.gov/ooh/business-and-financial/human-resources-specialists.htm (last visited
March 19, 2020), and “Human Resource Managers,”
https://www.bls.gov/ooh/management/human-resources-managers.htm (last visited March 19,
2020).
88
Case: 16-16850 Date Filed: 07/29/2020 Page: 89 of 150
provides another independent ground for reversing the grant of summary
judgment.6
First, Ms. Gogel points to the timing of the filing of her EEOC charge and
her suspension and firing. Close temporal proximity can support a finding of
causation between a statutorily protected activity and an adverse employment
action. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007) (per curiam). Ms. Gogel filed her first EEOC charge on November 10,
2010. Kia received it on November 22. Ms. Gogel was fired less than two months
later. This evidence supports the inference that her filing of the EEOC charge,
rather than concerns about her effectiveness in her position, was the real reason for
her discharge. Even if the two-month gap between the filing of Ms. Gogel’s
6
The majority points to the holding in the original panel opinion that Ms. Gogel could
not prove causation for her gender and national origin claim based solely on the fact that she
filed her own EEOC charge. See Maj. Op. at 27 n.17. True, the now-vacated opinion said that,
although the timing of Ms. Gogel’s filing of her EEOC charge tended to show that the reason
offered by Kia for her firing was pretextual, that evidence failed to show that the “real reason”
was national origin or gender discrimination. See Gogel v. Kia Motors Mfg. of Ga., Inc., 904
F.3d 1226, 1239 (11th Cir. 2018) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113
S. Ct. 2742, 2752 (1993)). The majority fails to note, however, that the prior panel expressly
said this same evidence does support Ms. Gogel’s retaliation claims. Id. I have been consistent
in this regard, and the en banc majority’s suggestion to the contrary does not accurately reflect
the history of this case.
Beyond this, the majority’s statement that I “appeared” to take what they perceive as a
slightly different position in the original panel opinion ignores the nature of our court’s work by
way of three-judge panels. I wrote the panel opinion with the active advice and assistance of the
Honorable Diarmuid O’Scannlain, who was visiting our court from the U.S. Court of Appeals for
the Ninth Circuit. Judge O’Scannlain and I agreed that Ms. Gogel should rightfully been given a
trial based on the record we reviewed. Sadly, now that the majority of active judges on my court
has vacated our opinion, I must proceed without Judge O’Scannlain’s input. It is perfectly
natural and proper for me to express my ideas in new ways in this en banc setting.
89
Case: 16-16850 Date Filed: 07/29/2020 Page: 90 of 150
EEOC charge and her suspension were not alone enough to conclusively prove a
causal link, there is more. Additional record evidence would allow a reasonable
jury to infer that the real reason for Ms. Gogel’s firing was not management
concerns about the assistance she provided Ms. Ledbetter but was retaliation for
filing her own EEOC charge.
This additional evidence includes evidence that Kia retaliated against others,
like Mr. Tyler and Ms. Ledbetter, when they filed their own EEOC charges. The
record shows Kia fired Mr. Tyler shortly after he filed his own charge. There is
also evidence that Kia pressured Ms. Ledbetter to admit that Ms. Gogel
encouraged her to file an EEOC charge. And there is evidence that Kia later
pressured Ledbetter to drop her EEOC charges altogether. Such evidence of other
retaliatory conduct—sometimes referred to as “me too” evidence—is probative of
Kia’s intent to retaliate against Ms. Gogel for filing her own EEOC charge. See
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1309 (11th Cir. 2016).
Ms. Gogel also submitted evidence that calls into question whether her
supervisors sincerely believed she colluded to file lawsuits against Kia. Both Ms.
Gogel and Ms. Ledbetter say they affirmatively denied Kia’s accusations of
collusion. And deposition testimony revealed that the only other co-workers
interviewed before Ms. Gogel’s termination were Arthur Williams and Paul
Grimes, neither of whom had direct knowledge of whether Ms. Gogel and Ms.
90
Case: 16-16850 Date Filed: 07/29/2020 Page: 91 of 150
Ledbetter were colluding. As the majority correctly observes, Kia was entitled to
choose between conflicting versions of events “as long as the choice [was] an
honest choice,” Total Systems Services, 221 F.3d at 1176, and Kia “in good faith
believed” in the factual basis of its adverse employment action, Elrod, 939 F.2d at
1470 (quotation marks omitted). Maj. Op. at 51–52. But the evidence nonetheless
casts doubt on whether Kia conducted a reasonable investigation of Ms. Gogel’s
conduct and whether it sincerely and reasonably believed she had colluded with
Ms. Ledbetter.
Taken together, the evidence submitted by Ms. Gogel raises sufficient
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in
Kia’s reasons for terminating her that “a reasonable factfinder could find them
unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th
Cir. 1997) (quotation marks omitted).
III.
Aside from the errors in its legal analysis, I am also troubled by the critical
tone the majority opinion takes in describing Ms. Gogel. The record before us
shows that Ms. Gogel was never subject to disciplinary action of any kind from the
date of her hiring at Kia until the dispute that is the subject of this lawsuit arose.
Indeed, Ms. Gogel’s supervisor at Kia testified under oath that Gogel was “always
very professional” and had no complaints filed against her.
91
Case: 16-16850 Date Filed: 07/29/2020 Page: 92 of 150
The majority opinion seems to lose sight of the fact that the question before
us is about a limited exception to Title VII’s protections and that, even under Kia’s
account of the facts, Ms. Gogel’s actions were motivated by her desire to assist a
fellow employee respond to perceived gender discrimination. But for the unique
requirements of Ms. Gogel’s job, her conduct would undisputedly be protected
under § 2000e-3. Indeed, not only is such conduct protected, it is necessary to
achieve Title VII’s goal of eliminating gender discrimination from the workplace.
See Burlington, 548 U.S. at 67, 126 S. Ct. at 2414.
Were I in the majority, I would not have included the recitation from Kia’s
EEOC position statement, particularly the assertion that Ms. Gogel was “blatantly
dishonest when explicitly questioned about Diana Ledbetter.” Maj. Op. at 19. As
outlined above, there is a genuine factual dispute over the nature and extent of Ms.
Gogel’s assistance to Ms. Ledbetter. There is therefore no basis for this Court to
include language indicating that Ms. Gogel was dishonest. Ms. Gogel’s credibility
is not at issue in a motion for summary judgment. See Anderson, 477 U.S. at 255,
106 S. Ct. at 2513. And we should honor the fact that Kia has not argued that it
fired Ms. Gogel because she was suspected of lying to her supervisors.
I also would not have included quotations from the deposition testimony of
Ms. Gogel’s co-workers which disparaged her work methods. Maj. Op. at 44–46.
As judges, we were never a part of Ms. Gogel’s workplace and it was not our
92
Case: 16-16850 Date Filed: 07/29/2020 Page: 93 of 150
charge to make findings about how she conducted herself there. We are therefore
in no position to judge the credibility of the accounts her co-workers gave about
her. Repeating these disparaging accounts in a judicial opinion can do permanent
harm to Ms. Gogel’s reputation when she has never been provided any opportunity
to subject those negative accounts to adversarial testing. It is the role of the courts
to receive complaints from people who, like Andrea Gogel, believe they lost their
jobs for reasons the law prohibits. Plaintiffs should not fear having their
reputations tarnished by judges reviewing legal questions, simply because they
presented their grievance to the courts.
IV.
The majority opinion misapplies the McDonnell Douglas burden-shifting
framework and improperly resolves disputes over important facts at the summary
judgment stage. Because these issues should be resolved at trial, I respectfully
dissent.
93
Case: 16-16850 Date Filed: 07/29/2020 Page: 94 of 150
ROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit
Judges, dissenting:
Like decades of our precedent, the Majority Opinion recognizes a valid
concern that employers legitimately demand employee loyalty where those
employers attempt in good faith to comply with Title VII. But the Majority Opinion
goes too far. It goes off the rails when it ignores the rest of what our precedent
requires; that is, today’s ruling 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.
To do this, the Majority Opinion creates a new rule that departs from our
longstanding precedent and essentially bans 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. Remarkably, as this case
shows when we consider all the evidence (not just that cherry-picked by the Majority
Opinion), the Majority Opinion’s new rule applies even if the employer has
affirmatively acted in bad faith and set up its internal Title VII process for the
purpose of frustrating Title VII’s very goals.
Title VII was enacted, in relevant part, to “seek[] a workplace where
individuals are not discriminated against because of their . . . gender-based status.”
94
Case: 16-16850 Date Filed: 07/29/2020 Page: 95 of 150
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). And the
“primary purpose” of Title VII’s antiretaliation provision is “maintaining unfettered
access to statutory remedial mechanisms.” Id. at 64 (cleaned up). Far from securing
“unfettered access,” the Majority Opinion’s new rule ensures human-resources
employees will never speak one word about the law’s “statutory remedial
mechanisms” to other employees, under even the most sustained discriminatory
circumstances. And if they do, the Majority Opinion’s new rule permits employers
to fire those human-resources employees with complete Title VII impunity.
Considering that, as of 2018, there were roughly 775,000 human-resources
employees nationwide1—and these now-silenced employees are often the
employees most familiar with Title VII’s protections—the Majority Opinion’s new
rule has the potential to inflict a devastating blow to the Title VII rights of both
human-resources employees and the employees they serve.
True, for those employers who follow both the letter and spirit of the law in
trying to foster a business environment free from discrimination, the Majority
Opinion does not change anything. But for those employers who treat their Title VII
obligations as an obstacle to avoid and discharge their responsibilities with bad faith,
1
This number comes from the U.S. Bureau of Labor Statistics and its Occupational
Outlook Handbook. According to that source, in 2018, the most recent year for which these
statistics appear to be available, there were 625,700 human-resources-specialist positions in the
United States, https://www.bls.gov/ooh/business-and-financial/human-resources-specialists.htm
(last visited May 5, 2020), plus 152,100 human-resources-manager positions in the United States,
https://www.bls.gov/ooh/management/human-resources-managers.htm (last visited May 5, 2020).
95
Case: 16-16850 Date Filed: 07/29/2020 Page: 96 of 150
this is a welcome development. The Majority Opinion’s new rule turns Title VII’s
purpose on its head and rewards employers who intentionally violate the law. That
obviously is wrong.
Here, we see a demonstration of how the Majority Opinion’s new rule plays
out when the employer undertakes its so-called Title VII compliance efforts in bad
faith.2 For the nearly three years Andrea Gogel worked at KMMG, she must have
felt as if she were working in a house of sexist horrors. Almost immediately after
Gogel began working for KMMG as its Team Relations Manager—a job that
required her to deal in some ways with Title VII complaints 3—she witnessed
KMMG’s discriminatory treatment of its female employees. Indeed, Gogel herself
experienced some of this unending sexist behavior firsthand. She also received
official complaints about it from her fellow employees, both male and female.
As part of her job, Gogel brought these issues to Randy Jackson, KMMG’s
Director of Human Resources and Administration and the one person who should
2
Because this case was decided on a motion for summary judgment, this dissent construes
the evidence and draws all reasonable inferences in the light most favorable to Gogel as the
nonmoving party. Williamson v. Brevard Cty., 928 F.3d 1296, 1304 (11th Cir. 2019). As a result,
the facts set forth here may or may not be the real facts. Were the case to proceed to trial, it would
be up to a jury to decide whether to accept the evidence supporting Gogel’s version of the facts.
3
Judge Martin points out that a dispute of material fact exists on this record over precisely
what Gogel’s duties entailed. See Martin Dissent at Section II.B.1. I agree, but since Judge Martin
has already addressed this point, my dissent assumes KMMG’s assertion that a primary part of
Gogel’s job was to resolve employment disputes before employees resorted to help from an outside
party, such as an attorney, labor union, or the EEOC. Even with this assumption, as I show below,
the record still contains disputes of material fact that preclude summary judgment.
96
Case: 16-16850 Date Filed: 07/29/2020 Page: 97 of 150
have helped her. His responses ranged from useless (doing nothing) to intentionally
destructive (instructing Gogel to embrace KMMG’s “[p]atriarchal” way of doing
things or retaliating against Gogel). Through this system of reporting, KMMG was
able to appear—through Gogel—to offer an internal Title VII process while, in
reality, avoiding compliance with Title VII. Looks can be deceiving. In short,
KMMG and Jackson used Gogel as a mechanism to frustrate Title VII compliance.
The Majority Opinion fails to arrive at this conclusion, which should have
been inevitable, because it makes two significant errors—each of which
independently dooms its analysis.
First, the Majority Opinion fails to heed our binding precedent. It does not
actually apply the factors in the Rollins 4 balancing test when it evaluates whether
Gogel’s alleged advice to Ledbetter to file an EEOC charge constituted protected
activity on this record. Instead, the Majority Opinion simply identifies the test and
refers to it to deny Gogel’s claim.
But the test requires much more than that. It demands that we “balanc[e] the
purpose of [Title VII] and the need to protect individuals asserting their rights
thereunder against an employer’s legitimate demands for loyalty, cooperation and a
generally productive work environment.” Rollins, 868 F.2d at 400-01. The Majority
Opinion affords zero consideration to, let alone discussion of, the first part of this
4
Rollins v. State of Fla. Dep’t of Law Enf’t, 868 F.2d 397, 401 (11th Cir. 1989).
97
Case: 16-16850 Date Filed: 07/29/2020 Page: 98 of 150
balancing test: the purpose of Title VII to “eliminat[e] discrimination in
employment.” Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130,
1139 (5th Cir. Unit A Sept. 4, 1981). 5 It also skimps on its analysis of “the need to
protect individuals asserting their [Title VII] rights.” And it utterly disregards the
requirement in the third part of the balancing test that an employer’s demands for
loyalty, cooperation, and a generally productive work environment be “legitimate.”
A “balancing test” that automatically credits the employer’s “demands for loyalty,
cooperation and a generally productive work environment” (regardless of
legitimacy) and accounts for nothing else is no balancing test at all; it’s a rubber
stamp. If the Majority Opinion had correctly applied the balancing test, it would
have concluded that, under our binding precedent and on this record, a jury must
decide whether Gogel’s alleged advice to Ledbetter to file an EEOC claim
constituted protected activity.
Second, even if we overlook the Majority Opinion’s failure to follow our long-
established precedent that requires actual application of the Rollins balancing test to
determine when otherwise-protected Title VII conduct becomes unprotected, the
Majority Opinion errs in another important way that independently requires vacatur
of summary judgment here. It inexplicably insists that Gogel’s retaliation claim was
5
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding
that all decisions of the “old Fifth” Circuit handed down prior to the close of business on September
30, 1981, are binding precedent in the Eleventh Circuit).
98
Case: 16-16850 Date Filed: 07/29/2020 Page: 99 of 150
based solely on her filing of an EEOC claim. So it refuses to consider in its analysis
her nearly three years of opposing discrimination at KMMG and the retaliation she
suffered during that period as a result. It does this even though Gogel has
consistently argued her opposition conduct as part of her retaliation claim.
As a result of the Majority Opinion’s insistence on analyzing a mere fraction
of Gogel’s retaliation claim, the Majority Opinion fails to consider, in the context
Gogel actually alleged, Randy Jackson’s suspect claim that he fired Gogel because
he believed she had solicited Diana Ledbetter to file suit against KMMG.
Unsurprisingly, ignoring a litany of crucial facts leads the Majority Opinion to
conclude incorrectly that no issue of material fact exists as to whether KMMG’s
proffered reason for firing Gogel was pretextual. And that leads the Majority
Opinion to erroneously affirm the grant of summary judgment for KMMG.
I divide my discussion of the Majority Opinion’s errors into three substantive
parts. To provide a context for demonstrating the problems of each of the Majority
Opinion’s mistakes and because the Majority Opinion’s picked-over version of the
facts fails to capture the rampant discrimination and retaliation that KMMG
regularly engaged in, Section I sets forth relevant facts. In Section II, I properly
apply the Rollins test to the facts of this case, showing that, under our binding
precedent, a jury should be permitted to determine whether, on this record, Gogel’s
alleged solicitation of Ledbetter constituted protected activity under Title VII for
99
Case: 16-16850 Date Filed: 07/29/2020 Page: 100 of 150
which Gogel could not be terminated. Finally, Section III assumes arguendo that
Gogel’s alleged solicitation of Ledbetter could never qualify as protected activity.
It then shows that, in any case, the Majority Opinion incorrectly concluded that
Gogel did not identify a genuine issue of material fact about the reason KMMG fired
her.
I.
Before I set forth the numerous important facts that the Majority Opinion
conveniently ignores, I pause to emphasize the standard on a motion for summary
judgment. We are, of course, required to accept the evidence in the light most
favorable to the non-moving party, see Williamson v. Brevard Cty., 928 F.3d 1296,
1304 (11th Cir. 2019)—here, Gogel. We are also required to draw all reasonable
inferences in favor of the non-moving party. See id. Notably, the Majority Opinion
does not contest any of the facts below that, employing this summary-judgment
standard, I have drawn from the record here. 6 That means that we must account for
them in our summary-judgment analysis.
To give just a little taste of what women at KMMG had to contend with, I
recount some of the conditions Gogel and those who complained to her experienced:
6
Nonetheless, I include pincite references to the evidence of record to allow any interested
reader to evaluate for herself the evidence on which I rely in my recitation of the facts. References
are to the district-court ECF number and the CM/ECF-imprinted page number. For evidence from
deposition transcripts, I include both the CM/ECF-imprinted page number and a parenthetical
reference to the page numbers of the deposition transcript, since four deposition transcript pages
appear on each CM/ECF-numbered page.
100
Case: 16-16850 Date Filed: 07/29/2020 Page: 101 of 150
Two men reported to Gogel that women who were deemed “not pretty” were
hidden, and young female professionals who were viewed as “pretty” were forced
to pretend they were receptionists when Kia VIPs visited. ECF No. 117 at 45(180)-
46(181). In fact, a woman was dismissed from the front-desk receptionist position
“because she was considered unattractive.” ECF No. 101-1 at 10. Women security
officers were also “hid[den]” when Kia VIPs visited. Id. at 6; ECF No. 119 at
43(168). Jackson did not try to deny what was happening when Gogel expressed
concern about it. To the contrary, he told her that appearances were very important
to Kia. ECF No. 101-1 at 15.
Some employees were also told that “only young pretty women can be hired
in [G]eneral [A]ffairs.” ECF No. 117 at 30(119). KMMG employee Diana
Ledbetter, who was in General Affairs, complained to Gogel about that and sought
to transfer out of that section. Jackson had a chance to rectify the situation when
Gogel told him about it. But once again, he failed to do so: he just laughed and said
a decision had already been made (presumably, regarding the denial of Ledbetter’s
transfer request). Id.Women, including Gogel, were excluded from meetings that, based on their
job duties, they should have been a part of and that Gogel’s male subordinates took
part in. Id. at 40(160), 41(161), 154; ECF No. 101-1 at 11. In fact, Jackson told Bob
Tyler, KMMG’s Head of Department for Human Resources and Team Relations,
101
Case: 16-16850 Date Filed: 07/29/2020 Page: 102 of 150
that he did not want Gogel to attend termination-review meetings, even though that
was part of her job as Team Relations Manager. ECF No. 121 at 35(140); ECF No.
117 at 113. Even when Gogel was included in meetings, Jackson instructed her not
to “speak at all.” But the men in the room, including Gogel’s male subordinates,
were permitted to speak. ECF No. 117 at 43 (171-72), 44(174-76); ECF No. 121 at
34(136)-35(137-140).
Gogel perceived herself to be viewed by KMMG as a “token” female
manager, and she was directed to make herself “prominent in photographs [taken]
whenever [she] was invited to a meeting that [she] typically would otherwise have
not been invited to.” ECF No. 117 at 40(159); ECF No. 101-1 at 12.
Kevin Kim, KMMG’s senior manager for Human Relations, Training, and
Organizational Development, instructed Rayla Smoot, the assistant manager of
Training and Organizational Development, to use sexist materials to train employees
on “gender differences.” ECF No. 117 at 59(233-35); ECF No. 115 at 23(87-88).
In particular, the training content showed a man and a woman. ECF No. 117 at
59(233-35). A cartoon bubble over the man’s head said he was thinking about sex,
and the bubble over the woman’s head indicated she was thinking about “shallow,
stereotypical kinds of things,” such as her clothes and what she was going to wear.
Id. When Smoot complained to Gogel, Gogel told her not to use the materials. Id.102
Case: 16-16850 Date Filed: 07/29/2020 Page: 103 of 150
Ledbetter complained to Gogel of reasons to believe the president of Kia was
having an intimate relationship with a subordinate, who was also a manager. Id. at
43(169); ECF No. 101-2 at 2. She was not the only one who thought so; rather,
“[t]he alleged affair was a highly rumored topic.” ECF No. 119 at 99. If the
allegations were true, that relationship was contrary to KMMG’s written anti-
harassment policy, which “prohibit[ed] romantic or sexual relationships between any
KMMG member of management and any subordinate Team Member.” See ECF
No. 93-11 at 4. KMMG’s policy explained that, “given the uneven balance of power
within such relationships, consent by the Team Member is suspect and may be
viewed by others or, at a later date, by the Team Member himself or herself as having
been given as a result of coercion or intimidation.” Id. at 5. Among other things,
Gogel was concerned that the subordinate “could be involved in something that she
wasn’t consenting to, because there was such a dramatic difference in the levels [of
responsibility between the president and the subordinate].” ECF No. 117 at 43(170).
She was also worried that there might be a quid pro quo relationship between the
president and the subordinate. ECF No. 101-1 at 4-5.
But when Gogel discussed the matter with Jackson and sought to investigate
it to ensure that KMMG was complying with Title VII, Jackson prohibited her from
doing so. Id.; see also ECF No. 117 at 31(121); ECF No. 101-2 at 2-3. Gogel was
not the only one to express concern to Jackson about the alleged relationship; Tyler
103
Case: 16-16850 Date Filed: 07/29/2020 Page: 104 of 150
did as well. ECF No. 121 at 32(127-28); ECF No. 101-2 at 2-3. As with Gogel,
Jackson also instructed Tyler not to investigate the allegations. ECF No. 121 at
32(127-28); ECF No. 101-2 at 2-3.
A few weeks later, Kim (KMMG’s senior manager for Human Relations,
Training, and Organizational Development) instructed Gogel to go ahead and
conduct a secret investigation into the subordinate—not the president—and not to
tell Jackson. ECF No. 117 at 31(121-22). Soon after that, though, Kim demanded
Gogel “stop the investigation, do not gather any more information, and destroy all
information related to anything that [she] had done.” Id. at 31(122). Kim’s attitude
towards Gogel then changed for the worse. Id.When KMMG reorganized its management structure in 2009, every male
manager where no higher level of management existed in the home office was made
a head of department. Id. at 32(126). But Gogel, the only woman who was a
manager where a higher level of management did not exist in the home office, was
not similarly promoted. Id. at 32(125-26). Jackson made the decision not to elevate
Gogel. ECF No. 115 at 35(134).
Gogel met with Jackson and told him she felt that she was being treated
differently because of her gender. ECF No. 117 at 30(117). When she asked why
she had not been made Head of Team Relations, Jackson told her that Tyler had been
made Head of both the Team Relations and Human Resources Departments and that
104
Case: 16-16850 Date Filed: 07/29/2020 Page: 105 of 150
two Heads of Department were not necessary for these two different departments.
Id. at 32 (126-28). He also told her it was a matter of timing. Id. Gogel questioned
these rationales in 2009 and 2010 and explained why she thought they were suspect.
Id. at 47(185-86). Jackson responded by asking Gogel whether she thought her prior
employer would take her back. Id. Gogel also thought the concerns she reported
about the alleged relationship between the company’s president and a subordinate
contributed to KMMG’s decision not to make her a head of department. Id. at
31(123).
Throughout Gogel’s employment with KMMG, there were fourteen
employees who served in the two highest levels of local management. Not a single
one was a woman. Id. at 117-18, 61(244).
Meanwhile, Tyler, the newly designated Head of Department for both Human
Resources and Team Relations in the reorganization, was instructed by Jackson to
revise his favorable ratings of Gogel to make them less favorable. ECF No. 121 at
22(87). So even though Tyler believed Gogel should have been promoted to senior
manager and Tyler was the one to sign Gogel’s appraisal, he had to follow Jackson’s
instructions and give Gogel lower ratings with which he disagreed. Id. at 22(87-88),
24(95-96), 25(97-98). As it turned out, Tyler explained, the ratings were supposed
to be used to determine who should be promoted to senior manager, but in fact, the
decisions were made without reference to the ratings. The ratings were simply
105
Case: 16-16850 Date Filed: 07/29/2020 Page: 106 of 150
created to appear consistent with the promotion decisions. Id. at 22(87-88)-23(89-
92). More smoke and mirrors.
Gogel was fired from KMMG in January 2011, and KMMG replaced her as
manager of Team Relations with Arthur Williams, Gogel’s former subordinate. 7
Later, KMMG made Williams Head of Department for Team Relations and
appointed a separate Head of Department for Human Resources, notwithstanding
that its rationale for not promoting Gogel had been that only one Head of Department
for both departments was needed. ECF No. 123 at 41(159-60)-43(165-66).
Besides these incidents, while Gogel was still employed with KMMG,
KMMG repeatedly asked “illegal, non-job related questions during and after pre-
employment interviews and the selection/recruitment process.” ECF No. 117 at 154.
Among others, these questions concerned age and marital status. Id. Though these
actions were brought to the attention of Jackson and KMMG’s executive team, the
behavior continued. Id. at 155; ECF No. 118 at 1. And those KMMG employees
who attempted to correct the situation were met with “a systematic approach to
discredit and harass” them. ECF No. 117 at 155.
7
During the period when Gogel supervised Williams, according to Williams’s deposition
testimony, Williams commented that a black dress Gogel had worn to the funeral for a colleague’s
father was “skimpy” and was not “appropriate.” ECF No. 123 at 80(315-16). On another occasion,
Williams told Gogel she “dressed like a ‘Filipino prostitute,’” based on the “high-heeled shoes”
she was wearing. Id. at 80(316)-81(320). Williams also thought Gogel “took the side of women.”
Id. at 80(313).
106
Case: 16-16850 Date Filed: 07/29/2020 Page: 107 of 150
When a server at a KMMG event was pregnant, Ledbetter, who had planned
the event, was instructed to have the server removed. Id. at 51(201). Ledbetter
complained to Gogel’s then-subordinate, Williams. Id.At least two women resigned from KMMG “largely as a result of the general
mistreatment of females and gender-based discrimination.” Id. at 156. Before they
resigned, Team Relations brought the women’s concerns to KMMG, but “Team
Relations was not permitted to conduct prompt, thorough investigations.” Id.Indeed, as far back as August 14, 2009, Gogel emailed KMMG’s Human Relations
and advised, “Some women feel singled out and humiliated—not sure if goal is to
get rid of them or just ‘put them in their place.’” ECF No. 120 at 121.
When a woman returned from maternity leave, Richard Park, the senior legal
manager, told her she was a bad mother for coming back to work. ECF No. 117 at
60(238); see also ECF No. 93-6 at 2. The woman reported the incident to Gogel.
ECF No. 117 at 60(239). Gogel felt unable to address the situation because of the
senior legal manager’s rank in comparison to her own, so she directed the woman to
Jackson and Tyler. Id. Jackson spoke to Park and the woman about the incident and
decided that the woman had misconstrued Park’s statements. ECF No. 115 at
37(143-44). The woman ultimately resigned, citing the statement from Park as a
reason why. ECF No. 93-6 at 2. Upon resigning, she further explained that once
she returned from maternity leave, she “didn’t have a true position.” Id. Rather, she
107
Case: 16-16850 Date Filed: 07/29/2020 Page: 108 of 150
“was assigned mundane tasks that were left behind and things no one else wanted,
in addition to unchallenging tasks.” Id. The woman opined that KMMG’s company
culture was “if you are a woman you will only climb so far in the organization, and
if you are a woman with children your place is at home.” Id.Two male managers in the company’s stamping group—one of whom was the
group’s senior manager—complained to Gogel that a female manager in stamping
was being treated poorly by a subordinate because she was a woman. ECF No. 117
at 46(182-84). According to these men, the male subordinate was extremely
disrespectful to the female manager. Id. Among other incidents, he told the woman
she was nothing but a young girl and commented on the fact that she wore makeup.
Id. Gogel told Jackson and Kim that the male subordinate needed to be disciplined.
Id. But all Kim did was “coach” the subordinate. Id. Gogel “voiced concerns [to
Jackson and Kim] about the decision being tremendously different than . . . what the
facts indicated.” Id. The woman wound up leaving KMMG and explained, “The
work environment was not favorable for women in management position, which had
a significant impact on me.” ECF No. 115 at 123.
At one point, Jackson told Gogel that she had a “responsibility” to support the
“‘[p]atriarchal’ culture” at KMMG. ECF No. 101-1 at 18. Jackson also instructed
Gogel that she had a “responsibility” to assist in identifying “how old people are
from their résumés” because “it was important that . . . people not be older than the
108
Case: 16-16850 Date Filed: 07/29/2020 Page: 109 of 150
people reporting to them.” ECF No. 117 at 65(258). Gogel felt at this point that
KMMG had no interest or desire in “making sure that [it was] operating the way that
was consistent with American laws.” Id. at 65(259).
The list of discriminatory conduct goes on and on.
Finally, though, Gogel had enough. She and other managers contributed to a
document called the Report of Concerns, which catalogued a wide variety of
problems they perceived at KMMG. Id. at 145-58. Among these problems, the
Report of Concerns noted significant Title VII compliance issues, including, among
others, many of the conditions discussed in this dissent, as well as “[d]irectives . . .
to exclude females . . . from employment opportunities” and KMMG’s denial of
“recommendations for employment for female salaried professionals based on their
gender.” 8 Id. at 154; see also ECF No. 122 at 100. The managers provided this
document to Jackson for action. ECF No. 118 at 1.
On October 14, 2010, Jackson held a meeting with Gogel to ask her questions
about the Report of Concerns, which, among other things, summarized concerns
Gogel had expressed to Jackson throughout 2009 and 2010. ECF No. 118 at 1; ECF
No. 101-1 at 8-9. At the meeting, Gogel requested “reassurance that [her] comments
would not lead to further retaliation.” ECF No. 118 at 1; see also ECF No. 101-1 at
8
The Report of Concerns also alleged numerous other violations of the law that are not
relevant to this case. See ECF No. 117 at 152-57.
109
Case: 16-16850 Date Filed: 07/29/2020 Page: 110 of 150
10. She then reiterated the concerns about sex discrimination she had previously
expressed to Jackson. ECF No. 101-1 at 8-9. During the meeting, Gogel answered
questions for roughly 45 minutes, until Jackson said he needed to go to another
meeting, so they had to “wrap up.” ECF No. 118 at 1. Gogel said “there was a lot
more, but nothing that [she] had not complained to [Jackson] about previously.” Id.Nevertheless, Gogel agreed to answer any questions Jackson may have had. Id.But Gogel did not hear back from Jackson. Id. Instead, Tyler told her on
November 3 that Jackson’s “investigation into the issues raised was closed, and
regarding concerns that [Gogel] had raised, it was difficult to address issues that
[Gogel] would not give information about.” Id. Gogel found this response
“remarkable,” since Jackson had ended the October 14 meeting and Gogel had
agreed to answer any further questions he had. Id. She commented to Jackson that
“[b]eing questioned about complaints by one of the individuals implicated . . . is, at
best, poor investigative practices, but at worst, and for [Gogel], very intimidating.”
Id.Finally, after nearly three years of witnessing “other women experiencing
significant damage to their careers and [seeing] the same thing coming for [her]self,
and [she] couldn’t protect them and [she] couldn’t protect [herself], and the people
that [she] reported to either could not or would not protect [them],” Gogel decided
she had to seek assistance from the Equal Employment Opportunity Commission.
110
Case: 16-16850 Date Filed: 07/29/2020 Page: 111 of 150
ECF No. 117 at 52(208). So on November 10, 2010, Gogel filed a complaint of
discrimination with the EEOC. Id. at 137. Among other things, she alleged she had
been discriminated against “based on [her] sex (female).” Id.Gogel, who had worked in human resources at other companies for seventeen
uneventful years before joining KMMG, see id. at 110, explained her feelings on
filing the charge: “I never thought I would have to do something like that . . . . I
had done everything within the rules and guidelines of everything I knew and
everything that I had ever been taught, as well as the policies of the company I
worked for. And I was sitting there completing an EEOC charge.” Id. at 39(153).
The EEOC received the complaint on November 18, 2010. Id. at 137. Later,
during the course of this litigation, KMMG’s Rule 30(b)(6) witness acknowledged
that employees with a “manager role in HR” have a right to file their own EEOC
charges. ECF No. 115 at 52(201). Nevertheless, she asserted that “[i]t’s beyond my
belief that someone in those positions would file a charge.” Id.Returning to the events as they unfolded, on November 23, 2010, instead of
handling Gogel’s filing of the EEOC charge discreetly, Jackson spoke about Gogel’s
EEOC complaint “in a very loud way” in the “open office environment.” Id. at
50(198-99). Not surprisingly, “so many” other KMMG employees overheard
Jackson’s “comments and conversations regarding [Gogel’s] EEOC charge.” Id.111
Case: 16-16850 Date Filed: 07/29/2020 Page: 112 of 150
Among those who heard about Gogel’s EEOC charge as a result of Jackson’s
behavior was Ledbetter. ECF No. 101-1 at 14; ECF No. 117 at 50(198-99).
Ledbetter then asked Gogel about it and inquired whether Gogel had chosen an
attorney yet. Id.Meanwhile, while Jackson was busy talking about Gogel’s EEOC complaint
in front of anyone and everyone who would listen, on December 3, KMMG required
Gogel to sign an agreement that, among other things, prohibited her from
“discuss[ing] [her] EEOC charge or similar claims against [KMMG] with Team
Members.” ECF No. 118 at 9. When Gogel asked for time for her lawyer to review
the document, Jackson sent her home until she agreed to sign the document, which
she ultimately did on December 6. ECF No. 117 at 53(210); ECF No. 115 at 41(157-
58).
Then, on December 10, 2010, Diana Ledbetter filed her own charge of
discrimination against KMMG. ECF No. 120 at 134-35. Among other things,
Ledbetter asserted in her charge that she had been “required to engage in conduct
that males at my level have not been required to do.” Id. She provided examples,
noting that she was made “to practice saying ‘welcome Chairman’ in front of male
executives while holding flowers,” since she was required to perform this task when
high-ranking male executives visited the plant; she was “forced to pour wine” for
these same male executives; and she was “called a Geisha at work.” Id. According
112
Case: 16-16850 Date Filed: 07/29/2020 Page: 113 of 150
to Ledbetter’s charge, “[s]ome male managers t[old] [her] they [were] sorry for what
[she] ha[d] to do and other male managers laugh[ed] in [her] face.” Id.Ledbetter later explained that she “knew [Gogel] and [Tyler] were powerless
to help [her], and . . . Jackson wasn’t helping [her] either.” ECF No. 101-2 at 3. So
she concluded that “[t]he only choice [she] had . . . was to file a Charge with the
EEOC.” Id. Ledbetter stated that Gogel “did not encourage [her] nor solicit [her]
to get an attorney and sue the company or file an EEOC charge.” Id. at 3-4. Rather,
Ledbetter insisted she “decided for [her]self” to file an EEOC charge. In fact,
Ledbetter explained, she “had no intention of suing KMMG.” Id. at 4. Rather, she
“just wanted KMMG to listen to [her] complaints . . . .” Id.On January 7, 2011, after KMMG’s Christmas break, Jackson and Charlie
Webb, a KMMG lawyer, met with Gogel. See ECF No. 117 at 66(261). They asked
Gogel whether she had colluded with Ledbetter, and Gogel denied that she had done
so. Id. They also asked her about a particular meeting she had had with Ledbetter
and whether she had discussed suing KMMG at that time. Id. at 66(262). Gogel
had notes from the meeting that showed that the discussion was not about lawsuits
but rather concerned providing boxed lunches or different alternatives to allow
KMMG employees to eat lunch while the cafeteria was shut down during the
Christmas break. Id. According to Gogel, at the January 7 meeting, she “adequately
explained everything [Jackson and Webb] were asking [her] about. And it was in
113
Case: 16-16850 Date Filed: 07/29/2020 Page: 114 of 150
no way inappropriate.” Id. at 66(263). Nevertheless, at the end of the meeting,
Webb asked Jackson, “‘What do you want to do?’ And [Jackson] said, ‘Well, just
to be safe, why don’t we go ahead as planned.’” Id. So Gogel was escorted from
the building and placed on administrative leave. Id. at 66(263-64).
On January 19, 2011, Jackson—Gogel’s supervisor who, for the last nearly
three years, had failed to take action against the sexism at KMMG and had retaliated
against Gogel for continuing to seek a remedy for the situation—sent Gogel a letter
terminating her employment. ECF No. 118 at 26-27. The letter said that “[b]ased
on [KMMG’s] investigation, one could conclude that [Gogel] encouraged or even
solicited the filing of [Ledbetter’s discrimination] charge.” Id. It continued, “At the
very least, there is an appearance of a conflict of interest sufficient to cause the
Company to lose confidence in the loyalty and trust that is required by [Gogel’s]
position.” Id. Notably, the letter did not state that Jackson or KMMG had actually
concluded that Gogel “encouraged or even solicited the filing of [Ledbetter’s
discrimination] charge.”
Soon after, Ledbetter called Williams, who had since assumed Gogel’s role
after she was fired (he was later formally appointed in April 2011 to replace Gogel).
Ledbetter asked him whether she was going to be fired. ECF No. 101-2 at 4; ECF
No. 114 at 24(89); ECF No. 123 at 56(220)-57(224). Williams met Ledbetter on
January 26, 2011, at a Wal-Mart to discuss her fear of retaliation. ECF No. 101-2 at
114
Case: 16-16850 Date Filed: 07/29/2020 Page: 115 of 150
4-5; ECF No. 123 at 67(264), 142-44. He asked Ledbetter about her EEOC charge
and “basically told [her] [she] needed to admit that [Tyler] and [Gogel] encouraged
[her] to make the decision to file a Charge, and if [she] did so, then all would be
forgiven against [her].” ECF No. 101-2 at 5. Ledbetter refused “because it was not
true.” Id. Then Williams responded that Ledbetter “was young and impressionable
and maybe [she] didn’t know what [she] was doing, which [Ledbetter] found
insulting.” Id. He continued to pressure Ledbetter “to drop [her] [EEOC] Charge,
and to say [she] made a mistake.” Id. Ledbetter refused, noting that no one at
KMMG had told her that they would “help rectify [her] complaints.” Id.According to Williams’s own notes of his conversation with Ledbetter, he also
told Ledbetter, “You got a hell of a way of showing you care. Most of us could
come up [with] something better than what you did,” referring to her filing of an
EEOC charge. ECF No. 123 at 70(273-74). When Ledbetter expressed concern that
she had already faced retaliation at work, Williams responded, “Diana[,] come on[.]
You filed vs. the Company. What do you expect? Do you think you are to be the
golden child after doing something like that?” Id. at 70(276), 143. Then Williams
asked, “Where’s the loyalty? You came to Kia without an automotive background.
They worked with you to become an [assistant manager] in General Affairs in a very
short time, and this is what you do!” Id. For emphasis, Williams repeated, “[A]ny
115
Case: 16-16850 Date Filed: 07/29/2020 Page: 116 of 150
new [team member] would be happy to have reached the level you have in such a
short time, and this is what you do.” Id. at 71(278), 143.
Meanwhile, after Gogel’s termination, Gogel filed a new charge with the
EEOC on February 8, 2011. ECF No. 118 at 28. It alleged that KMMG “retaliated
against [her] due to [her] opposition to acts made unlawful by Title VII.” Id.In 2012, Ledbetter again sought to be transferred out of General Affairs. ECF
No. 101-2 at 6. Jackson and Latesa Bailey, then the Head of Department for Human
Resources, “[e]ssentially . . . told [her] if [she] dropped [her] EEOC Charge, then
[she] would have a better chance of being transferred, so [she] withdrew [her] EEOC
Charge.” Id. After she did that, on October 12, 2012, Jackson told her that she could
be transferred out of General Affairs only by applying for and being selected for an
opening for an assistant-manager position, but, of course, there were no openings.
Id. Ledbetter said that “[t]he entire time [her] EEOC Charge was pending, [she] was
the ‘black sheep’ at KMMG. [She] was encouraged by management to withdraw
[her] Charge. [She] withdrew [her] Charge to get back in good favor with the
company, and hopefully receive the transfer [she] had been requesting.” Id. Finally,
nine months later, in June 2013, when she still had not received the transfer she had
sought since she was hired in 2008, Ledbetter resigned from KMMG. Id.116
Case: 16-16850 Date Filed: 07/29/2020 Page: 117 of 150
II.
I begin my analysis by assuming, for the purposes of this section only, that
Jackson fired Gogel because he truly believed she had solicited Ledbetter to file an
EEOC charge. Even with that assumption, under our binding case law, summary
judgment should not have been granted. That is so because an issue of material fact
exists over whether, on this particular record, Gogel’s alleged solicitation of
Ledbetter nonetheless qualifies as protected activity.
A. Under our binding precedent, we must apply a balancing test that,
among other components, requires consideration of the legitimacy of
the employer’s demands for loyalty
As the Majority Opinion notes, our predecessor Court has held that an
employee’s otherwise protected Title VII conduct may “so interfere[] with the
performance of [her] job that it renders [her] ineffective in the position for which
[she] was employed.” Maj. Op. at 29 (quoting Rosser v. Laborers’ Int’l Union of N.
Am., Local No. 438, 616 F.2d 221, 223 (5th Cir. 1980)). In that case, the conduct no
longer qualifies as protected. See id.But contrary to the Majority Opinion’s suggestion, see Maj. Op. at 41–42, this
quotation from Rosser does not state a standalone test in and of itself. Even Rosser
suggests that to determine the point at which opposition conduct crosses the Rosser
threshold, we must engage in a balancing of sorts. See id. (“We believe that on
balance, this is just such an instance.”).
117
Case: 16-16850 Date Filed: 07/29/2020 Page: 118 of 150
And so it is not surprising that we expressly identified the proper
considerations for balancing more than thirty years ago in Rollins, 868 F.2d at 401.
There, we explained that we determine when otherwise-protected conduct becomes
unreasonable in the eyes of Title VII (and therefore unprotected) by “balancing the
purpose of [Title VII] and the need to protect individuals asserting their rights
thereunder against an employer’s legitimate demands for loyalty, cooperation and a
generally productive work environment.” Id. So it is Rollins that governs the
determination of when an employee’s otherwise-protected Title VII conduct
becomes unprotected.
The Majority Opinion tries to avoid this awkward fact by claiming that the
Rollins test pertains to only otherwise-protected Title VII conduct that “does not
interfere with an employee’s job duties [but] is nonetheless so disruptive that it does
not qualify for protection.” Maj. Op. at 35. Not so. The Rollins balancing test
applies whenever an employer asserts that otherwise-protected Title VII conduct has
become unprotected—regardless of the reason. Rollins itself, as well as other case
law, makes this clear.
First, by its terms, the Rollins balancing test governs all cases where a court
must determine whether “the manner in which an employee expresses her opposition
to an allegedly discriminatory employment practice” is “reasonable.” 868 F.2d at
401. Advising another employee of her right under Title VII to file an EEOC
118
Case: 16-16850 Date Filed: 07/29/2020 Page: 119 of 150
charge—even if the employee giving the advice is a human-resources employee—
is a “manner in which an employee expresses her opposition to an allegedly
discriminatory practice.” That is, after all, why it is called opposition conduct. So
when an employer raises a question about whether a human-resources employee’s
activity in that regard remains protected, the answer is necessarily dictated by the
Rollins test.
Second, as I noted in the last paragraph, under Rollins, only “reasonable”
otherwise-protected Title VII conduct remains protected. 868 F.2d at 401. And
according to Rollins, “reasonable” conduct is “protected conduct [that is not] so
disruptive or inappropriate as to fall outside [Title VII’s] protection.” Id. (citing,
among other cases, Payne, 654 F.2d at 1142). Based on Rollins’s citation of Payne
for that proposition, we know that the Rollins Court included activity that “so
interferes with the performance of [the employee’s] job that it renders [the
employee] ineffective in the position for which [the employee] was employed,”
Payne, 654 F.2d at 1142, within the meaning of conduct that is overly “disruptive or
inappropriate,” Rollins, 868 F.2d at 401. In other words, the Rollins Court
understood that the Rollins balancing test applies to conduct that the employer claims
interfered enough with the employee’s duties that it made the employee ineffective
in her position.
119
Case: 16-16850 Date Filed: 07/29/2020 Page: 120 of 150
Third, Rollins tells us in yet another way that its balancing test applies equally
to employees whose otherwise-protected activities are unreasonably disruptive and
employees whose otherwise-protected activities may interfere with their job duties:
Rollins observes that “in applying [the Rollins] balancing test, our approach is
consistent with those of our sister circuits which have addressed the issue.” 868 F.2d
at 401. Rollins then cites, among other cases, Jones v. Flagship International, 793
F.2d 714, 728 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987), as having
“addressed the issue” and applied a similar balancing test to resolve it.
As the Majority Opinion notes, see Maj. Op. at 32–33, the “issue” in Jones
was whether the actions of the plaintiff there, in soliciting another employee to file
a discrimination charge against the employer and inviting a different employee to
join in a lawsuit against the employer, so interfered with the plaintiff’s duties as legal
counsel and manager of equal-opportunity-employment programs that it rendered
her ineffective for the position. And Rollins views the conduct in Jones—otherwise-
protected conduct that the employer claims so interferes with the employee’s job
duties so as to render her ineffective for her position and thereby render the conduct
unprotected—and the conduct in Rollins—otherwise-protected conduct that the
employer claims is so disruptive as to become unprotected—as raising the same
“issue” and therefore justifying the use of the same balancing approach. Rollins,
868 F.2d at 401.
120
Case: 16-16850 Date Filed: 07/29/2020 Page: 121 of 150
Fourth, the Majority Opinion’s insistence that the isolated statement from
Rosser it quotes represents some type of independent test for protected conduct is
not even supported by the cases the Majority Opinion cites. I have already explained
that even Rosser anticipates some type of “balanc[ing].” See Rosser, 616 F.2d at
224. And Hamm v. Members of the Board of Regents of the State of Florida, 708
F.2d 647 (11th Cir. 1983)—which the Majority Opinion also relies upon and which
predates Rollins9—applies what Rollins later incorporated into its balancing test as
the legitimacy consideration. See Maj. Op. at 30–31.
In particular, in Hamm, we held that the employee had not engaged in
protected activity only after we observed that no evidence “show[ed] that any of the
defendants ever directed the plaintiff to overlook claims of discrimination by
employees or to cease bringing such claims to their attention.” 708 F.2d at 654. In
other words, we accounted in our analysis not only for the employee’s job
responsibilities but also for whether the employer’s demands of loyalty and
9
All three of the cases the Majority Opinion relies upon for the proposition that the Rollins
test does not apply to otherwise-protected conduct that the employer asserts so interferes with the
employee’s duties that it renders her ineffective for her position—that is, Rosser, Hamm, and
Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. 1980)—were
issued in the years before we decided Rollins. So of course they do not cite or rely on the Rollins
balancing test. But any fair reading of Rollins shows that it represents the next step in our Circuit’s
development of the law governing the determination of when otherwise-protected Title VII
conduct loses that protected status. Indeed, since Rollins was issued, we have cited Rosser only
once in a precedential case—in the now-vacated panel opinion in this case. But there, as in this
dissent, we explained that Rosser is tempered by the Rollins balancing test.
121
Case: 16-16850 Date Filed: 07/29/2020 Page: 122 of 150
cooperation were legitimate. And we did so by pointing to the absence of facts in
Hamm that are so glaringly present here.
To sum up, the Majority Opinion’s treatment of Rosser ignores the
unmistakable development of protected-conduct analysis in the Eleventh Circuit. As
a result, the Majority Opinion necessarily applies a flawed framework.
Plus, we got it right when we developed the Rollins balancing test to determine
whether otherwise-protected Title VII conduct of any kind becomes unprotected.
Both the text of Title VII and the rule of law require consideration of, among other
things, the legitimacy of the employer’s demands for loyalty.
First, the text: Title VII, by its terms, makes it illegal for “an employer” to
retaliate against an employee “because [she] has opposed any practice made an
unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). The one
thing that all opinions in this case agree on is that advising a colleague about filing
a Title VII charge generally constitutes protected Title VII activity. The Majority
Opinion concludes it does not here only because of Gogel’s duties.
But Title VII was never meant to wholesale exclude from its protections under
every circumstance human-resources employees who mention Title VII statutory
remedies to other employees. We know this because, in enacting Title VII, Congress
specifically exempted from its coverage six categories of employees. See 42 U.S.C.
§§ 2000e-1(a), 2000e-2(e), 2000e-2(f), 2000e-1(b). Human-resources employees
122
Case: 16-16850 Date Filed: 07/29/2020 Page: 123 of 150
are not among these. As we emphasized just a few months ago, “[w]here Congress
explicitly enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of evidence of a contrary legislative
intent.” Pitch v. United States, 953 F.3d 1226, 1234 (11th Cir. 2020) (en banc)
(citation and internal quotation marks omitted). Here, the Majority Opinion points
to no contrary legislative intent, and I am likewise aware of none. Yet the Majority
Opinion nonetheless reads this unwritten exclusion into Title VII.
Second, the rule of law: the Majority Opinion’s approach rewards bad-faith
efforts to frustrate Title VII. It allows the most contumacious employer to fire its
human-resources employees with impunity if they so much as make a fellow
employee aware of Title VII’s remedies—no matter how outrageous and extended
the employer’s bad-faith efforts to obstruct Title VII in the workplace. In contrast,
an employee who brings a Title VII claim must have a “good faith, reasonable belief
that the challenged practices violate Title VII.” Rollins, 868 F.2d at 400. For good
reason. The legitimacy of the law is at stake. We should not permit any party to use
the courts to bless a one-sided interpretation of the law that allows those who refuse
in bad faith to comply with the law’s requirements to benefit from their very refusal
to comply. Because Rollins’s balancing test accounts for this very important interest
in the rule of law, it—and not the rule the Majority Opinion adopts today—correctly
123
Case: 16-16850 Date Filed: 07/29/2020 Page: 124 of 150
sets forth the appropriate considerations for determining whether otherwise-
protected conduct remains so.
B. The Majority Opinion does not conduct the balancing that Rollins
requires
Here, the Majority Opinion does none of what Rollins requires. It never even
mentions the purpose of Title VII in its analysis. And it conveniently omits
consideration of the numerous instances of Title VII opposition conduct that Gogel
claimed to have participated in, so it fails to properly account for “the need to protect
[Gogel’s] asserti[on] [of her Title VII] rights.” Compounding these errors, the
Majority Opinion simply assumes that KMMG’s demands for loyalty in this case are
“legitimate,” without evaluating them against Gogel’s claims that KMMG cavalierly
and regularly violated Title VII and inevitably and repeatedly retaliated against those
who complained.
So in the end, the Majority Opinion’s “balancing” consists of only blindly
believing KMMG’s demands for loyalty were “legitimate” in this case. Towards
that end, the Majority Opinion takes into account only Gogel’s duties that required
her to attempt “to internalize the resolution of any complaint and thereby avoid, if
possible, the external resolution of that complaint, such as the filing of an EEOC
charge and a subsequent lawsuit,” and KMMG’s assertion that Gogel advised
Ledbetter to file an EEOC claim. See Maj. Op. at 44. With a “balance” stacked like
124
Case: 16-16850 Date Filed: 07/29/2020 Page: 125 of 150
that in KMMG’s favor, it’s no wonder the Majority Opinion concludes that Gogel
failed to show she engaged in protected activity.
C. Actually applying the Rollins balancing test compels the conclusion
that Gogel’s evidence establishes a material issue of fact concerning
whether her activity constituted Title VII protected conduct in the
circumstances here
But if we consider what the Rollins balancing test actually requires, it is clear
that a jury should have been permitted to determine whether Gogel’s alleged
solicitation of Ledbetter was protected activity. Rollins’s balancing test finds its
origins in Payne. See Rollins, 868 F.2d at 401 (citing Payne, 654 F.2d at 1145).
In Payne, our predecessor Court explained that “[w]hen the [employer] offers
evidence that plaintiff’s conduct [that otherwise would have been protected conduct
under Title VII] was [not protected activity under Title VII in the particular
instance], and therefore provided the [employer] with a nondiscriminatory reason
for its employment action, the plaintiff is entitled to an opportunity to show that his
activities were reasonable under the circumstances and were warranted by the
employer’s conduct.” Payne, 654 F.2d at 1145. Indeed, unless the plaintiff’s
otherwise-protected conduct is so clearly beyond the pale of protected activity that
we can determine it is unprotected “as a matter of law,” “the fact finder must have
an opportunity to hear evidence, to balance the competing considerations, and to
reach a conclusion as to the reasonableness of the conduct.” Id. at 1145-46
125
Case: 16-16850 Date Filed: 07/29/2020 Page: 126 of 150
(emphasis added). In other words, when an employer alleges that an employee’s
duties render otherwise-protected conduct unprotected, whether that is actually so
on a given record is a question of material fact for the jury to resolve, unless the
plaintiff’s conduct necessarily, as a matter of law, qualifies on the particular record
as unprotected.
The Rollins balancing-test factors tell us how to make that assessment. And
when we apply those factors here, we cannot find that Gogel’s conduct, under the
circumstances she alleges KMMG created in this case, is, as a matter of law,
unprotected activity under Title VII. To conduct this analysis correctly, we begin
by identifying the content of the three factors to be balanced: “the purpose of the
statute,” “the need to protect individuals asserting their rights thereunder,” and the
“employer’s legitimate demands for loyalty, cooperation and a generally productive
work environment.” Rollins, 868 F.2d at 401.
With respect to “the purpose of the statute,” Gogel proceeds under Title VII’s
retaliation prohibition. To understand Title VII’s antiretaliation provision, we must
begin with Title VII’s antidiscrimination provision. That provision “seeks a
workplace where individuals are not discriminated against because of their . . .
gender-based status.” Burlington N., 548 U.S. at 63. Title VII’s antiretaliation
provision, in turn, “seeks to secure that primary objective [of the antidiscrimination
provision] by preventing an employer from interfering (through retaliation) with an
126
Case: 16-16850 Date Filed: 07/29/2020 Page: 127 of 150
employee’s efforts to secure or advance enforcement of [Title VII’s] basic
guarantees.” Id. So the Supreme Court has explained that Title VII’s antiretaliation
provision’s “primary purpose” is “maintaining unfettered access to statutory
remedial mechanisms.” Id. at 64 (cleaned up). This “primary purpose” obviously
becomes especially important where, as Gogel alleges here, an employer refuses to
internally address an employee’s discrimination claims and even engages in
affirmative acts to obstruct Title VII compliance.
As for “the need to protect individuals asserting their [Title VII] rights,” Gogel
exercised both her opposition and participation rights under Title VII. In Section I
of this dissent, I have catalogued many ways Gogel opposed sex-based
discriminatory conduct at KMMG, as well as the way Gogel participated in the
EEOC process herself. In conducting the Rollins balancing, we must consider all
this conduct. And we must account for it against the background of the Rollins test’s
first consideration—the purpose of the statute.
So we must look at Gogel’s efforts to secure “a workplace where individuals
are not discriminated against because of their . . . gender-based status.” See
Burlington N., 548 U.S. at 63. When we do that, we see that for nearly three years,
Gogel engaged in effort after effort through KMMG, and through Jackson in
particular, to remedy rampant sex discrimination—all to worse than no avail.
Instead of achieving parity for women, Gogel’s antidiscrimination efforts brought
127
Case: 16-16850 Date Filed: 07/29/2020 Page: 128 of 150
her retaliation. Finally, after witnessing “other women experiencing significant
damage to their careers and [seeing] the same thing coming for [her]self, and [she]
couldn’t protect them and [she] couldn’t protect [herself], and the people that [she]
reported to either could not or would not protect [them],” Gogel decided she had to
seek assistance from the Equal Employment Opportunity Commission. ECF No.
117 at 52(208). Put simply, Gogel filed an EEOC charge and, assuming KMMG’s
version of the story, advised Ledbetter to do the same, only after KMMG fully
frustrated Gogel’s nearly three years of efforts to obtain KMMG’s compliance with
Title VII.
We consider this evidence, too, when we evaluate “the employer’s legitimate
demands for loyalty, cooperation and a generally productive work environment.” As
the formulation of this factor suggests, it requires us to identify KMMG’s demands
for loyalty, cooperation, and a generally productive work environment and assess
whether, in the context of the facts Gogel alleges, they were “legitimate.”
KMMG claims that it fired Gogel because “one could conclude that [she]
encouraged or even solicited” Ledbetter to file her EEOC charge and that “there
[was] an appearance of a conflict of interest sufficient to cause [KMMG] to lose
confidence in the loyalty and trust that [was] required by [her] position.” ECF No.
120 at 138. And as Jackson put it, “the role of the Team Relations Manager is not
128
Case: 16-16850 Date Filed: 07/29/2020 Page: 129 of 150
to solicit, encourage other team members to file a lawsuit. It’s to encourage and
problem solve to prevent team members from filing a lawsuit.” Id. at 70(273).
It is certainly legitimate and reasonable for a company that seeks in good faith
to comply with Title VII to expect its professionals who are responsible for assisting
in the handling of Title VII complaints to avoid suggesting to employees that they
file EEOC charges.
But that, of course, assumes that the company makes a good-faith effort to
comply with the law under Title VII. 10 It should go without saying that a company’s
demands for “loyalty” and “cooperation” are not “legitimate” if the company uses
its Title VII professionals to subvert the law and to quash legitimate discrimination
complaints without remedying them. In that environment, a company’s demands for
“loyalty” and “cooperation” must not be blindly deferred to. And nothing in our
precedent suggests otherwise. Rather, as the Rollins test itself indicates, if a
company, in bad faith, routinely frustrates its Title VII professional’s efforts to
resolve other employees’ potentially legitimate discrimination complaints within the
company, at some point it becomes reasonable for that Title VII professional, whose
10
The Majority Opinion finds this notion to be “grudging.” Maj. Op. at 38. It’s not clear
to me what is “grudging” about the recognition that an employer legitimately expects loyalty from
its employees when it comes to Title VII claims only when that employer does not act in bad faith
and does not affirmatively try to obstruct Title VII compliance.
129
Case: 16-16850 Date Filed: 07/29/2020 Page: 130 of 150
ultimate fidelity must be to the law, to direct a complaining employee to statutory
avenues outside the company for possible relief.
On this record, a jury should have had the opportunity to evaluate whether
that point had come at the time that Gogel allegedly advised Ledbetter to file an
EEOC charge. Otherwise, an employee who finds herself in this position has only
one choice if she wants to keep her job: to continue assisting the company in running
roughshod over its employees’ rights, in violation of the law. Under Payne and its
progeny, that is plainly wrong.
D. Because the Majority Opinion does not abrogate Payne, the Majority
Opinion is bound by Payne’s holding that the determination of
whether otherwise-protected conduct remains protected conduct on a
given record presents an issue of fact, unless it is clear as a matter of
law that the conduct is unprotected
The Majority Opinion makes no secret that this part of our precedent gives it
a headache; it tries everything in the book to rid itself of Payne and its clear meaning.
But not one of the Majority Opinion’s efforts to render itself Payne-free succeeds.
First, the Majority Opinion attempts to characterize the noted quotations from
Payne as “arguably dicta.” See Maj. Op. at 41 & 41 n.20. As the Majority Opinion’s
use of the modifier “arguably” begins to betray, though, the Payne quotations are
nothing of the sort.
In Payne, the employer, for the first time on appeal, asserted that the
employee’s conduct was not “protected activity” under Title VII. 654 F.2d at 1144.
130
Case: 16-16850 Date Filed: 07/29/2020 Page: 131 of 150
Observing that it could consider the employer’s contention for the first time on
appeal if the employer raised a question of law, the Old Fifth Circuit set about
determining whether the question of whether an employee’s conduct fails to qualify
as protected Title VII activity raises an issue of law or fact. Id. at 1145. The Court
concluded that “[a]t least where conduct is not unprotected as a matter of law,” the
issue raises a question of fact. Id. at 1146. For that reason, our predecessor Court
held that it could not consider for the first time on appeal whether the employee’s
conduct constituted protected activity. Id.Obviously, the holding that whether conduct is protected activity states a
question of fact, not law, was critical to the Court’s holding that it could not address
the employer’s argument brought for the first time on appeal. By definition, then, it
was not dicta. See United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009)
(“[D]icta is defined as those portions of an opinion that are not necessary to deciding
the case then before us.” (citation and internal quotation marks omitted)).
Second, the Majority Opinion engages in a half-hearted effort to materially
distinguish Payne from Gogel’s case. See Maj. Op. at 41. In support of this effort,
in its entirety, the Majority Opinion asserts, “In contrast with Gogel, there was no
contention in Payne that, had he been rehired, the plaintiff’s picketing activity while
not employed with the company would so interfere with the performance of his job
131
Case: 16-16850 Date Filed: 07/29/2020 Page: 132 of 150
duties as a seasonal laborer that it would render him ineffective in that position . . . .”
Maj. Op. at 41.
But Payne stands for only the proposition that whether an employee’s conduct
is protected presents a question of fact unless, as a matter of law, it is clear that the
employee’s conduct is not protected. To go that next step and actually determine
whether an employee’s Title VII conduct, in the circumstances of a given case, is
unprotected as a matter of law, we must employ Rollins’s balancing test (as I have
done above). Because the Majority Opinion fails to do that, its effort to distinguish
Payne is a lot like deciding the winner of a team relay race by looking at only the
first leg of the race. Instead of applying the multipart Rollins balancing test that
governs the protected-activity determination, the Majority Opinion’s doomed effort
to distinguish Payne considers only KMMG’s demands for loyalty and just assumes
they were “legitimate.” That analysis ignores the legitimacy inquiry, as well as
Rollins’s other two factors—the purpose of Title VII and the employee’s interest in
engaging in protected activity. The Majority Opinion cannot distinguish Payne by
refusing to apply the governing Rollins test to Gogel’s evidence.
Third, the Majority Opinion mischaracterizes my description of Payne’s rule
as being “that summary judgment could never be warranted on the question whether
particular conduct was protected.” Maj. Op. at 41. That simply isn’t so. Indeed, as
I have noted multiple times in this dissent, it is clear that Payne authorizes summary
132
Case: 16-16850 Date Filed: 07/29/2020 Page: 133 of 150
judgment when the employee’s otherwise-protected conduct, as a matter of law, does
not qualify on a given record as protected Title VII conduct. 654 F.2d at 1145-46.
The problem for the Majority Opinion here is that that is not the case.
Finally, apparently sensing that its other efforts to kill the Payne precedent
cannot carry the day, the Majority Opinion resorts to the tired, old parade of
horribles, claiming that I “argue[] that whenever a plaintiff HR manager with job
responsibilities like Gogel’s abandons those responsibilities because she finds fault
with the employer’s decisions and is then terminated, the balancing test . . . requires
that the judicial decision-maker determine whether the manager should nonetheless
be given a pass and allowed to remain in her job.” Maj. Op. at 38–39. This
contention of the Majority Opinion’s is so misleading that it’s hard to know where
to begin.
So I will start where the Majority Opinion does. It calls the application of
Payne’s rule and Rollins’s longstanding balancing test an “exception” I “craft[ed]”
to the Majority Opinion’s rule and my “new test.” Maj. Op. at 38, 42. If that’s how
the Majority Opinion wants to characterize strict application of our binding
precedent as it is written, I’ll freely concede I’m guilty.
Regardless of the nomenclature, my so-called “new test” and “craft[ed]”
“exception” simply apply Rollins’s balancing test. And when doing so reveals that
we cannot conclude that, under the particular circumstances of this case, Gogel’s
133
Case: 16-16850 Date Filed: 07/29/2020 Page: 134 of 150
alleged conduct was unprotected as a matter of law, I merely recognize pursuant to
Payne’s rule that the issue is one of fact that we must leave to the factfinder.
By contrast, as I have explained, the Majority Opinion makes no effort
whatsoever to actually apply Rollins’s considerations of whether the employer’s
demands for loyalty are legitimate. Nor does it consider the employee’s interest in
engaging in Title VII protected activity or the purposes of Title VII’s retaliation
provision.
Even the most attentive reader who engages in the deepest scouring of the
Majority Opinion in search of these things comes up empty-handed. Instead,
ignoring ample evidence to the contrary, the Majority Opinion just assumes that
KMMG’s demands for loyalty were “legitimate” and ends its analysis there.
Applying that “test,” it’s no wonder the Majority Opinion reaches the conclusion it
does. But make no mistake about it—the Majority Opinion does not apply our
precedent. Not only does the Majority Opinion’s one-factor “test” violate Rollins,
it also transgresses the most basic principle of summary judgment: we view the
evidence in the light most favorable to the non-moving party.
Here, Gogel presented a mountain of evidence that, if believed, clearly
demonstrates that KMMG acted in bad faith when it came to Title VII. To briefly
review, according to that evidence, Jackson, KMMG’s chief administrative officer,
instructed Gogel (a human-resources official who, according to KMMG, was
134
Case: 16-16850 Date Filed: 07/29/2020 Page: 135 of 150
responsible for addressing Title VII issues) not to investigate reported violations of
KMMG’s own Title VII policy; then, after she began to do so because Kim told her
to investigate (but only the subordinate, not Kia’s president), Kim backtracked and
told her to destroy all records of her investigation; and Jackson consistently directed
Gogel to accept and even embrace KMMG’s regular violations of Title VII,
including things like asking people’s ages, encouraging a “[p]atriarchal” hierarchy,
hiding the supposedly “unattractive” female employees, and on and on.
Despite all this evidence, the Majority Opinion’s legal analysis mentions not
a single word about it. Instead, the Majority Opinion completely ignores the
evidence and simply chooses to credit KMMG’s claim that its demands for loyalty,
under the circumstances, were “legitimate.” Perhaps that is because it is impossible
to conclude, as a matter of law, that KMMG’s demands for loyalty, under the
circumstances, were “legitimate,” if we credit Gogel’s evidence of KMMG’s bad
faith, as we must under the summary-judgment standard.
Pouring more rain on the Majority Opinion’s parade of horribles is the fact
that our own precedent shows that there is nothing unmanageable about actually
applying the Rollins balancing-test components. As I have noted, Hamm, which the
Majority Opinion relies on to suggest that we do not consider the legitimacy of the
employer’s demands for loyalty, see Maj. Op. at 30–31, shows that, in fact, we do,
135
Case: 16-16850 Date Filed: 07/29/2020 Page: 136 of 150
and we have—even since before Rollins neatly bundled the balancing considerations
into its test.
Nearly forty years have passed since Hamm. And in that time, it does not
appear that we have had a single case (other than this one)—precedential or not—
where a human-resources employee attempted to demonstrate that her otherwise-
protected Title VII conduct survived Rollins’s balancing test on summary judgment
because of significant evidence that the employer acted in bad faith and flouted its
Title VII responsibilities. That readily demonstrates, contrary to the Majority
Opinion’s argument, see Maj. Op. at 38–39, that adhering to the Rollins balancing
test does not result in a free-for-all for human-resources employees where they will
necessarily be able to avoid summary judgment and go to trial. Rather, when faced
with an employer’s demands for loyalty, a human-resources employee who engages
in otherwise-protected conduct may survive summary judgment only by presenting
sufficient evidence to create a material issue of fact over whether the employer’s
demands for loyalty were legitimate. And as Hamm demonstrates, that can be done
if the evidence, construed in the employee’s favor, shows that the employer
exercised bad faith in applying its Title VII obligations and actively worked to
circumvent the law’s protections.
136
Case: 16-16850 Date Filed: 07/29/2020 Page: 137 of 150
E. The Majority Opinion’s refusal to apply Rollins and Payne rewards
and emboldens employers who, in bad faith, routinely obstruct Title
VII compliance
Here, the Majority Opinion never actually conducts the balancing that Rollins
requires. So it incorrectly fails to recognize Payne’s requirement that a jury must
determine whether, on this record, Gogel engaged in protected activity when she
allegedly advised Ledbetter of her right to file an EEOC charge. As a result, the
Majority Opinion further aids KMMG in skirting the boundaries of Title VII yet
again.
Worse yet, the Majority Opinion’s new rule essentially ensures that Gogel and
thousands of human-resources personnel like her must forgo the protections of Title
VII if they dare to mention Title VII’s statutory remedies to other employees—no
matter how much bad faith their employers may engage in when it comes to Title
VII compliance.
Payne, Rollins, and their progeny understood the problems inherent in the
Majority Opinion’s one-factor test. That’s why they imposed a balancing test that
accounts for the purpose of Title VII, the employee’s interests in exercising her Title
VII rights, and the employer’s legitimate interests in loyalty and that defers to the
factfinder in all but the few cases where this balancing concludes, as a matter of law,
that the employee’s activities were not protected. In reaching a contrary conclusion
137
Case: 16-16850 Date Filed: 07/29/2020 Page: 138 of 150
today, the Majority Opinion forsakes Title VII and our binding precedent. I cannot
agree.
III.
Not only does the Majority Opinion fail to follow our substantive precedent
on Title VII, it also ignores Gogel’s actual claim. Indeed, even if we assume that a
human-resources employee’s advice to another employee about her Title VII options
could never constitute protected Title VII conduct on any record, this section
demonstrates that Gogel submitted sufficient evidence that, when viewed in the light
most favorable to her as the non-moving party, establishes a genuine issue of
material fact concerning whether KMMG’s stated reason for firing Gogel was
pretextual.
As I have mentioned, the Majority Opinion fails to analyze Gogel’s actual
retaliation claim. In fact, the Majority Opinion admits that in its analysis of Gogel’s
alleged retaliation claim, it does not account for Gogel’s opposition conduct and
instead considers only her participation conduct in the form of filing her November
10, 2010, EEOC charge. See Maj. Op at 28 n.18 (“Our dissenting colleague . . .
faults us for limiting ourselves to consideration of Gogel’s filing of the first EEOC
Charge and for failing to consider whether one could infer that Kia fired Gogel
because of her prior complaints concerning perceived mistreatment of herself and
others.”). But Gogel’s Title VII retaliation claim is based on the premise that
138
Case: 16-16850 Date Filed: 07/29/2020 Page: 139 of 150
KMMG retaliated against her for both her opposition conduct and her filing of an
EEOC charge. Gogel’s complaint and her briefing in the district court and here
plainly show that.11
Yet despite Gogel’s clear and repeated assertions that she based her retaliation
claim on both participation and opposition conduct, the Majority Opinion insists that
Gogel alleged KMMG retaliated against her solely because she filed her November
10, 2010, EEOC charge. See Maj. Op. at 28 n.18. Not acknowledging and analyzing
11
First, Gogel’s EEOC retaliation charge asserted that she believed she had been “retaliated
against due to [her] opposition to acts made unlawful by Title VII . . . .” ECF No. 118 at 27
(emphasis added). Second, when she filed her complaint in this case, Gogel alleged in her
retaliation claim that KMMG’s “retaliation against [Gogel] was on account of her participation in
the EEOC charge filing process and because of her opposition to discrimination . . . .” ECF No.
19 at ¶ 63 (emphasis added). Third, Gogel continued to press her retaliation claim based on both
participation and opposition conduct when, in the district court, she opposed KMMG’s motion for
summary judgment. In her brief in opposition, for example, Gogel argued both that she “[e]ngaged
in [p]rotected [e]xpression [u]nder Title VII [w]hen [s]he [f]iled an EEOC [c]harge . . .” and that
she “[e]ngaged in [p]rotected [e]xpression [u]nder Title VII [w]hen [s]he . . . [m]ade [o]ther
[c]omplaints on [b]ehalf of [o]thers . . . .” ECF No. 101 at 6, 7 (emphasis added); see also id. at
10-12 (discussing Gogel’s complaints to Jackson about not being made a head of department), 13-
17 (discussing some of Gogel’s numerous complaints to Jackson about discriminatory conduct
against Gogel and others), 21 (describing her “protected activities” as “informal complaints of
discrimination to Jackson and the filing [of] an EEOC Charge”) (emphasis added). And fourth,
Gogel maintained this position in her en banc briefing, again contending that “she engaged in
protected conduct when she: internally complained in September and October 2010 about
personally suffering from discrimination in the workplace [as] well as opposing the continued
discriminatory treatment of other employees; filed a Charge of Discrimination with the EEOC . .
. .” Gogel’s Initial Br. at 24 (emphasis added). She further specified in her brief what she meant
by her opposition conduct with a summary of numerous complaints she had made to Jackson about
discrimination against her and others at KMMG. See id. at 4-11. Referring to her filing of an
EEOC charge after her history of opposing KMMG’s sexist treatment, Gogel explained her
argument as follows: “[a] jury could find her protected speech was the straw that broke the camel’s
back . . . .” Id. at 25. In other words, Gogel argued that her termination was retaliation for a long
list of opposition activity Gogel engaged in, capped off by her participation conduct in filing her
EEOC charge.
139
Case: 16-16850 Date Filed: 07/29/2020 Page: 140 of 150
the retaliation claim that Gogel actually brought 12 certainly makes it easier for the
Majority Opinion to find that summary judgment was appropriate here. But the
Majority Opinion’s wishful interpretation of Gogel’s retaliation claim does not
comport with reality. And analyzing Gogel’s actual retaliation claim requires
vacatur of summary judgment.
Beginning with Gogel’s prima facie case, as I have noted, Gogel alleged that
she engaged in Title VII-protected opposition and participation activity. I have
previously described some of that activity in Section I, supra. For convenience, I
briefly summarize that evidence: Gogel asserted that during her nearly three-year
tenure with KMMG, she opposed discriminatory practices against her when she
complained to Jackson that KMMG and Jackson discriminated against her on the
basis of sex by refusing to elevate her to head of department (even though it elevated
all similarly situated men), by downwardly adjusting her evaluation, by excluding
her from meetings her duties required she attend, by prohibiting her from speaking
at meetings (where her male subordinates were permitted to talk), by prohibiting her
from investigating complaints of discrimination (when doing so was part of her job),
12
In the second part of footnote 18 of the Majority Opinion, in three sentences, the Majority
Opinion alternatively dismisses the notion that Gogel’s opposition conduct would change the
analysis. That alternative “analysis” improperly assumes that KMMG actually believed that Gogel
had solicited Ledbetter to sue it. See Maj. Op. at 28 n.18. But as this section of the dissent shows,
that is the very claim over which a material dispute of fact exists.
140
Case: 16-16850 Date Filed: 07/29/2020 Page: 141 of 150
and by otherwise rendering her impotent to address discrimination at KMMG
(though her duties anticipated that she do so).
Gogel further explained that she consistently opposed discriminatory
practices against others at KMMG by continually reporting them to Jackson. As
Gogel described things, she complained time after time to Jackson about the
pervasive acts of sex discrimination against women at KMMG, some of which I’ve
summarized in Section I, supra.
Only after trying to achieve internal resolution with KMMG of her personal
complaints and the complaints of others for nearly three years and seeing no interest
on KMMG’s part in abiding by Title VII did Gogel determine that her only
alternative was to file a charge with the EEOC. All this conduct—both the
opposition and the participation activity—qualifies under Title VII as protected
activity. See 42 U.S.C. § 2000e-3(a).
Turning to the second component of a prima facie case of retaliation (the
employer took adverse action against the plaintiff), for Gogel’s efforts to remedy
allegedly rampant discrimination at KMMG, Gogel endured Jackson’s repeated
denials of her requests to be elevated to head of department, Jackson’s decisions to
exclude her from meetings, Jackson’s instruction to her that she not speak at
meetings, Jackson’s suggestion that she try to reobtain her former employment,
Jackson’s open announcement that she had filed an EEOC claim, Jackson’s
141
Case: 16-16850 Date Filed: 07/29/2020 Page: 142 of 150
placement of Gogel on administrative leave, and ultimately, Jackson’s termination
of Gogel’s employment at KMMG. This evidence satisfies the requirement that
Gogel demonstrate KMMG took adverse action against her. 13
As for the third prong of Gogel’s prima facie case, Gogel identified sufficient
evidence to establish a causal connection between her protected activity and her
termination. Gogel alleged that, even before KMMG terminated her, throughout her
employment, KMMG changed the terms of her employment in response to her
complaints. For example, Jackson’s comment to Gogel about getting her “old job”
back came only after Gogel complained about her treatment and about the treatment
of other women at KMMG. Similarly, though Jackson told her in 2009 that she
would be promoted to head of department for Team Relations in 2010, she wasn’t
after she complained that only men were promoted. And she was suspended and
fired after Jackson loudly complained about her EEOC charge in the office. A
13
Remarkably, to combat the premise that KMMG retaliated against Gogel for filing her
EEOC charge, the Majority Opinion suggests repeatedly that KMMG gave Gogel a “discretionary
bonus” on December 22, 2010. See Maj. Op. at 12, 26, 43. The December 22, 2010, bonus was
KMMG’s Christmas bonus, which it gave to all employees in a predetermined amount, based on
the employee’s position and months of service. See ECF No. 117 at 142. Indeed, the letter
accompanying the bonus stated, “In support of recognizing the results all team members have
achieved on ‘One Team, One System,’ I am proud to announce a Success Sharing Award to all
team members actively employed with KMMG through December 28, 2010.” Id. I suppose
KMMG could have withheld that bonus, but then Gogel would have been the only employee not
to receive it. And that would have provided yet another basis for Gogel’s retaliation claim.
Contrary to the Majority Opinion’s suggestion, KMMG’s decision to refrain from retaliating
against Gogel in this one instance—by giving her a bonus it was literally giving every other
employee—does not somehow prove that KMMG did not retaliate against Gogel. Nor does it
otherwise absolve KMMG of its retaliatory actions, viewed in the light most favorable to Gogel.
142
Case: 16-16850 Date Filed: 07/29/2020 Page: 143 of 150
reasonable jury could infer from this evidence that Jackson was angry about Gogel’s
opposition and participation activity.
Then, just six weeks after Jackson learned of her EEOC charge, on January 7,
2011, Jackson suspended Gogel. 14 He ultimately fired her less than two weeks later,
on January 19, 2011. The totality of these facts creates a reasonable inference that
“the protected activity and the adverse actions were not wholly unrelated,” which is
all that the first step of the McDonnell Douglas framework requires. Jones v. Gulf
Coast Health Care of Del., LLC, 854 F.3d 1261, 1271 (11th Cir. 2017) (citation and
internal quotation marks omitted).
When we look at all these components of a prima facie case of retaliation, we
must conclude that Gogel satisfied her burden to make such a showing.
So the burden of production then shifted to KMMG to come forward with a
legitimate, nondiscriminatory reason for taking adverse action against Gogel.
KMMG asserted that it suspended and fired Gogel because, as Jackson stated in his
letter ending Gogel’s employment, “Based on our investigation, one could conclude
that [she] encouraged or even solicited [Ledbetter’s] filing of [her EEOC] charge.
At the very least, there is an appearance of a conflict of interest sufficient to cause
the Company to lose confidence in the loyalty and trust that is required by [Gogel’s]
14
And considering that KMMG closed its facility from December 23, 2010, through
January 3, 2011, ECF No. 85 at 6, the period between Jackson’s learning of Gogel’s claim and
Jackson’s suspension of Gogel spanned only just over four work weeks.
143
Case: 16-16850 Date Filed: 07/29/2020 Page: 144 of 150
position.” ECF No. 118 at 26. Assuming for purposes of this section (as the
Majority Opinion (incorrectly) concludes) that the actions that Jackson attributed to
Gogel in his dismissal letter could never qualify as protected conduct by a human-
resources employee, Jackson’s statement satisfied KMMG’s burden of production.
As a result, Gogel was entitled to receive “a full and fair opportunity to
demonstrate that [KMMG’s] proffered reason was merely a pretext to mask
[retaliation].” Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). Here, in
support of her assertion of pretext, Gogel submitted evidence that a reasonable jury
could find suggests that Jackson and KMMG did not truly believe that Gogel had
“solicited” Ledbetter to file her EEOC charge when it fired Gogel for that stated
reason.
Besides the evidence I mentioned above that betrays Jackson’s anger with
Gogel for opposing discriminatory practices at KMMG and for filing her own EEOC
charge, Jackson claimed that he conducted an investigation into whether Gogel had
advised Ledbetter to file an EEOC charge, based on statements Williams made to
him on January 4, 2011. ECF No. 85 at 6. But the entirety of Jackson’s
“investigation” consisted of reviewing statements taken from Williams and Paul
144
Case: 16-16850 Date Filed: 07/29/2020 Page: 145 of 150
Grimes on January 5, 2011. See ECF No. 120 at 73(285-87); ECF No. 119 at 98;
ECF No. 123 at 153.15
Before I address this point further, I want to be clear: contrary to the Majority
Opinion’s contention, my point is not that Jackson conducted an investigation that
was not sufficiently “thorough.” See Maj. Op. at 55 n.25. Rather, for the reasons I
describe below, a reasonable jury could conclude on this record that Jackson never
set out to and did not actually conduct a bona fide investigation at all but rather went
through the motions to provide cover for his real reason for firing Gogel: her Title
VII opposition and participation conduct. Another matter of appearances.
At the time of the “investigation,” more than ten people other than Williams
and Grimes worked in Team Relations—not to mention the numerous other KMMG
employees who worked outside Team Relations. See ECF No. 117 at 21(83-84).
Yet Jackson and KMMG spoke with none of them to check on Williams’s and
Grimes’s allegations.
15
In his deposition, Jackson also claimed that he based his decision on “e-mails” and
“checking . . . with [Gogel’s] computer and [Ledbetter’s] computer.” ECF No. 120 at 73(287).
He provided no further elaboration. And curiously, among the numerous exhibits KMMG filed in
support of its motion for summary judgment—including Jackson’s deposition and some selected
exhibits to his deposition—it did not file any emails or documentation from Gogel’s or Ledbetter’s
computer that in any way suggested that Gogel had ever discussed EEOC charges with Ledbetter,
let alone advised her to file an EEOC charge. Because we must view the record in the light most
favorable to Gogel, and because Jackson provides no indication of what was allegedly in these
mysterious and missing emails, and because I cannot review supposed emails and computer
records that do not appear to exist, I do not consider them.
145
Case: 16-16850 Date Filed: 07/29/2020 Page: 146 of 150
In the run-of-the-mine case, this fact might not be unusual. But it turns out
that Jackson was “close” with Grimes and Williams. ECF No. 119 at 30(115-16);
Id. at 99. In fact, Jackson socialized outside work with Williams and Grimes, who
themselves shared an apartment from 2008 until after Gogel was fired. Id. at 30(115-
16), 99, 25(96). Not only that, but after he fired Gogel, Jackson made Williams the
Acting Manager of Team Relations, then the Manager of Team Relations, and
ultimately, the Head of Department of Team Relations. He similarly elevated
Grimes to Manager of Team Relations when he made Williams the Head of
Department. Plus, Williams testified that he was always concerned about being fired
by Jackson and did not want to make Jackson mad because “[t]hat wouldn’t be
healthy.” ECF No. 123 at 47(183).
Williams’s suggestion that Jackson could be vengeful when angry further
raises questions about Jackson’s true motivation in terminating Gogel. But aside
from that, in short, Williams and Grimes had many reasons to go along with Jackson
and any scheme he might have cooked up.
And Williams’s related actions also show that he was not in pursuit of the
truth. Williams was the one who met with Ledbetter soon after Gogel’s dismissal to
try to get Ledbetter to falsely implicate Gogel in encouraging Ledbetter to file her
EEOC charge. When Ledbetter refused, Williams essentially bullied her, calling
146
Case: 16-16850 Date Filed: 07/29/2020 Page: 147 of 150
Ledbetter disloyal to KMMG, in a bid to convince Ledbetter to drop her EEOC
charge.
Yet other reasons that involve Williams could cause a reasonable jury to find
Jackson’s story suspect. Williams told Jackson in January 2011 that Ledbetter had
confided in him several times, starting as early as the beginning of November 2010,
that Gogel was the “ringleader” for Gogel’s, Tyler’s, and Ledbetter’s decision to
take legal action, that Gogel and Tyler frequently met with and encouraged Ledbetter
to sue KMMG, and the three coordinated by using the same lawyer. 16 Maj. Op. at
13–14; see also ECF No. 123 at 151 ¶¶ 28, 29; id. at 153. Williams also testified
that, as a member of Team Relations, one of his responsibilities was to help team
members “stay out of legal situations and try to resolve problems prior to them
getting that bad.” Id. at 34(132). Indeed, as the Majority Opinion emphasizes,
Williams was very insistent about this: he said, “I mean you don’t go to a doctor to
get leukemia. We’re the people that’s [sic] supposed to keep lawsuits from
happening.” Maj. Op. at 46.
But despite Ledbetter’s supposed repeated confessions throughout November
and December to Williams that Gogel and Tyler were soliciting her to sue the
16
These statements come from Williams’s deposition, which was taken on August 20,
2015, four-and-a-half years after the purported events Williams described. See ECF No. 123 at
50(193-95), 52(202). But when we look at the notes Webb took of the January 5, 2011, meeting
with Williams, they do not state that Williams reported that Ledbetter had told him that Gogel was
the leader or a catalyst for Ledbetter’s decision to file an EEOC charge. See ECF No. 123 at 153.
Rather, they say that Williams “felt that [Gogel] was the catalyst for the trio of charges.” Id.
147
Case: 16-16850 Date Filed: 07/29/2020 Page: 148 of 150
company, ECF No. 123 at 151 ¶¶ 28, 29; id. at 153, and despite his own supposed
observations of Gogel, Tyler, and Ledbetter inexplicably meeting frequently during
this same period, Williams ignored his self-stated job responsibilities for two
months—until January 2011—before filling his “close” friend Jackson in on the
news.
A reasonable jury could easily conclude that Williams’s version of events—
one where Williams ignored the very job responsibilities that Gogel was fired for
supposedly ignoring—was suspect. The story becomes all the more so when we
consider Williams’s and Grimes’s relationship with Jackson and their subsequent
promotions.
Besides all this, when Jackson asked Gogel whether she had colluded with
Ledbetter, Gogel expressly denied having done so. In fact, she provided documents
from the meetings where she was accused of having conspired with Ledbetter,
showing that she met with Ledbetter for work-related reasons. And Gogel offered
innocent explanations for all the conduct that Jackson asked her about. If Jackson
had any interest in performing a bona fide investigation, there were several other
members of Team Relations that Jackson apparently did not socialize with whom he
could have asked about Gogel. He didn’t.
Instead, claiming to rely on his buddies’ stories, Jackson decided to go ahead
and put Gogel on administrative leave pending her dismissal twelve days later.
148
Case: 16-16850 Date Filed: 07/29/2020 Page: 149 of 150
Notably, in firing her, Jackson—who holds a juris doctor legal degree, ECF No. 120
at 6(17)—painstakingly wrote that “one could conclude that [Gogel] encouraged or
even solicited the filing of [Ledbetter’s discrimination] charge.” Perhaps tellingly,
he did not state that he or KMMG actually believed that Gogel had engaged in such
activity. But “one could conclude” lots of things—including that “one’s” buddies
wanted promotions enough to help Jackson get rid of Gogel.
Strangely enough, Jackson also accused Gogel of failing to investigate claims
of discrimination that were made to her. For example, on the form entitled
Employer’s Information on Discharge for Failure to Obey Orders, Rules or
Instructions or Failure to Perform the Duties for Which Hired, Jackson answered the
question, “Explain in detail the effect the employee’s actions had on your business,”
with, in its entirety, “Exposed KMMG to potential liability by failing to properly
investigate claims and failure to properly record efforts to investigate/resolve
problems.” ECF No. 120 at 141.
A reasonable jury might not miss the irony in Jackson’s accusation, given that
the record (when viewed in the light most favorable to Gogel) shows that Gogel took
numerous reports of discrimination to Jackson seeking remedy, and he is the one
who did nothing, or worse. Indeed, Jackson went so far as to forbid Gogel from
investigating the alleged relationship between Kia’s president and a subordinate,
even though such a relationship would violate KMMG’s antiharassment provision.
149
Case: 16-16850 Date Filed: 07/29/2020 Page: 150 of 150
So a jury could conclude that, conveniently for Jackson and KMMG, they got rid of
an employee who complained about discrimination while simultaneously creating a
scapegoat for their own refusal to address the company’s rampant and
institutionalized sex discrimination.
In short, there is enough evidence on this record from which a reasonable jury
could find that when Jackson claimed to fire Gogel because she allegedly instructed
Ledbetter to file an EEOC charge against KMMG, he did not really believe that she
had done so. Instead, a reasonable jury could conclude that Jackson, Williams, and
Grimes worked together to doctor up the charge as a pretext for retaliating against
Gogel for exercising her Title VII participation and opposition rights. Because the
record supports that reasonable inference, we may not, as the Majority Opinion does,
ignore it and just take Jackson’s story at face value.
IV.
Either way we look at it—under our binding case law or under the Majority
Opinion’s retcon interpretation of it—this record, when viewed in the light most
favorable to Gogel, establishes a material issue of fact that requires denial of
summary judgment. For these reasons, I respectfully dissent.
150