An HR manager fired shortly after filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) failed to demonstrate that the employer’s stated reason for firing her—recruiting another employee to sue the company—was a pretext to mask a retaliatory motive, the 11th U.S. Circuit Court of Appeals decided.
The en banc court ruled that the plaintiff failed to show that a reasonable jury could find that she would not have been fired if she hadn’t filed the EEOC charge.
The female plaintiff managed Team Relations—the half of the HR department that handled and investigated employee allegations of harassment and discrimination—for a subsidiary of the Korean Kia Motors Corp., in West Point, Ga. The other half of the department, known as “HR,” dealt with issues such as hiring and payroll and was managed by a male colleague.
In early 2009, the plaintiff’s male colleague was named head of department (HOD) over both Team Relations and HR. The plaintiff met with her senior manager to state her objections to not having been given an HOD designation for Team Relations, explaining that she believed she had not been given the title because the company discriminated against women.
In October 2010, the plaintiff met with the senior manager to discuss a report of managerial concerns that had been compiled at the senior manager’s request and that included concerns she had expressed to him throughout 2009 and 2010. Requesting reassurance that her comments would not lead to retaliation, she reiterated her concerns about sex discrimination at the company. The plaintiff answered questions until the senior manager ended the meeting. She agreed to answer any additional questions but never received any further communication from him.
Several weeks later, she was informed that the matter was closed due to her lack of cooperation. In an e-mail to the senior manager, Kia’s general counsel and the HR HOD, the plaintiff disputed the characterization that she was uncooperative and noted that the manager had failed to follow up with additional questions. She requested an independent investigation.
The plaintiff filed her first charge with the EEOC in November, alleging that she was not awarded an HOD designation due to gender and national origin discrimination. Soon after, the HR HOD also filed a charge with the EEOC alleging national origin discrimination and retaliation.
On Dec. 3, the plaintiff and the HR HOD were asked to sign agreements promising not to misuse their positions in their continuing interactions with employees. The plaintiff was put on administrative leave until she signed it on Dec. 6. On Dec. 22, the senior manager told her she was doing a good job and gave her a discretionary $12,000 bonus.
The following day, the senior manager learned that a female employee had filed an EEOC complaint asserting a claim of discrimination based on her sex, national origin and race. When he noticed her charge was faxed from the same law firm that was handling the plaintiff’s and the HR HOD’s complaints, he alerted Kia’s president that it appeared the two were recruiting other employees to sue the company.
The senior manager’s concerns were reinforced when the plaintiff’s assistant manager reported that he had observed her and the HR HOD meeting frequently and at length with the complainant. The assistant manager said the complainant had told him that they were actively encouraging her to sue Kia, that they were using the same lawyer and that the plaintiff was the leader of these efforts. A second manager also noticed frequent meetings between the plaintiff, the complainant and the HR HOD.
On Jan. 6, 2011, the HR HOD was terminated for downloading dozens of Kia documents to his personal computer in violation of the agreement he had signed in December.
The senior manager and general counsel met with the plaintiff on Jan. 7 and asked whether she had colluded with the complainant in violation of the agreement she signed. She denied having done so. Nonetheless, her employment was terminated Jan. 19.
Following her termination, the plaintiff filed a second EEOC charge alleging that Kia had discharged her in retaliation for encouraging another employee to file an EEOC charge. After receiving a right to sue notice from the EEOC, she sued in federal court.
The district court granted summary judgment in favor of Kia, finding that the company did not fire the plaintiff in retaliation for conduct protected by Title VII of the Civil Rights Act of 1964, 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.
The district court sided with Kia on all claims. On appeal, an 11th Circuit panel affirmed the district court’s holding on the discrimination claims but reversed its grant of summary judgment on the retaliation claims. The court granted rehearing en banc to consider whether the district court erred in granting summary judgment on the retaliation claim.
The plaintiff argued that the district court erred for two reasons:
- There was an issue of fact for a jury to decide as to whether the real reason Kia fired her was because she had filed her own EEOC charge, not because she solicited another employee to sue the company.
- Kia’s stated reason for terminating her employment—her alleged solicitation of the complainant—was protected conduct under Title VII.
The plaintiff’s filing of an EEOC charge shifted the burden to Kia to articulate a legitimate, nonretaliatory reason for firing her. Kia responded that it fired her not because she filed an EEOC charge, but because she had recruited another employee to sue the company—conduct Kia believed to have rendered her ineffective in her position as Team Relations manager. The appeals court found Kia’s claim was sufficient to overcome the presumption that the adverse action was retaliation.
The plaintiff then had to demonstrate that Kia’s stated reason was merely pretext to mask its real reason—her filing of an EEOC charge—and that Kia would not have fired her if she hadn’t filed the charge.
The appeals court found that she failed in this. The plaintiff “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,” the court stated.
Noting that Kia did not fire her upon receiving notice of her EEOC charge but awarded her a bonus and told her that she was doing a good job, the court said it was only when Kia learned she had recruited another employee to sue the company that Kia concluded she could no longer function in her highly sensitive position as manager of Team Relations and that she must be discharged.
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Responding to the plaintiff’s alternative argument that even if she had recruited the employee to sue Kia, this wouldn’t have been a legitimate reason for termination because it was protected conduct under Title VII’s opposition clause, the court said that “when the means by which an employee expresses her opposition so interferes with the performance of her job duties that it renders [her] ineffective in the position for which [she] was employed, this oppositional conduct is not protected under Title VII’s opposition clause.”
Concluding that the plaintiff’s actions had rendered her ineffective as manager of the Team Relations department and that her conduct was not protected under Title VII, the court affirmed the district court’s grant of summary judgment.
Judge Charles Wilson, concurring in part and dissenting in part, noted that the plaintiff was terminated just two months after the date Kia received notice of her EEOC charge. “That is surely close enough that a factfinder could infer retaliation,” he said. 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, he added. “The case should have gone to the jury on that basis.”
Gogel v. Kia Manufacturing of Georgia, 11th Cir., No. 3:14-cv-00153 (July 29, 2020).
Professional Pointer: To avoid retaliation charges, employers must be careful in taking adverse employment action against an employee who has engaged in protected conduct under Title VII, especially if the employer’s action occurs soon after the protected conduct.
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.