TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................. ii

STATEMENT OF INTEREST............................................... 1

STATEMENT OF THE ISSUE.............................................. 2

STATEMENT OF THE CASE............................................... 2

A. Statement of the Facts.................................................. 2

B.. Magistrate Report and District Court Decision............. 7

C.. Panel Decision.............................................................. 9

SUMMARY OF THE ARGUMENT.................................... 13

ARGUMENT....................................................................... 14

This Court should reverse summary judgment on Gogel’s retaliation claim.......................................................... 14

A. That Gogel’s position involved managerial or equal employment functions does not alter the retaliation analysis....................................................................... 14

B. The record evidence creates a triable issue on Gogel’s retaliation claim.......................................................... 20

1.. Gogel engaged in protected opposition and participation.......................................................... 20

2.. A reasonable jury could conclude that Kia would not have fired Gogel but for her protected activity....... 23

C. The “honest belief” doctrine does not apply in this case.................................................................................... 26

CONCLUSION.................................................................... 28

TABLE OF AUTHORITIES

CASES

Page(s)

Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253 (11th Cir. 2010)....................................... 28

Bonner v. City of Prichard,

.... 661 F.2d 1206 (11th Cir. 1981) (en banc)........................ 11

Brush v. Sears Holding Corp.,
466 F. App’x. 781 (11th Cir. 2012)........................... 18, 19

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006).......................................................... 17

Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249 (11th Cir. 2012)....................................... 26

Clark v. S. Broward Hosp. Dist.,
601 F. App’x 886 (11th Cir. 2015).............................. 8, 27

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,
555 U.S. 271 (2009)........................................................ 22

DeMasters v. Carilion Clinic,
796 F.3d 409 (4th Cir. 2015)................................ 16, 17, 18

EEOC v. Abercrombie & Fitch Stores, Inc.,
135 S. Ct. 2028 (2015).................................................... 23

EEOC v. Total System Servs., Inc.,
221 F.3d 1171 (11th Cir. 2000)............................ 19, 20, 21

Flowers v. Troup,
803 F.3d 1327 (11th Cir. 2015)....................................... 27

Fogleman v. Mercy Hosp., Inc.,
283 F.3d 561 (3d Cir. 2002)............................................ 23

Gogel v. Kia Motors Mfg. of Ga., Inc.,

.... No. 16-16850, slip op. (11th Cir. Sept. 24, 2018)..... passim

Hamm v. Bd. of Regents,
708 F.2d 647 (11th Cir. 1983)......................................... 11

Heffernan v. City of Paterson,
136 S. Ct. 1412 (2016)............................................... 22, 23

Jefferson v. Sewon Am., Inc.,
891 F.3d 911 (11th Cir. 2018)......................................... 20

Johnson v. Booker T. Wash. Broad. Serv., Inc.,
234 F.3d 501 (11th Cir. 2000)......................................... 20

Johnson v. Univ. of Cincinnati,
215 F.3d 561 (6th Cir. 2000)........................................... 16

Jones v. Flagship Int’l,
793 F.2d 714 (5th Cir. 1986).................................... passim

Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015)...................................... 16, 17

Merritt v. Dillard Paper Co.,
120 F.3d 1181 (11th Cir. 1997).................................. 16, 24

Mulkey v. Bd. of Comm’rs of Gordon Cty.,
488 F. App’x. 384 (11th Cir. 2012)................................. 22

Robinson v. Shell Oil Co.,
519 U.S. 337 (1997)........................................................ 21

Rollins v. Fla. Dep’t of Law Enf’t,

.... 868 F.2d 397 (11th Cir. 1989).............................. 10, 11, 12

Rosser v. Laborers’ Int’l Union of N. Am., Local No. 438,
616 F.2d 221 (5th Cir. 1980)...................................... 21-22

Taylor v. Runyon,
175 F.3d 861 (11th Cir. 1999)......................................... 24

Trask v. Sec’y, Dep’t of Veterans Affairs
822 F.3d 1179 (11th Cir. 2016)....................................... 20

United States v. Gonzales,
520 U.S. 1 (1997)............................................................ 16

Whatley v. Metro. Atlanta Rapid Transit Auth.,
632 F.2d 1325 (5th Cir. Unit B 1980)........................ 11, 12

STATUTES

42 U.S.C. § 2000e-3(a).................................................. passim

OTHER AUTHORITIES

EEOC Enforcement Guidance on Retaliation and Related Issues,

No. 915.004 (August 25, 2016),

.... https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm ........................................................ 1, 10, 25

Brief for Chamber of Commerce as Amicus Curiae

.... Supporting Appellee,

.... Gogel v. Kia Motors Mfg. of Ga., No. 16-16850.............. 10

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged by Congress with administering and enforcing federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In addition, the Commission has promulgated Enforcement Guidance setting forth its interpretation of the law regarding retaliation and related issues. See EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016) (“Retaliation Guidance”), https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. This appeal presents important issues regarding protected activity under Title VII’s antiretaliation provision, whether employees’ job duties and positions affect the retaliation analysis, and the “honest belief” doctrine. Accordingly, the Commission offers its views to the Court pursuant to Federal Rule of Appellate Procedure 29(a), as it did before the panel.

STATEMENT OF THE ISSUE[1]

Whether the district court erred when it granted summary judgment for Kia Motors Manufacturing of Georgia, Inc. (“Kia”) on Andrea Gogel’s retaliation claim, where Kia fired Gogel after she filed an EEOC charge, and where Kia stated that it fired Gogel because, in the company’s view, she assisted another employee in filing an EEOC charge.

STATEMENT OF THE CASE

A. Statement of the Facts

Andrea Gogel began working at Kia in 2008, as Team Relations Manager. D117, P17, P21. [2] Kia’s Team Relations department is responsible for developing policies and standards that promote a positive work culture. Id. at P22. Most Team Relations investigations address issues such as “attendance problems, falsification of documents, and leaves of absences.” D101-1, P3. Though Team Relations works with Kia’s Legal Department on allegations of discrimination, the Legal Department handles investigations of EEOC charges. D115, P156; D117, P26.

In March 2009, Kia announced organizational changes and named several managers Head of Department (HOD) for their respective departments. D85, P2; D117, P29-31. Kia did not designate Gogel as the HOD for Team Relations, although Gogel “was the senior person of that group,” with three assistant managers as direct reports. D117, P21; D120, P65. Instead, Kia named Bob Tyler, who was the Human Resources Manager at that time, as the HOD for both the Human Resources and Team Relations departments. D117, P25, P29; D121, P62.

Gogel observed that Kia designated all the male senior managers as HODs, and that she was the only senior manager who did not become HOD of her department. D117, P32. Gogel asked her supervisor, Randy Jackson, Kia’s Director of Human Resources and Administration, why Kia had not designated her as the HOD for Team Relations, and Jackson responded, “[I]t’s purely timing.” Id. at P24-26, P29-30. In October 2009, Gogel again complained about her non-promotion to the HOD position, and told Jackson and Tyler that she believed Kia was treating her differently because of her sex. Id. at P47. In 2010, Gogel renewed her complaints about her non-promotion, including at an October 2010 meeting with Jackson, Tyler, and Kia’s in-house counsel, Charles Webb. Id. at P62; D101-1, P8-9; D115, P13. On November 10, 2010, Gogel filed an EEOC charge alleging that Kia discriminatorily denied her the HOD position based on sex and national origin. D117, P137.

Kia received a copy of Gogel’s charge around November 22. D115, P40. Around November 23, two employees, Arthur Williams and Diana Ledbetter, told Gogel that Jackson was “talking about [Gogel’s] EEOC charge in a very loud way in the open office environment.” D117, P50. Ledbetter asked Gogel about the charge and whether she had an attorney. Id. at 52-53; D101-1, P14. Gogel recalled that she had not yet secured representation, but she planned to meet with an attorney and gave Ledbetter that attorney’s name. D117, P252-53. Ledbetter had previously complained of sex discrimination to Gogel and she had shared concerns that her pregnancy would affect her promotion opportunities. Id. at P50-51.

On Friday, December 3, about eleven days after Kia received Gogel’s charge, Kia presented Gogel with a document that sought her agreement to refrain from (1) “discuss[ing] [her] EEOC charge or similar claims” with other employees; (2) “us[ing] [her] position to solicit or influence [other employees] to make claims against [Kia]”; (3) “seeking . . . assistance [from other employees] in any fact finding or any information gathering related to [her] claim against [Kia]”; and (4) making “any . . . statements to [other employees] that malign the company.” Id. at P53; D118, P9. When Gogel explained that she did not feel comfortable signing the document until her attorney reviewed it, she was asked to go home. D117, P53. This amounted to a suspension and marked the first time Gogel received disciplinary action. D115, P39. The following Monday, December 6, Gogel signed the document. D117, P53.

On December 10, Ledbetter filed an EEOC charge through legal counsel. D115, P48, P50. Ledbetter did not tell Gogel about her charge before filing it; instead, Gogel first learned of Ledbetter’s charge through Williams. D101-1, P15-16; D101-2, P4; D117, P50.

On January 4, 2011, Jackson met with Williams, who was one of Gogel’s direct reports. D117, P21; D120, P63. In that meeting, Williams claimed that Ledbetter told him that she was talking with Gogel and Tyler, and that “they were all filing.” D123, P34. According to Ledbetter, however, she “never told [Williams] that all three of us were going to sue the company and had the same attorney.” D101-2, P4. Jackson testified that he became “concern[ed] about [Gogel] meeting with [Ledbetter].” D120, P66. It was specifically Ledbetter’s EEOC charge that prompted Jackson’s concerns about Gogel’s interactions with Ledbetter. Id. (“[W]hen I saw the charge with [Ledbetter], and I saw your firm representing them, I don’t want my manager of my team relations group out soliciting and encouraging other people to file lawsuits; so I had a concern with that.”). Jackson also asked Paul Grimes, another of Gogel’s direct reports, whether he knew anything about Gogel’s EEOC charge. D119, P54.

Kia’s plant was closed for the year-end holidays between approximately December 24, 2010, and January 3, 2011, and Jackson approved Gogel’s request to use three or four days of vacation leave after the plant closure. D120, P58-59, P67. Around December 22, Gogel received a $12,000 bonus, which Jackson had approved. Id. at P59; D117, P47-48. On January 7, less than six weeks after Kia received Gogel’s charge and just over one month after Kia required Gogel to sign the December 6 agreement, Jackson and Webb called Gogel into a meeting, although Gogel was still out of the office on vacation leave. D117, P66; D118, P26; D120, P67. Jackson and Webb told Gogel she had been accused of collusion with Ledbetter, which, they said, violated the December 6 agreement. D117, P66; D118, P26. Jackson and Webb referred to a specific meeting between Gogel and Ledbetter, but Gogel explained that she and Ledbetter had discussed personnel issues related to Kia’s holiday closure at that meeting. D117, P66. At the end of the meeting, Webb asked Jackson what he wanted to do, and Jackson replied, “Well, just to be safe, why don’t we go ahead as planned.” Id. Jackson and Webb suspended Gogel, and Kia’s Safety and Security Manager escorted her out of the building. Id.; D115, P39.

On January 19, less than two months after Kia received Gogel’s charge, Jackson fired Gogel by letter. D115, P41; D118, P26-27. Jackson testified that he made the decision to fire Gogel because he was “totally convinced that [Gogel] had encouraged and solicited other team members to file a lawsuit.” D120, P69-70. As there was no lawsuit at the time, Jackson clarified that he considered the EEOC charge a lawsuit. Id. at P70. Citing the December 6 agreement, the termination letter stated that Gogel had agreed not to solicit or influence team members to make claims against the company. D118, P26. The letter asserted that Kia “received credible reports” that Ledbetter discussed her intention to file an EEOC charge with Gogel and that Gogel did not encourage Ledbetter to complain internally (instead of “externaliz[ing] the complaint”) or notify Kia that Ledbetter was planning to file a charge. Id.

B. Magistrate Report and District Court Decision

The district court granted summary judgment to Kia on Gogel’s Title VII and 42 U.S.C. § 1981 retaliation claims, adopting the magistrate judge’s report and recommendation. D130, P25. The magistrate judge agreed with Kia that (1) the company stated a legitimate “non-retaliatory” reason for firing Gogel (it “lost confidence in [Gogel’s] abilities to perform her job duties after an investigation showed that she had solicited Ledbetter to file a charge”) and (2) Gogel could not establish pretext because she failed to present evidence that Kia did not “honestly believe[] that [Gogel] had solicited Ledbetter.” D125, P61-62, P65-67, P74.

The district court adopted the report. First, the district court rejected Gogel’s objection that Kia’s stated reason for firing Gogel was direct evidence of retaliation. Relying on Jones v. Flagship International, 793 F.2d 714, 728 (5th Cir. 1986), the court concluded that Kia did not terminate Gogel because of her protected activity, but because the company believed that Gogel was no longer fit for her position. D130, P10-11. In the district court’s view, Kia “maintained a good-faith belief that Gogel’s solicitation of Ledbetter critically ‘harm[ed] [Kia’s] posture in the defense of discrimination suits brought against the company.’” Id. at 11 (quoting Jones, 793 F.2d at 728). The court asserted: “Because Kia did not terminate Gogel for engaging in protected activity, there is no direct evidence of . . . retaliation.” Id.

Second, the district court, like the magistrate judge, focused on “whether Kia . . . honestly believed that Gogel had solicited Ledbetter to pursue legal action against [the company].” Id. at 12. The court stated, “Here, Kia believed it was terminating Gogel for an activity that was not considered protected (conduct conflicting with her job duties).” Id. at 13. In holding that there was no evidence of pretext, the court again emphasized that the relevant legal question is “whether [Kia], in good faith, believed the reports of misconduct.” Id. at 18 (quoting Clark v. S. Broward Hosp. Dist., 601 F. App’x 886, 896 (11th Cir. 2015)). Nor was the court able to find “any additional evidence” from which a jury could infer that her termination was retaliatory, although the court acknowledged the close temporal proximity between Gogel’s charge filing and her termination. Id. at 20-22.

C. Panel Decision

A panel of this Court reversed summary judgment on Gogel’s retaliation claim. Gogel v. Kia Motors Mfg. of Ga., Inc., No. 16-16850, slip op. at 2 (11th Cir. Sept. 24, 2018). Judge Julie Carnes dissented. As the panel acknowledged, Title VII prohibits retaliation against an employee who has engaged in protected activity; that is, employers may not retaliate against an employee because she (1) “‘opposed any practice made an unlawful employment practice’ under [the statute]” or (2) “has ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under [the statute].” Gogel, slip op. at 13 (quoting 42 U.S.C. § 2000e-3(a)). The first part of Title VII’s provision defining protected activity is known as the “opposition clause,” while the second part is the “participation clause.” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).

In analyzing Gogel’s protected activity, both the panel majority and panel dissent focused on Gogel’s assistance to Ledbetter and treated Gogel’s conduct as opposition rather than participation. Gogel, slip op. at 14-15, 17; id. at 38 (J. Carnes, J., dissenting). The majority characterized Gogel’s conduct as “provid[ing] Ms. Ledbetter with the name of an attorney whom she was considering hiring for her own EEOC charge.” Id. at 21 (panel majority). The dissent accepted Kia’s view that Gogel “actively solicited Ledbetter” “to file an EEOC charge,” because, the dissent stated, that is “what Kia reasonably believed to be the case when it fired Gogel.” Id. at 35-36 (J. Carnes, J., dissenting).

In contrast to the magistrate judge’s report and the district court’s opinion, the panel decisions centered on whether the “manner” of Gogel’s opposition was “reasonable,” relying on Rollins v. Florida Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989). Gogel, slip op. at 15 (quoting Rollins, 868 F.2d at 401). As the majority explained, this Court assesses whether the manner of opposition was reasonable by balancing “the purpose of the statute and the need to protect individuals asserting their rights [ ] against an employer’s legitimate demands for loyalty, cooperation and a generally productive work environment.” Id. (quoting Rollins, 868 F.2d at 401).[3]

The majority concluded that Gogel’s assistance to Ledbetter qualified as protected opposition. At the outset, the panel majority determined that, under a plain text reading, Title VII’s antiretaliation provision does not exempt managerial or human resource employees. Id. at 17, 25 (quoting 42 U.S.C. § 2000e-3(a)). Next, applying the balancing test articulated in Rollins, the panel majority concluded that the manner of Gogel’s opposition was reasonable. The majority distinguished prior decisions that deemed the manner of opposition conduct unreasonable because employees “alleged[ly] . . . violated their employer’s procedures for reporting complaints,” including Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir. Unit B 1980),[4] Hamm v. Board of Regents, 708 F.2d 647 (11th Cir. 1983), and Jones, on which the district court relied. See Gogel, slip op. at 15-17, 19-20, 24-25. The panel majority concluded that the balancing test favored Gogel, emphasizing that Gogel did not significantly diverge from Kia’s procedures, that Gogel had unsuccessfully attempted to use Kia’s internal procedures to address discrimination complaints, and that any apparent “conflict” between human resource employees’ job duties and their “support[] [for] coworkers’ oppositional conduct” was “overstated.” Id. at 18, 20, 21-22.

The panel dissent disagreed, concluding that Gogel’s assistance to Ledbetter was not protected opposition. Id. at 29-30 (J. Carnes, J., dissenting). The dissent read Whatley, Hamm, Jones, and Rollins as collectively imposing two distinct “tests” for assessing whether “oppositional conduct [has lost] its protection”: (1) where “the method by which the opposition is displayed is unreasonable” and (2) where opposition “so interferes with the performance of the employee’s job duties that it renders the employee ineffective.” Id. at 42. The dissent questioned whether the first “test”—Rollins’s reasonable-manner requirement and balancing inquiry—applies here. See id. at 42, 46. Rollins, the dissent explained, turned on the employee’s “style of complaining . . . rather than the act [of complaining] itself.” Id. at 46 (characterizing plaintiff’s opposition in Rollins as involving numerous “frivolous complaints” asserted in an “insubordinate and antagonistic manner”). However, the dissent explained, “in this case, no one is alleging that, by soliciting Ledbetter’s participation in a lawsuit, Gogel was overtly disruptive or harassing.” Id.

The dissent concluded that, under the second “test”—whether opposition “so interferes with the performance of the employee’s job duties that it renders the employee ineffective”—Gogel’s assistance to Ledbetter was not protected activity “because it so conflicted with her essential job duties that it rendered her ineffective in her position.” Id. at 42-43. The dissent opined that the “act of soliciting another employee to file a claim—when that action violates an essential duty of an employee’s job—is per se unreasonable.” Id. at 46.

The panel majority did not address another form of protected activity: Gogel’s own EEOC charge. The dissent briefly addressed Gogel’s charge, stating that a jury could not find a causal link between Gogel’s charge and her termination because, during the time period between Gogel’s charge and her termination, Jackson authorized Gogel’s vacation leave request and Gogel received a bonus that Jackson had approved. Id. at 43 n.7.

SUMMARY OF THE ARGUMENT

The Commission agrees with the panel majority that the district court erred in granting summary judgment on Gogel’s Title VII retaliation claim. As an initial matter, the majority correctly interpreted the plain text of Title VII’s antiretaliation provision to cover all employees, including those with managerial or human resource responsibilities. As the majority underscored, Title VII prohibits retaliation against “any . . . employee[]” for protected opposition or participation, 42 U.S.C. § 2000e-3(a) (emphasis added), and does not exempt any class of employees from protection.

The record evidence in this case demonstrates that Gogel engaged in protected activity by filing her own EEOC charge and by assisting another employee, Diana Ledbetter, in filing a charge. A reasonable jury could find that Kia fired Gogel because of her assistance to Ledbetter, particularly in light of testimony from decisionmaker Randy Jackson that he fired Gogel for that very reason, and because Jackson’s termination letter relied on Gogel’s alleged “encourage[ment] and solicit[ation]” of Ledbetter to justify Gogel’s termination. Moreover, a jury could reasonably conclude that Kia fired Gogel for filing her own EEOC charge—an issue the panel majority did not reach—given evidence that Kia subjected Gogel to a pattern of retaliation culminating in termination after the company received her charge. Finally, the so-called “honest belief” doctrine does not apply in this case, where Kia’s stated justification for terminating Gogel was her protected activity, not misconduct.

ARGUMENT

This Court should reverse summary judgment on Gogel’s retaliation claim.

A. That Gogel’s position involved managerial or equal employment functions does not alter the retaliation analysis.

At the outset, the panel majority correctly determined that Gogel’s status as a human resource manager did not exempt her from Title VII’s antiretaliation protections because the statutory text covers “any . . . employee[]” and “contains no exception for human resource employees.” Gogel, slip op. at 17, 25 (quoting 42 U.S.C. § 2000e-3(a)). However, despite the statute’s plain text, the district court decision highlighted Gogel’s job duties and her high-level position. See, e.g., D130, P13 (agreeing with the magistrate judge that Gogel’s alleged actions were “sufficient to cause the company to lose confidence in the loyalty and trust of someone in her position”) (emphasis added). In particular, the district court analogized to the Fifth Circuit’s decision in Jones, comparing the Jones employee’s and Gogel’s job duties in concluding that Gogel did not engage in protected activity.[5] Id. at P10-11. If the district court deemed Kia’s stated reason for firing Gogel non-retaliatory because of Gogel’s position as a human resources manager, that was error. Moreover, to the extent the panel dissent’s approach would establish a rule “that a human resource employee’s ‘act of soliciting another employee to file a claim—when that action violates an essential duty of an employee’s job—is per se unreasonable,’” such a rule would undermine Title VII’s protections for “any employee[].” See Gogel, slip op. at 25 (quoting Gogel, slip op. at 46 (J. Carnes, J., dissenting)).

Title VII’s plain language prohibits retaliation against “any . . . employee[]” for protected opposition or participation. 42 U.S.C. § 2000e-3(a) (emphasis added). As the panel majority recognized, this Court has explained that, as used in Title VII’s antiretaliation provision, “the adjective ‘any’ is not ambiguous.” Gogel, slip op. at 17 (quoting Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997)). “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’” Merritt, 120 F.3d at 1186 (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). “‘Congress did not add any language [to Title VII’s antiretaliation provision] limiting the breadth of that word,’ so ‘any’ means all.” Id. (quoting Gonzales, 520 U.S. at 5). That is, the statute’s plain text defining coverage to include “any . . . employees” contains no limiting language “indicat[ing] that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description or that Congress intended to excise a large category of workers from its anti-retaliation protections.” DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015); see also Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (“The plain language of [Title VII’s] opposition clause . . . does not distinguish among entry-level employees, managers, and any other type of employee.”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (Title VII’s opposition clause contains “no qualification on who the individual doing the complaining may be”).

Title VII’s “remedial” purpose and “broad” scope also counsel against denying antiretaliation protections to managerial and human resource employees. Johnson, 215 F.3d at 574, 580 (rejecting the argument that a high level affirmative action official was excluded from Title VII’s antiretaliation protection based on his job duties). Because “the cooperation of employees who are willing to file complaints and act as witnesses” is critical to Title VII’s enforcement, interpretation of the antiretaliation provision “to provide broad protection” helps ensure such reporting. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Exempting individuals with “job duties” and a “position” like Gogel’s would impede employees “from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” DeMasters, 796 F.3d at 422-24 (rejecting the contention that, if counseling and communicating complaints are part of an employee’s regular duties, such an employee does not qualify for protection under Title VII).

Because the text and purpose of Title VII’s antiretaliation provision provide no basis for exempting managers or human resource personnel, “focus[ing] on an employee’s job duties, rather than the oppositional nature of the employee’s complaints or criticisms, is inapposite in the context of Title VII retaliation claims.” Littlejohn, 795 F.3d at 317 n.16. Therefore, the district court’s analogy to Jones was flawed because it “focused on [Gogel’s] job duties.” In Jones, the plaintiff worked as the Manager of Equal Employment Opportunity Programs and her “principal duties” included investigating EEOC charges and defending the employer before administrative agencies. 793 F.2d at 716, 727-29. The Fifth Circuit affirmed the district court’s finding that the employer fired the plaintiff for a legitimate reason—because her conduct, which included initiating a class action lawsuit against the company, conflicted with her job duties. Id. at 717-18, 725-29. To the extent that the district court, in comparing Gogel to the Jones plaintiff, “focus[ed] on [Gogel’s] job duties, rather than the oppositional nature of [her] complaints or criticisms,” that was error. In any event, the facts supporting Gogel’s claims are distinguishable: she was not in charge of equal employment opportunity programming, and Kia’s Legal Department—not Team Relations—directs investigations of discrimination complaints and handles EEOC charges and litigation. A reasonable jury could therefore reject the contention that Kia fired her because she would not be able to function in her role.

Some courts have adopted an exception—known as the “manager rule”—

for managerial or human resource employees under Fair Labor Standards Act’s anti-retaliation provision. DeMasters, 796 F.3d at 422. This Court, in an unpublished, nonprecedential decision, has stated that it “find[s] the ‘manager rule’ persuasive and a viable prohibition against certain individuals recovering under Title VII.” Brush v. Sears Holding Corp., 466 F. App’x. 781, 787 (11th Cir. 2012). However, as explained, Title VII’s plain text and purpose counsel this Court to analyze retaliation claims brought by managerial or human resource employees in the same manner as any other retaliation claim. Significantly, Brush did not analyze Title VII’s statutory text and did not contemplate a per se exclusion of managerial or human resource employees. See id. Additionally, Brush did not acknowledge that the “manager rule” arose in the Fair Labor Standards Act context, and the panel relied on FLSA precedent, not Title VII decisions. See id.

Moreover, Brush is distinguishable. There, the plaintiff’s job duties involved conducting internal investigations, and she asserted that her objections to how the defendant handled an investigation constituted protected activity. Id. at 785-87. The panel held that the plaintiff was simply fulfilling her work duties; that is, her asserted protected activity involved “exactly the type of actions” she would have normally undertaken in her position. Id. at 787. Here, the conduct for which Kia terminated Gogel—filing an EEOC charge and purportedly assisting Ledbetter in filing a charge—fell outside Gogel’s job duties and clearly constituted protected activity.[6]

B. The record evidence creates a triable issue on Gogel’s retaliation claim.

“To establish a claim of retaliation, [a plaintiff] must prove that she engaged in statutorily protected activity, that she suffered [a materially] adverse action, and that . . . ‘[her] protected activity was a but-for cause of the alleged [materially] adverse action.’” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018) (quoting Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016)); id. at 921 (“materially adverse action”). Gogel’s termination was a materially adverse action, id. at 924, and a jury could conclude that Gogel engaged in protected activity that was a but-for cause of her termination.

1. Gogel engaged in protected opposition and participation.

Title VII prohibits retaliation against employees for two types of protected activity: opposition and participation. See 42 U.S.C. § 2000e-3(a); Total Sys., 221 F.3d at 1174. Although the panel majority and panel dissent focused on Gogel’s assistance to Ledbetter when analyzing her protected activity, Gogel also engaged in protected participation when she filed an EEOC charge and she engaged in protected opposition when she repeatedly complained about sex discrimination to her managers. See, e.g., Johnson v. Booker T. Wash. Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000) (filing a charge and complaining about discriminatory conduct to superiors constitutes protected activity).

As for Gogel’s assistance to Ledbetter, although the parties dispute whether Gogel actually assisted Ledbetter in filing an EEOC charge, Kia stated that it believed Gogel encouraged Ledbetter to file an EEOC charge or to pursue Title VII litigation against the company. Had Gogel assisted Ledbetter in that manner, that would be protected participation, as protected conduct under Title VII’s participation clause includes “mak[ing] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under [the statute].” 42 U.S.C. § 2000e-3(a) (emphasis added). As this Court explained in EEOC v. Total System Services, Inc., the “[participation] clause protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC.” 221 F.3d at 1174. Providing assistance with charge filing is an “activit[y] which occur[s] in conjunction with . . . the filing of a[n EEOC] charge.” See also Robinson v. Shell Oil Co., 519 U.S. 337, 339 (1997) (stating the antiretaliation provision makes it unlawful to discriminate against employees “who have either availed themselves of Title VII’s protections or assisted others in so doing”).

Gogel’s alleged assistance to Ledbetter also amounted to protected opposition. See Gogel, slip op. at 21 (The “action of providing the name of an attorney [to another employee] in connection with [an] EEOC charge would be protected opposition conduct, because [providing an attorney’s name] assist[s] [the other employee] with filing her own charge[.]”); see also Rosser v. Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221, 224 n.3 (5th Cir. 1980) (citing “assist[ing] union members in filing charges with the EEOC” as an example of opposition). Indeed, as a general matter, supporting another employee in reporting discrimination is protected opposition. See Gogel, slip op. at 17 (“[D]iscriminatory practices aimed . . . at other employees fall into the broad category of ‘any practice made an unlawful employment practice [under Title VII].” (quoting 42 U.S.C. § 2000e-3(a)); see also Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (“[W]hen an employee [expresses] . . . a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes . . . opposition.” (internal quotation marks omitted)); id. at 279 n.3 (“[E]mployees will often face retaliation . . . for reporting discrimination suffered by others.”); Mulkey v. Bd. of Comm’rs of Gordon Cty., 488 F. App’x 384, 385, 388 n.2, 389-90 (11th Cir. 2012) (finding triable issue on protected opposition where plaintiff (1) accompanied co-worker when co-worker filed a sexual harassment complaint and (2) supported co-worker in internal investigation).

Even if Kia acted on a mistaken belief that Gogel assisted Ledbetter in filing her EEOC charge, her termination for that reason would nonetheless constitute actionable retaliation. As the Supreme Court recently held in Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016), a First Amendment retaliation case, an employer’s termination of an employee based on its mistaken belief that the employee engaged in protected conduct constitutes a valid basis for a retaliation claim. In Heffernan, the employer had demoted the plaintiff based on its mistaken belief that he supported a particular political candidate. Id. at 1416. Because that political conduct would have been protected under the First Amendment, the Supreme Court explained, even if the employer made a factual mistake about the employee’s behavior, the employee “is entitled to challenge that unlawful action,” as the employer’s retaliatory motive is “what counts” in a retaliation analysis. Id. at 1418; see also EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (“[Title VII’s] intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.”); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 565, 571-72 (3d Cir. 2002) (holding that plaintiff’s Age Discrimination in Employment Act and Americans with Disabilities Act claims alleging retaliatory termination based on the employer’s mistaken belief were valid).

2. A reasonable jury could conclude that Kia would not have fired Gogel but for her protected activity.

Ample record evidence would allow a jury to conclude that Kia fired Gogel based on its belief that she had engaged in protected activity: assisting or encouraging Ledbetter to file an EEOC charge or filing her own EEOC charge. First, as to Gogel’s alleged assistance to Ledbetter, Jackson testified that he fired Gogel because he believed that she had “encouraged and solicited other team members” to file EEOC charges. D120, P69-70. Jackson added, “I need 100 percent trust in that particular job, Manager of Team Relations. I had lost that trust. I was convinced that was going on. I made a decision to terminate her employment.” Id. at P70. Jackson’s termination letter to Gogel expressly referenced Ledbetter’s EEOC charge, his belief that Ledbetter had discussed her intention to file an EEOC charge with Gogel, and that witnesses observed Gogel talking with Ledbetter on several occasions, to explain why Kia had “los[t] confidence in the loyalty and trust that is required by your position.” D118, P26-27. Jackson’s testimony and the letter provide direct evidence of retaliation. See Taylor v. Runyon, 175 F.3d 861, 869 (11th Cir. 1999) (explaining that manager’s statement that plaintiff was “no longer worthy of his trust because she filed a discrimination claim against him” “readily come[s] within [this Court’s] examples of direct evidence” of retaliation). Such evidence is sufficient on its own to create a triable issue with respect to a retaliation claim. Merritt, 120 F.3d at 1190-91.

The panel majority did not address the causal connection between Gogel’s own EEOC charge and her termination. However, Kia’s treatment of Gogel in the weeks following her EEOC charge would also allow a jury to conclude that, but for Gogel’s charge filing, Kia would not have fired her. The document that Kia presented to Gogel on December 3, 2010, about two weeks after it learned of Gogel’s charge on November 22, is evidence that Kia reacted to Gogel’s charge with retaliatory animus. The “agreement” purportedly prohibited Gogel, and by extension her team members, from conduct that could constitute protected opposition: “discuss[ing]” her own charge with other employees, “influencing” other employees to “make claims against” Kia, seeking “information . . . related to [her] own claim” from other employees, and making negative statements about Kia. See generally Retaliation Guidance § II(A)(2)(b) & (f)(1) (explaining that protected opposition may include “inform[ing] others of alleged discrimination, including . . . coworkers,” “making informal or public protests against discrimination,” “expressing support of coworkers who have filed formal charges,” and “talking to coworkers to gather information or evidence in support of a potential EEO claim”). Indeed, Kia attached that agreement to Gogel’s termination letter and expressly referred to it in the termination letter. See D118, P 26-27; D130, P18.

Kia not only presented Gogel with this agreement on December 3, but also suspended Gogel for the first time that day when she declined to sign it, suspended her again on January 7, 2011, and fired her on January 19. This succession of events, all occurring within less than two months after Kia learned of Gogel’s EEOC charge, would permit a reasonable factfinder to conclude that but for Gogel’s filing of her own EEOC charge, Kia would not have fired her. See, e.g., Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1259-60 (11th Cir. 2012) (grant of summary judgment on plaintiff’s retaliation claim was error, where sequence of events following plaintiff’s EEOC charge supported showing of causation between EEOC charge and adverse action). Despite Kia’s pattern of retaliation after Gogel’s charge filing, the panel dissent opined that a jury could not find a causal link between Gogel’s charge and her termination because Jackson approved Gogel’s paid leave request and awarded her a bonus in late December. However, a jury could readily conclude that these events did not break the causal connection; for example, a jury could view Jackson’s approval of paid leave and a year-end bonus as routine administrative tasks, or the evidence could show the bonus was in the works before Gogel filed her charge.

C. The “honest belief” doctrine does not apply in this case.

The panel dissent characterized Gogel’s conduct differently than the majority, accepting Kia’s view that Gogel “actively solicited Ledbetter . . . to file an EEOC charge,” because, the panel dissent commented, that is “what Kia reasonably believed to be the case when it fired Gogel.” Gogel, slip op. at 36 (J. Carnes, J., dissenting). Along similar lines, the district court relied on this Court’s precedent discussing an employer’s “honest belief” in opining that “one could conclude that Kia honestly believed that Gogel acted in a manner sufficient to cause the company to lose confidence in the loyalty and trust of someone in her position.” D130, P13. However, the so-called “honest belief” doctrine does not apply to this case.

Discussion of an employer’s “honest belief” typically arises when an employer claims that it took an adverse action against an employee based on its “honest belief” that the employee engaged in misconduct warranting that adverse action. For example, in Flowers v. Troup, 803 F.3d 1327 (11th Cir. 2015), this Court concluded that the employer “could have honestly believed that [the plaintiff, a football coach,] had committed recruiting violations” and fired him on that or another non-discriminatory basis. Id. at 1337-38. Similarly, in Clark v. South Broward Hospital District, the panel explained that the plaintiff had “provided no reason to suspect that [her employer] did not honestly believe” that she engaged in “serious misconduct,” where the employer conducted an investigation after receiving multiple allegations of the plaintiff’s aggressive behavior and racist and antisemitic remarks. 601 F. App’x at 896.

Here, by contrast, the “honest belief” doctrine does not apply because the basis for Kia’s determination that Gogel was no longer trustworthy or fit for her position was its belief that she had engaged in protected activity—assisting a co-worker with filing an EEOC charge. In other words, Kia’s stated reason for firing Gogel was not based on legitimately sanctionable misconduct independent from her protected activity, but rather precisely because of—and for no other reason than—her protected activity. As this Court has explained, it is not a legitimate, non-retaliatory reason to fire an employee who has complained of discrimination because the company thinks the employee is “unhappy working for the company” given the complaint, or that it would be “awkward and counterproductive” to retain her. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1269 (11th Cir. 2010); see also id. at 1269-70 (adding that an employer’s fear that an employee who engaged in opposition might sabotage the company is not a legitimate, non-retaliatory reason for termination, absent a “reasonable, fact-based fear of sabotage or violence”). For the same reasons, Kia’s asserted belief that Gogel was “not trustworthy” based on her protected conduct was not a legitimate basis for Gogel’s termination.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s grant of summary judgment on Gogel’s Title VII retaliation claim.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Attorney

/s/ Anne W. King__________

ANNE W. KING

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E., Fifth Floor

Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] “D” refers to the district court document number and “P” refers to the page number(s) appearing in the header generated by the district court’s electronic filing system, pursuant to 11th Cir. R. 28-5.

[3] As one of the amicus briefs filed at the panel stage pointed out, the Commission’s Enforcement Guidance on Retaliation and Related Issues also recognizes that “[t]he manner of opposition must be reasonable” and that, in assessing whether opposition was conducted in a reasonable manner, “[c]ourts and the Commission balance the right to oppose employment discrimination against the employer’s need to have a stable and productive work environment.” Retaliation Guidance §§ II(A)(2) & II(A)(2)(b); see Brief for Chamber of Commerce as Amicus Curiae Supporting Appellee at 2 n.3, Gogel v. Kia Motors Mfg. of Ga., No. 16-16850 (citing Retaliation Guidance).

[4] Decisions of the former Fifth Circuit decided before October 1, 1981, are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

[5] The district court mentioned that Jones “adopted a balancing test [that weighed] the ‘employer’s right to run his business . . . against the rights of the employee to express his grievances and promote his own welfare’” and noted that Jones, applying this balancing test, concluded that the employee’s conduct “rendered [her] ineffective in the position for which she was employed.” D130, P10 (quoting Jones, 793 F.2d at 728). However, the district court’s discussion of Jones largely consisted of drawing analogies between the Jones employee’s job duties and Gogel’s responsibilities, despite the district court’s oblique reference to the balancing test used to assess whether an employee conducted opposition in a reasonable manner.

[6] The Commission’s en banc brief encompasses those issues addressed by the district court and discussed in the Commission’s panel-stage brief. As the district court’s primary focus was whether Gogel engaged in protected activity, not the manner of her opposition, the Commission has concentrated on the same question. Cf. Gogel, slip op. at 42, 46 (J. Carnes, J., dissenting) (questioning whether the reasonable-manner requirement applies to Gogel’s opposition because Gogel’s “style of complaining” is not at issue).