STATEMENT REGARDING ORAL ARGUMENT

The Commission requests oral argument. This case raises an important and recurring question: can an employer fire an employee who complains of sexual harassment after an investigation that focused on the complaining employee’s sexual history and mental health because it claims to believe that the allegation of sexual harassment was false? Answering that question in this case implicates two of this Court’s foundational cases in this area of law, EEOC v. Total System Services, Inc., 221 F.3d 1171 (11th Cir. 2000), and Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) (en banc). The first, in the EEOC’s view, is no longer good law because it is has been abrogated by three more recent Supreme Court decisions. And the second announced a rule that, in the EEOC’s view, requires exceptions that have been implicitly, but not yet explicitly, recognized by this Court.

Oral argument therefore will significantly aid the decisional process. See Fed. R. App. P. 34(2)(c).

CERTIFICATE OF INTERESTED PERSONS. C-1

STATEMENT REGARDING ORAL ARGUMENT. i

TABLE OF CONTENTS. ii

TABLE OF CITATIONS. iv

TABLE OF RECORD REFERENCES IN THE BRIEF. viii

STATEMENT OF SUBJECT-MATTER AND APPELLATE JURISDICTION.. 1

STATEMENT OF THE ISSUE. 1

STATEMENT OF THE CASE. 2

I. Course of Proceedings and Disposition in the Court Below.. 2

II. Statement of the Facts. 3

III. Standard of Review.. 20

SUMMARY OF ARGUMENT. 21

ARGUMENT. 24

I. The EEOC demonstrated a prima facie case of retaliation because Posten engaged in protected activity and was fired, and there is “some causal relation” between the two. 24

II. The district court erred in finding that Jiudicy was not liable because it had a good-faith belief that Posten falsely accused Morrow of harassment. 28

A. If an employer terminates an employee who in good faith opposed an unlawful employment practice, Title VII is violated even if the employer wrongly believes that the accusation is false. 29

B. At the very least, summary judgment is precluded when an employer claims it fired the employee for making a false accusation of harassment and the employer fails to demonstrate that its belief is a good-faith one supported by some independent corroboration. 37

C. The Total System defense does not apply to sham investigations. 39

III. A reasonable jury could conclude that Jiudicy’s asserted reasons were a pretext for retaliation. 41

A. All of Jiudicy’s reasons are rebutted. 43

B. Each of Jiudicy’s asserted reasons is a pretext for retaliation. 50

CONCLUSION.. 59

CERTIFICATE OF COMPLIANCE. A

CERTIFICATE OF SERVICE. B

TABLE OF CITATIONS

Page(s)

CASES

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. 1998)..................................... 43

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010)........... 25

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160 (11th Cir. 2010).............. 41, 49

*Burlington Industries, Inc. v. Ellerth,

.... 524 U.S. 742, 118 S. Ct. 2257 (1998)................................................. passim

*Burlington Northern & Sante Fe Railway Co. v. White,

.... 548 U.S. 53, 126 S. Ct. 2405 (2006)................................................... passim

Butler v. Ala. Dep’t of Transp., 536 F.3d 1290 (11th Cir. 2008)..................... 26

Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009).......................... 39

*Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) (en banc)..... 41, 42

Clark Cnty. Sch. Dist. v. Breeden,

.... 532 U.S. 268, 121 S. Ct. 1508 (2001) (per curiam)................................... 26

Cleveland v. Home Shopping Network, Inc.,

.... 369 F.3d 1189 (11th Cir. 2004)........................................................... 48, 53

*Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., 555 U.S. 271, 129 S. Ct. 846 (2009).................................................................. passim

Donnellon v. Fruehauf Corp., 794 F.2d 598 (11th Cir. 1986)................... 44, 45

*EEOC v. Total System Services, Inc., 221 F.3d 1171 (11th Cir. 2000).... passim

EEOC v. Total System Services, Inc., 240 F.3d 899 (11th Cir. 2001)......... 32, 35

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409 (5th Cir. 2003)................. 27

*Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998)............ passim

*Gilooly v. Mo. Dep’t of Health & Senior Servs.,

.... 421 F.3d 734 (8th Cir. 2005)................................................... 34, 37, 38, 39

Hamilton v. Southland Christian Sch., Inc.,

.... 680 F.3d 1316 (11th Cir. 2012)........................................................... 20, 21

Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004)....................................... 27

Hurlbert v. St. Mary’s Health Care Sys., Inc.,

.... 439 F.3d 1286 (11th Cir. 2006)................................................................. 48

In re Emp’t Discrimination Litig. Against State of Ala.,

.... 198 F.3d 1305 (11th Cir. 1999)........................................................... 29, 36

Johnson v. Booker T. Washington Broad. Serv., Inc.,

.... 234 F.3d 501 (11th Cir. 2000)................................................................... 26

Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009).......................................... 44

Keaton v. Cobb Cnty.,

.... No. 08-11220, 2009 WL 212097 (11th Cir. Jan. 30, 2009)....................... 42

Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998)............................... 56

Leach v. Pan Am. World Airways, 842 F.2d 285 (11th Cir. 1988).................. 29

Lipphardt v. Durango Steakhouse, 267 F.3d 1183 (11th Cir. 2001)... 25, 30, 36

Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766 (7th Cir. 2008)............... 26

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)........................................ 36

Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004).............................. 30

Pennington v. City of Huntsville, 261 F.3d (11th Cir. 2001)............................ 40

Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998)..................... 44

Reeves v. Sanderson Plumbing Prods., Inc.,

.... 530 U.S. 133, 120 S. Ct. 2097 (2000).................................................. 28, 43

Richey v. City of Independence, 540 F.3d 779 (8th Cir. 2008)......................... 37

Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995)................................... 49

Scarbrough v. Bd. of Trustees Fla. A&M Univ.,

.... 504 F.3d 1220 (11th Cir. 2007)........................................................... 51, 52

Sheridan v. E.I. DuPont de Nemours & Co.,

.... 100 F.3d 1061 (3d Cir. 1996) (en banc)..................................................... 41

Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998).................................... 48

Smith v. State, 749 F.2d 683 (11th Cir. 1985)................................................. 43

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993)........... 47

Staub v. Proctor Hosp., 562 U.S. __, 131 S. Ct. 1186 (2011)......................... 40

Stimpson v. City of Tuscaloosa, 186 F.3d 1328 (11th Cir.1999) (per curiam). 40

Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001).......................................... 35

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)..................... 43, 45

*Thompson v. North American Stainless, LP,

.... 562 U.S. __, 131 S. Ct. 863 (2011)..................................................... passim

Wright v. Southland Corp., 187 F.3d 1287 (11th Cir. 1999)..................... 40, 41

STATUTES

28 U.S.C. § 1291.............................................................................................. 1

28 U.S.C. § 1331.............................................................................................. 1

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

42 U.S.C. § 2000e-5(f)...................................................................................... 1

RULES & REGULATIONS

Fed. R. App. P. 4(a)(1)(B)................................................................................ 1

OTHER AUTHORITIES

Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18 (2005)........................... 33

Christine Sgarlata Chung, From Lily Bart To The Boom-Boom Room: How Wall Street’s Social and Cultural Response to Women Has Shaped Securities Regulation, 33 Harv. J. L. & Gender 175 (2010)......................................................................... 34

Victoria Pynchon, Business, Bias and the “Sluts and Nuts” Defense, Forbes (May 19, 2011).......................................................................................................... 34

TABLE OF RECORD REFERENCES IN THE BRIEF

Brief Page # Docket #

1, 3 Judgment Granting Summary Judgment and 135

Dismissing the Case

1, 3 EEOC Notice of Appeal 140

2 EEOC Complaint 1

2 Posten Intervenor Complaint 4

2 Posten Amended Complaint 5

2, 25 Jiudicy Brief in Support of Motion for Summary 96-1

Judgment

2 Magistrate’s Report and Recommendation 126

3, 50, 51 District Court Decision Granting Summary 134

52, 53, 54 Judgment Motion

55, 58

3, 9 EEOC and Posten’s Response to Jiudicy’s Statement 105-1

of Undisputed Facts

3, 7, 12, 13, Depostion of Anthony Giudicy 105-11

15–16, 18

50, 52

3, 4, 5, 6, Deposition of Melissa Posten 105-3

10, 11–13,

17, 18, 25,

26, 50, 52,

54, 57

4, 5 Transcript of Hearing before Magistrate, State of 105-5

Georgia, Part II

4, 53, December 5, 2007 Cumming Police Department 105-6

Incident Report

5, 6 Transcript of Hearing before Magistrate, State of 105-4

Georgia, Part I

5 EEOC and Posten’s Statement of Material Facts 105-2

Presenting Genuine Issues

6 December 17, 2007 Cumming Police Department 105-7

Incident Report

6, 7, 8 Depostion of Joseph Beresford 105-8

9–10, 11,

12, 13, 14,

15, 17, 18

26–27, 44,

45, 46, 51,

53, 57

8, 9, 10, Depostion of Gary Johnson 105-9

11–12, 13,

18, 19–20,

27, 45, 46,

49, 50–54,

56-58

14, 15, 16 Depostion of Fitzroy Pinnock 105-15

17, 18 Termination Notice of Melissa Posten 96-6

20 Final Disposition of Victor Morrow’s State 105-16

Disorderly Conduct Charge

STATEMENT OF SUBJECT-MATTER AND APPELLATE JURISDICTION

The district court had jurisdiction over this Title VII enforcement action under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f). The judgment in this case became final on March 29, 2012, when the district court granted summary judgment to the defendant on all claims. R.135; see Fed. R. App. P. 4(a)(1)(B).

The EEOC filed a timely notice of appeal on May 24, 2012. R.140; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Title VII makes it unlawful to terminate an employee for opposing sexual harassment so long as the employee had a good-faith reasonable belief that the opposed harassment was unlawful. Melissa Posten complained to her employer, Jiudicy, about her supervisor’s harassing phone calls. Jiudicy fired her and—citing evidence fabricated by company investigators during a two-day investigation that focused, not on the harasser, but on Posten’s sexual history and mental health—claimed that it concluded that her accusations were false. Could a reasonable jury conclude that Jiudicy violated Title VII?

STATEMENT OF THE CASE

I. Course of Proceedings and Disposition in the Court Below

The EEOC’s complaint alleges that Jiudicy violated Title VII’s antiretaliation provision when it fired Posten for complaining about her supervisor’s sexual harassment. R.1.[1] Posten intervened, alleging retaliation, various state law claims against both Jiudicy and the supervisor, Victor Morrow, and a Title VII sexual harassment claim. R.4, 5.

Jiudicy moved for summary judgment, arguing that the EEOC and Posten could not establish a prima facie case because they could not demonstrate that Posten engaged in protected activity, or that there was a causal connection between that activity and Posten’s termination. R.96-1, at 24–26. Jiudicy also argued that even assuming a prima facie case, it was entitled to summary judgment because it fired Posten based on its belief that her harassment accusations were false, and the EEOC and Posten failed to demonstrate that its reasons were pretextual. R.96-1, at 29–35. The magistrate judge recommended denying Jiudicy’s summary judgment motion on the Title VII retaliation claim, reasoning that several inconsistencies cast doubt on whether Gary Johnson, the company president who fired Posten, made an “honest choice” to disbelieve her. R.126, at 52–57.

The district court rejected the magistrate judge’s recommendation on the retaliation claim and granted Jiudicy’s motion for summary judgment, reasoning that Jiudicy demonstrated that it terminated Posten based on a good-faith belief that she had falsely accused the harassing supervisor, and that the plaintiffs failed to rebut each of the employer’s legitimate, nonretaliatory reasons. R.134, at 7–27; R.135.

The EEOC appeals the summary judgment grant on the retaliation claim. R.140.

II. Statement of the Facts

Jiudicy operates Labor Finders, a temporary staffing agency, with branch offices throughout the southeastern United States. R.105-1, at 2. Jiudicy was run by Gary Johnson, its then-president, and Anthony Giudicy, its then-executive vice-president. R.105-11, at 3. (The name Jiudicy is derived from a fusion of their last names. Id. at 4.)

Melissa Posten worked as the administrative assistant and office manager of Labor Finders’s branch in Cumming, Georgia. R.105-1, at 4–6. She was hired by Victor Morrow (the Cumming branch manager), and Joe Beresford (the district manager over the Cumming branch and Morrow’s boss). R.105-1, at 6. A couple months after hiring her, Morrow began making anonymous, harassing phone calls to Posten’s personal cell phone. R.105-3, at 17–20.

On December 5, 2007, Morrow called Posten six times in rapid succession over a five-minute span—while she was alone at the office. R.105-3, at 17–20. On those calls, Morrow breathed heavily, made “grunting noises” and other noises simulating masturbation, whispered that he was masturbating, and also left a voicemail with those sounds. R.105-3, at 17–20; R.105-5, at 67–68. Posten answered some of the calls, and implored the caller to stop. R.105-3, at 18–19. Posten had no idea who was calling her because the caller ID stated that the calls were blocked or “private.” Id. at 16, 18.

The first calls just “bothered” her, but soon they started to “scare[] [her] because [she] didn’t give [her] number out to anybody.” Id. at 47. In between the calls, Posten called Morrow using the office phone—not knowing that he was the caller—telling him “that [she] was scared to be up there by [herself].” Id. at 20. They did not talk until later, but when they did, Morrow offered to keep her company at the office and walk her to her car after her shift. Id.

Posten declined the offer, because she had already called the Cumming Police Department. R.105-6, at 2–3. An officer came to the office, interviewed Posten, and drafted an incident report. Id. The report states that Posten told the officer that “she ha[d] been receiving sexual[ly] explicit phone calls,” and that Posten did not know who was calling her, but suspected that it might be a loan officer from a nearby credit union where she had recently obtained a loan. Id. She suspected the loan officer because after she had obtained the loan, he began calling her personal cell, seeking a date. R.105-3, at 30. Her then-fiancé Rick Sutton, called the loan officer, told him not to call her, and shortly thereafter, the harassing calls began. Id.

At work the next morning, December 6, Posten played the voicemail for Morrow and two day laborers, Andy and Tony. Id. at 22. Morrow and the others “kind of giggled” and Morrow commented that it was “messed up.” Id. Posten admonished him, telling him that she did not find the calls funny; she found them “scary.” Id. Morrow expressed regret for his reaction, and Posten shared with him her suspicions about the loan officer. Id. at 22, 23. Tony later testified that he regretted laughing because “it wasn’t funny.” R.105-4, at 62. Tony and Andy testified that Posten was so scared by the calls that she locked the office door during regular business hours. R.105-2, at 5; R.105-4, at 59, 65.

Morrow continued making frightening calls to Posten. Later that same day, he made a six-second call consisting of heavy breathing at 1:26 pm, a four-second call that went to voicemail at 1:34—he left no message—and then another call, a second later. R.105-3, at 24; R.105-5, at 70. Posten answered this call and immediately hung up. R.105-3, at 24. The calls ceased for a time. Id. at 25.

Then at 1:17 pm on December 17, Posten received a call while she was at lunch with her fiancé, Sutton. R.105-3, at 25; R.105-5, at 72. Sutton put the phone on speaker. R.105-3, at 25. The caller made “whispering and heavy breathing and grunting noises,” and then said, “I want you to lick my balls. I want you to lick my balls.” R.105-4, at 10. Sutton asked the caller whether he wanted to “lick [Sutton’s] balls” and the call went dead. Id.

Sutton suggested that Posten review her cell phone records when she returned to the office. R.105-3, at 25; R.105-4, at 10–11. When she did, she recognized the phone number from which the calls had come: Victor Morrow’s. R.105-3, at 26.

She then called the police, and a Cumming police officer again came to the office. The officer instructed Posten “to talk to the Forsyth County magistrate judge about action she might p[u]rsue on Mr. Morrow.” R.105-7, at 3. The officer’s report states that “[w]hen officer arrived, . . . Posten . . . was in tears and shaking.” Id.

While the officer was still there, she called Beresford, Morrow’s supervisor, and tearfully told him that Morrow had been making harassing phone calls to her and that her phone records confirmed it. R.105-3, at 26, 27, 34; R.105-8, at 6–7, 11. Beresford expressed “surprise that, you know, . . . she was making that accusation.” R.105-8, at 11. Beresford talked to the officer, and the officer relayed Beresford’s instruction to Posten that she should leave the office for the night. R.105-3, at 27; R.105-8, at 7, 11–12.

Beresford then contacted Mike Ashmore, Beresford’s direct supervisor and a vice-president of Jiudicy, who in turn contacted Gary Johnson, the president of Jiudicy. Id. Johnson responded by initiating and leading an investigation that ended—less than three days later—with Posten’s termination.

Johnson enlisted two “investigators”: Giudicy, his co-founder, and Beresford, the district manager. Giudicy had been accused a few years earlier of sexual harassment, but according to Giudicy, Johnson “did a very thorough investigation” in that case, concluded that that sexual harassment allegation was “fabricated,” and later terminated the accuser. R.105-11, at 5. According to Giudicy, that harassment allegation was just a scheme to get him fired. Id. Giudicy’s attitude toward his co-founder was, “if Mr. Johnson tells me, it’s law.” Id. at 25.

Beresford had never investigated a sexual harassment complaint nor had he been trained on how to handle one. R.105-8, at 6. When Posten complained about the harassment, “[he] didn’t know what to do with it.” Id. at 7. Johnson knew this: Beresford told him that “[he] had no experience . . . in something like this.” Id. at 30.

Johnson kicked off the investigation by calling Beresford. Johnson instructed him to not talk to Morrow; Johnson would talk to him first. Id. at 12. Johnson was already upset with Beresford that the process had progressed this far without his involvement. Id. As Beresford testified, “[Johnson] kind of chewed me [out].” Id. Johnson testified that his company had been sued before, making him “deathly afraid” of lawsuits, and he wanted to make sure that “people are doing things right.” R.105-9, at 51.

On the evening of the 17th, Johnson called Morrow—before talking to Posten and when he, admittedly, knew little about Posten’s specific accusation. Johnson testified that Beresford told him only that Posten claimed that “she’[d] been receiving obscene phone calls and [that] she believe[d] it was from [Morrow],” but no additional details. Id. at 27.

Johnson testified that he “asked Morrow directly if he, in any manner, by phone, fax, in person or sexually or otherwise harassed Posten to include verbiage, physical contact, et cetera, and Morrow stated unequivocally no. . . . That’s basically it.” Id. at 26. Morrow told Johnson that he was with his family when the calls were made. Id. at 25. Once Morrow denied it, Johnson decided that he “needed to know whether he had any further information that would indicate that this might be a false claim.” Id. at 27.

Johnson invited Morrow to tell him why, in Johnson’s words, Posten was “retaliating” against Morrow, and Morrow suggested that she accused him of harassment because he denied her request to bring her children to work. Id. at 27, 29. He also suggested that Johnson should doubt Posten’s allegation because she also had accused a loan officer at a local credit union of the sexually harassing phone calls and was involved in a similar incident with a former supervisor, Fitzroy Pinnock, while working in the cafeteria at Northside Hospital. Id.

From Johnson’s perspective, he did not need to do anything further to determine whether Morrow had made the calls. Id. at 27–28. Johnson did not think it was necessary to investigate Morrow’s personal life or anything that would affect his credibility. Id. at 20–21. Johnson knew that Morrow had “had some [criminal] problems five or six years earlier.” Id. at 32. He had been charged with battery on at least two occasions. R.105-1, at 4. But to Johnson, Morrow’s criminal history did not undermine his credibility; it buttressed it. According to Johnson, that Morrow had not had more recent documented run-ins with the law “would lead one to believe that he’s cleaned up his act.” R.105-9, at 32. Johnson testified that he was sure of Morrow’s credibility even though he had “never talked to him before.” Id. at 20–21.

Morrow’s frequent calls to Posten, to Johnson, were just “normal business, normal business practice.” Id. at 28. In the end, neither Johnson, nor his investigators, ever conducted an investigation into Morrow’s background, previous employment, or anything else. R.105-8, at 25. Johnson never talked to the police officers who twice responded to Posten’s calls and never talked to her fiancé, who heard one of the calls and observed Posten’s reactions. R.105-9, at 56. Johnson testified that he just believed that Morrow would not have made any harassing telephone calls to Posten. Id. at 22. He never talked to Morrow again about the calls. Id. at 28.

Meanwhile, Beresford also had talked to Morrow. When deposed, Beresford stated that Morrow denied harassing Posten, but remembered little about Morrow’s responses to Posten’s allegations. R.105-8, at 13. Yet Beresford clearly remembered Morrow’s counteraccusations. He remembered Morrow telling him “that she had related a story of an incident that happened at Northside Hospital, that she was involved in some kind of an issue with a manager there that involved sexual issues,” that she had “some similar kind of accusation . . . against another manager that she had worked for in the office, or at the hospital,” and that “[s]he apparently had done a similar incident by bringing charges or some accusation against Fitz.” Id. at 14, 22. And Beresford remembered that Morrow “was surprised by the accusation,” because, according to Morrow, “there was kind of a playful relationship apparently had gone [sic] on between them in the office and at times he thought she was flirty.” Id. at 14.

The next morning, on December 18, Beresford went to the Cumming office to talk to Posten. Posten showed him her phone records demonstrating that Morrow’s calls matched up with the harassing calls. R.105-3, at 31–32. Beresford did not formally interview Posten. Posten testified, “He was sitting there going through my phone records. He would ask questions. I mean, I kept doing my work. It wasn’t like a sit-down meeting.” Id. at 32.

Posten testified, “When I played the message for [Beresford] . . . he said, ‘That doesn’t prove anything.’ He just—he was being rude.” Id. at 33. He never checked her phone to determine whether the blocked calls corresponded with Morrow’s calls on her phone records. R.105-8, at 20. Beresford also asked Posten whether she planned to file charges, and she said yes. R.105-3, at 31–32. And Beresford signaled to Posten how it would end. “[H]e told me that they would investigate it; and if they didn’t find any reason to let [Morrow] go or transfer him, . . . he would be coming back to work as normal.” Id. at 32. She made clear to Beresford that she “wasn’t happy about” that prospect. Id. at 33. Beresford told Posten to expect a call from Johnson. Id. at 32.

Beresford testified that he did not feel comfortable with Posten that morning because “[he] didn’t want to put myself in a position of getting in the same boat Victor [Morrow] was. I just felt uncomfortable.” R.105-8, at 20. He admitted that he felt uncomfortable even though he had “didn’t have a reason for it. I just felt uncomfortable.” Id.

Johnson first called Posten on the morning of the 18th. R.105-3, at 32; R.105-9, at 34. He threatened to terminate her for filing a police report. Johnson explained, “[F]iling a police report while receiving it on company property” is a “terminal[able]” offense. Id. She told him about “the phone calls, when I started getting the private calls, and why I believed it was Victor making those phone calls. And he asked me the same thing [that Beresford did:] was I planning on filing charges, and I told him yes. And I told him I was going [to file charges] on my lunch that day.” Id. at 33.

According to Johnson, he asked Posten what the caller said, and “she said something about private parts, obscene calls containing heavy breathing and mention of private parts.” Id. at 36. He asked her for the caller’s specific words, but Posten demurred, saying only that the caller mentioned something about “private parts.” Id. Because Posten was reluctant to repeat the caller’s graphic language, Johnson said he viewed her as overly shy, naïve and “less than credible.” Id.

Johnson did not review Posten’s cell phone records, and when asked why, he testified that “we were trying to get a hold of [the records] . . . throughout that investigation, they weren’t available.” Id. at 32–33. He said he asked Posten for the records but they were not available because she had a “strange [phone] service.” Id. In fact, Beresford looked over the records and testified that he faxed them to Johnson because “[Johnson] wanted a copy of them.” R.105-8, at 28.

On either the 18th or 19th, Giudicy spoke with Posten. R.105-3, at 33; R.105-11, at 27. Accounts differ somewhat about that call. Giudicy claimed that he “called the Cumming location on an unrelated matter and Ms. Posten answered the phone.” R.105-11, at 27. But Posten testified that Giudicy called her cell while she was at the state magistrate filing charges against Morrow and asked whether she was filing charges against Morrow. R.105-3, at 33. Giudicy also claimed that Posten told him that she would only “deal with” him, R.105-11, at 27, but Posten denied that, R.105-3, at 49. Both agreed that Posten told Giudicy that she thought Beresford and Johnson were being rude: “I told him that I didn’t like the way they were talking—just the tone of voice they used. I told him [that] I didn’t feel comfortable talking to them. . . . They were being rude.” R.105-3, at 33; R.105-11, at 27.

Meanwhile Johnson directed Beresford to investigate Posten’s relationship with Pinnock. Johnson stated, “[I]t was my investigation and we found out, apparently that in another life she was having a relationship with this man.” R.105-11, at 22. Johnson claims that he directed Beresford to “find out . . . whether or not this guy is, you know, making phone calls, talk to him, see what he has to say about—any calls he makes to Posten.” R.105-9, at 20.

But Beresford testified that he sought Pinnock out, not to determine whether Pinnock was calling Posten, but to investigate “whether . . . she had some kind of history of bringing false . . . unmerited accusations against another manager.” R.105-8, at 22. Beresford thought that his role was to do “what [he] was told.” Id. at 20. And he understood what Johnson wanted to hear: “[A]ll I was looking for was to say to my superiors there is another incident out there, it seems that she has done this before.” Id. at 22.

Beresford testified that Pinnock told him that after he ended the relationship, Posten “went after him . . . complaining about him.” Id. at 23. “But,” according to Beresford’s telling, “[the Hospital] found the accusation to be unfounded but [Pinnock] had to leave the hospital. [And Posten] was dismissed for bringing false allegations.” Id. He testified that Pinnock told him that Posten had falsely complained of “sex harassment” but they had had a “relationship.” Id. at 24. Beresford also claimed that Pinnock admitted “call[ing] Labor Finders looking for [Posten].” Id. at 23. Beresford also claimed that when he told Pinnock that he was investigating an incident involving Posten and another employee, Pinnock responded immediately with, “[H]e didn’t do it . . . whatever it is he didn’t do it.” Id. at 22–23.

Pinnock’s account differs. He testified he “never said that” Posten had filed a sexual harassment complaint against him, or anyone else. R.105-15, at 17. Instead, Pinnock testified that he told Beresford only that he was demoted after Posten had revealed to his managers that he and Posten had had a consensual “personal relationship.” Id. at 10. Pinnock did not tell Beresford that she was terminated for making false accusations; he never knew why she left Northside. Id. at 12. And Pinnock testified that Beresford never even asked him whether he made the harassing calls, and in any event, Pinnock denied calling her altogether, specifically testifying that he had absolutely no contact with Posten after she left Northside. Id. at 15. Pinnock also denied saying “whatever it is he didn’t do it.” Id. at 24–25.

Instead, according to Pinnock, Beresford focused mostly on Posten’s mental health. He testified: “Most of the questions w[ere] in regard to her behavior, her mental state . . . did she have problems, is she on medications.” Id. at 15. Beresford asked him whether “she was emotionally stable, stuff like that, along the line . . . does she do this all the time. . . . [D]oes she accuse people of doing things all the time when she was working for me.” Id. Beresford reported his “findings” to Johnson. R.105-8, at 24.

Giudicy testified that Johnson directed him to follow up with Pinnock to “find out if maybe [Pinnock] was the one making the calls.” R.105-11, at 85. And Giudicy testified that Pinnock told him that he had called Posten at the Labor Finders’s office “out of being concerned for her”; that Posten had falsely accused him and other employees of sexual harassment; and that Posten “even made sexual harassment claims against customers in the cafeteria . . . not only people that worked in the cafeteria, but actual customers.” Id. at 23, 24. He also claimed that Pinnock told him that Posten abused drugs, only to recant that later in his deposition. Id. at 23, 28.

But Pinnock testified that Giudicy never asked Pinnock whether he was making the harassing calls; denied calling Posten, stating that he had had no post-Northside contact with Posten whatsoever; testified that he “never said” that Posten had filed a sexual harassment complaint against him, or anyone else, and had no knowledge of any complaints made by Posten; and made clear that Giudicy never asked him about any drug abuse. R.105-15, at 13, 17, 18.

Indeed, according to Pinnock, they spoke for only about five minutes and Giudicy mostly talked about Giudicy’s desire to protect Morrow. Id. at 19. Pinnock testified that Giudicy told Pinnock that Morrow was a “good guy” who was married and had children and was having a “problem” or “issues” with Posten, and that he did not “want to see anything bad happen to him.” Id. at 14, 18–19.

Giudicy testified that he called “Johnson immediately after [he] left [Pinnock] and told [Johnson] of [his] conversation.” R.105-11, at 28. He told Johnson that Pinnock said that Posten had made sexual harassment allegations against people at Northside, including customers of the hospital cafeteria where she worked, that she had an affair with Pinnock, and that she took drugs for “psychiatric conditions.” Id.

Meanwhile, Beresford continued investigating Posten, reviewing her personnel file and looking through her desk. R.105-8, 33–34. Beresford testified that he opened one of Posten’s desk drawers and although he did not “even remember why I opened it up,” he found a bottle of prescription drugs. Id. For her part, Posten denied taking any medications, testifying she “do[es]n’t even have a doctor.” R.105-3, at 50.

Posten was at work the next morning, December 20, when Giudicy, Beresford, and Ashmore, accompanied by “some police officers,” entered the Cumming branch. Id. at 48. Posten had never met Giudicy before, but Beresford introduced him. Id. Without explanation, they handed her a document, id., titled “Notice of Termination,” stating that Posten was terminated for “misconduct,” R.96-6, at 51. The specific reasons given were:

Creating disruption in the work place by:

1. Falsely accusing coworker of making harassing telephone calls to her.

2. Refusal to cooperate in the investigative process, of the above mentioned accusations, by refusing to talk with Gary Johnson, President, and supervisor Joe Beresford, stating she would only talk with Tony Giudicy, Executive Vice President.

3. Actively and openly alleging that she was going to file a restraining order on coworker.

4. Refusing to provide telephone number of lawyer allegedly handling her case.

5. Falsely accusing a loan consultant of making harassing telephone calls to her.

6. Lying on her application for employment by omitting medications taken for a mental health condition.

7. Removing sensitive personnel documents from the branch personnel files.

Id. The notice included the handwritten notation that “[$]60.00 will be deducted from final pay for background check reimbursement.” Id. Posten refused to sign it, saying at the time that it was “a lie.” R.96-6, at 51; R.105-3, at 34, 48.

Johnson wrote the termination notice, R.105-9, at 39, explaining that “these seven responses go to her untruthfulness and lack of credibility, and that’s why she was fired, and I did it. It wasn’t Giudicy or anybody else.” R.105-9, at 44.

The reasons given to Beresford and Giudicy were somewhat different. Beresford was told on the morning of the 20th that “they decided to let her go based on . . . that it was procedural, that she didn’t follow procedure.” R.105-8, at 27. Beresford said “[he] did not feel comfortable with it.” Id. “It seemed questionable in my mind that they were making this decision in the midst of the investigation, or that accusation being brought.” Id. Giudicy, on the other hand, testified that Johnson fired Posten because Johnson “believe[d] that Victor Morrow did not do this based on all the information that he had gathered and had been informed of.” R.105-11, at 30.

After Posten’s termination, she filed for unemployment benefits, but Jiudicy opposed that, claiming that “Posten was terminated for not following orders, rules[,] and instructions that she agreed to in writing as presented in the company’s employee handbook and non-harassment policy,” and for lying on her application. R.105-9, at 46–47.

In his deposition, Johnson acknowledged that his reasons shifted. R.105-9, at 47. When he was asked “And her charge of sexual harassment disrupted your workplace?” he responded, “Oh, yes, yes,” noting that “[t]ermination is a definite possibility of anybody who disrupts the workplace.” Id. at 45. He initially testified that he had decided that Posten was being “untruthful,” but when asked whether he considered her a liar, he demurred, saying only that he thought she was untruthful. Id. at 17–18. But when asked to describe the “best” explanation for “the difference between a liar and someone who is untruthful,” he said, “Let’s pick any other female. I think she’s a slut. Her partner might just think she’s horny.” Id. at 18.

When asked specifically about whether he believed reason number one—”Falsely accusing coworker of making harassing telephone calls to her”—he said he did. Id. at 42. But he also admitted that he actually believed that Morrow had made the obscene phone calls, but that Posten invited it. He testified, “[Posten] encouraged all this alleged misbehavior from at least three individuals, one being Morrow, one being a loan officer from a credit union or credit bureau or credit lending institution, and another from Pinnock; and, also, Joe Beresford.” Id. at 22. He alleged that Posten had “bragged” about the obscene phone calls and that she had a history of “showing risqué pictures of herself on the computer.” Id. at 21–22. When asked “do you think [Posten] encouraged Morrow to make obscene phone calls,” he responded, “Sure.” Id. at 22. Johnson also claimed that she was trying to seduce Beresford during the investigation. He testified, “Her behavior as relayed to me—by . . . Beresford and . . . Pinnock in the case that she becomes—how can I put this—unwelcomely friendly physically with folks to the point where Beresford refuses to go back into the office.” Id.

Morrow was eventually charged with disorderly conduct for the calls, and Johnson, along with Beresford and Giudicy, testified on his behalf. R.105-9, at 48. The state magistrate judge found that there was probable cause to charge Morrow—that he probably made the calls—and when Johnson was asked about the state judge’s probable cause finding, Johnson responded, “[t]here was probable cause there, yeah, whatever.” Id. Morrow later pled nolo contendre to the disorderly conduct charge. R.105-16, at 2.

III. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo, and “draws all inferences and review[s] all evidence in the light most favorable to the non-moving party.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). “Summary judgment is appropriate only if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

SUMMARY OF ARGUMENT

1. To establish a prima facie case of retaliation, the EEOC must show that Posten engaged in statutorily protected opposition conduct and suffered an adverse employment action, and that there is “some causal relation” between the two—that is, they are not “wholly unrelated.” Posten engaged in protected activity when she complained about the harassment because she had a good-faith, reasonable belief that she was opposing unlawful sexual harassment. Jiudicy concedes that she suffered an adverse employment action—she was fired. The causal relation element is met here both because only a few days separated the activity and the termination and because there is a direct causal link between the two.

2. Normally, after the prima facie case has been shown, the burden shifts to the employer to assert a legitimate, nondiscriminatory reason, and after that, the plaintiff has to rebut those reasons as pretext for discrimination.

In this case, the EEOC need not rebut the employer’s asserted reasons because Jiudicy admits that it terminated Posten for complaining about the harassment, but claims that it mistakenly believed that she was lying. Its mistaken belief does not excuse its violation of Title VII. The district court concluded otherwise, relying on this Court’s decision in EEOC v. Total System Services, Inc., 221 F.3d 1171 (11th Cir. 2000), which held that an employer is not liable for firing an employee for engaging in protected activity if the employer concludes that the employee is lying, even when the employer is mistaken, so long as that mistake was an “honest” one.

Total System, however, is no longer good law because the rationales supporting it have been expressly rejected by three more-recent Supreme Court decisions. Total System rests on three rationales: (1) the legality of an adverse employment action turns on whether that action was a good business decision; (2) that when construing the antiretaliation provision, the court need not consider whether a particular construction promotes the reporting requirements of Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 126 S. Ct. 2405 (1998)—which generally require employees to report supervisory harassment before an employer can be held liable; and (3) even if the reporting goals of Faragher and Ellerth should be considered, Total System’s admittedly narrower construction of the antiretaliation provision may in fact promote those goals.

But the Supreme Court has rejected all of these rationales. It has concluded that: (1) the legality of an adverse employment action turns on whether the action would dissuade a reasonable worker from complaining about unlawful discrimination; (2) the antiretaliation provision must be construed in a way that promotes Faragher and Ellerth’s reporting regime; and (3) a broad construction of the antiretaliation provision is needed to do so. Indeed, Total System not only fails to promote Faragher and Ellerth by creating an incentive for employees to keep quiet, it also undermines the prophylactic purpose of Faragher and Ellerth by creating an employer incentive to target those who complain about harassment, rather than resolve the unlawful discrimination. But the Supreme Court has made clear that the antiretaliation provision must be construed in a way that creates exactly the opposite incentives. Finally, Total System’s construction should be rejected because it conflicts with the plain language of the statute.

Second, even if Total System’s good-faith defense is still good law, an employer may rely on it only if its erroneous decision was corroborated by independent sources and arrived at after a good-faith investigation, and Jiudicy cannot demonstrate that here. And third, there is sufficient evidence to support a finding that Jiudicy’s entire investigation of Posten’s allegations, under any standard of assessing the investigation, was a sham and Johnson’s beliefs were not formed in good-faith.

3. Assuming that the EEOC must rebut Johnson’s asserted reasons, it has done so here. As a general matter, to rebut the employer’s asserted reasons, the plaintiff must meet each one “head on and rebut it.” But a plaintiff need not meet each head on when a factfinder can conclude that all the reasons were merely a pretext for discrimination. Here, a reasonable factfinder could reject the entire list of asserted reasons, without considering each of them separately because: (1) the EEOC’s prima facie case is very strong; (2) Posten was fired less than three days after complaining; (3) Johnson, Giudicy, and Beresford have lied repeatedly about the investigation; (4) Johnson’s reasons for Posten’s termination have been inconsistent and have shifted over time; and (5) Johnson gave over seven different reasons for firing Posten.

Even if the EEOC must specifically rebut each of Johnson’s seven asserted reasons for Posten’s termination, it has done so. Three reasons are not legitimate reasons, but actually admissions of retaliation. Johnson also has admitted that at least three reasons were not true. And all seven reasons also are rebutted because there are disputes of fact about each, and when drawing all inferences in the EEOC’s favor, a reasonable jury could conclude that they are false.

ARGUMENT

I. The EEOC demonstrated a prima facie case of retaliation because Posten engaged in protected activity and was fired, and there is “some causal relation” between the two.

Title VII’s opposition clause makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made . . . unlawful . . . by this subchapter.” 42 U.S.C. § 2000e-3(a). To make a prima facie showing of retaliation under the governing opposition clause, the EEOC must show: (1) that Posten engaged in statutorily protected opposition conduct; (2) that she suffered an adverse employment action; and (3) that there is “some causal relation” between the two events. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010).

The district court addressed only whether Jiudicy’s reasons were a pretext for discrimination, impliedly concluding that the EEOC established a prima facie case. Jiudicy concedes that Posten suffered an adverse employment action. But Jiudicy, in its motion for summary judgment, argued that the EEOC failed to establish elements one and three—protected opposition conduct and causation. R.96-1, at 24.

To demonstrate that Posten engaged in protected opposition activity, the EEOC need only show that she had a “good faith, reasonable belief” that she was opposing an unlawful practice, not, as Jiudicy seemed to argue below, that Morrow’s “behavior legally constituted harassment.” R.96-1, at 24. Posten must only believe that she was opposing an unlawful practice, which she did, see R.105-3, at 38, and that that belief was objectively reasonable. Lipphardt v. Durango Steakhouse, 267 F.3d 1183, 1187 (11th Cir. 2001).

The objective reasonableness of Posten’s belief “is not assessed by examining whether the conduct was persistent or severe enough to be unlawful, but merely whether it falls into the category of conduct prohibited by the statute.” Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008). Here, Posten was opposing sexual harassment, which exists on a continuum: “On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. . . .” Magyar, 544 F.3d at 772; see also Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (contrasting harassing conduct that is “physically threatening or humiliating” with “a mere offensive utterance”).

To be sure, when an employee opposes harassment that is obviously not unlawful, such opposition is unprotected. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam) (complaining about one boorish comment about an absent woman was not protected activity); Butler v. Ala. Dep’t of Transp., 536 F.3d 1290, 1213–14 (11th Cir. 2008) (concluding that complaining about a racial epithet uttered twice by a co-worker in a one-time incident is not protected activity). But this case involves not a co-worker’s single boorish utterance, but a supervisor’s repeated, uninvited, intimidating, anonymous, and obscene phone calls that terrified Posten. R.105-3, at 20, 47. Even Johnson (and Beresford) recognized that harassing phone calls of this sort constitute illegal sexual harassment. R.105-9, at 15; R.105-8, at 8, 17. Thus, because Posten opposed the type of conduct that if severe or pervasive enough would constitute actionable harassment and her belief that was she opposing an unlawful practice was objectively reasonable, her conduct was protected opposition.

As for causation, this Court “construes the causal link element so broadly that a plaintiff merely has to prove that the protected activity and the . . . [adverse] action are not completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Posten was fired less than three days after she complained. This “close temporal proximity” between the protected activity and the adverse action satisfies this element. See id. (holding that one month between the protected activity and adverse action establishes causation).

The causation element also is met when the plaintiff shows that there is a direct link from the protected activity to the ultimate adverse employment action. See, e.g., Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 416 (5th Cir. 2003) (presenting direct evidence that employee was fired in part as a result of unsubstantiated sexual harassment charge that she had filed six years earlier established the causal connection). There is a direct link here because Johnson admits that he fired Posten for the “disruption” her report of harassment caused. R.105-9, at 45.

The EEOC established a prima facie case of retaliation because Posten engaged in protected activity and was fired, and there is “some causal relation” between the two.

II. The district court erred in finding that Jiudicy was not liable because it had a good-faith belief that Posten falsely accused Morrow of harassment.

Because the EEOC established a prima facie case, the burden shifted to the employer to assert a legitimate, nondiscriminatory reason for Posten’s termination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000). Jiudicy offered several reasons, some tied to the reasons given in Posten’s notice of termination, but some not. The district court found the first compelling—that Johnson believed in good faith after an investigation that Posten falsely accused Morrow of making the calls. There is sufficient evidence to rebut that reason as a pretext for retaliation, and this is discussed infra pt.III.

But this Court need not reach that issue for three reasons. First, terminating Posten based on the mistaken belief that she was lying violated Title VII, even if Johnson actually believed that she had falsely accused Morrow. Second, even if that mistaken belief were a defense, an employer could rely on it only if its erroneous conclusions were corroborated by independent verification based on a good-faith investigation, and Jiudicy failed to demonstrate that. And third, the evidence supports a finding that Jiudicy’s entire investigation of Posten’s allegations, under any standard of assessing the investigation, was a sham and Johnson’s beliefs were not formed in good faith.

A. If an employer terminates an employee who in good faith opposed an unlawful employment practice, Title VII is violated even if the employer wrongly believes that the accusation is false.

The district court concluded that Jiudicy was shielded from liability for its retaliatory conduct based on Total System. There, this Court held that “when the employer has good reason to believe” that a victim of harassment falsely accused her harasser, “the law will not protect the employee’s job,” even if the employer turns out to be wrong. Total System, 221 F.3d at 1176.

But Total System is no longer good law because the rationales supporting it have been expressly rejected by the Supreme Court in Thompson v. North American Stainless, LP, 562 U.S. __, 131 S. Ct. 863 (2011), Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006), and Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., 555 U.S. 271, 129 S. Ct. 846 (2009). This Court has explained that “[w]hen the rationale of our earlier cases is substantially undercut, we are not only free but required to revisit the issue involved.” See Leach v. Pan Am. World Airways, 842 F.2d 285, 286, 288 (11th Cir. 1988); see also In re Emp’t Discrimination Litig. Against State of Ala., 198 F.3d 1305, 1319 (11th Cir. 1999) (same).

To be clear, a reconsideration of Total System does not require a holding that false allegations of harassment are protected activity under the opposition clause. They are not. A plaintiff who makes a false allegation cannot make out a prima facie case, because, for an oppositional activity to be protected, the employee must have a good-faith belief that she is opposing an unlawful practice. Lipphardt, 267 F.3d at 1187. But if the plaintiff makes a false accusation, by definition, she does not have a good-faith belief that she is opposing an unlawful practice. Cf. Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004) (holding, in a participation case, that “utterly baseless claims do not receive protection under Title VII” because an employee must “reasonably believe in good faith” that the complained-of practice was unlawful). Therefore, lying is not protected oppositional activity. Indeed, in every case, an employee must prove that she is telling the truth.

Total System, however, went much further than that. It decided not only that lying is not protected oppositional activity but that an employer has a defense when it wrongly concludes that the employee was lying. The Total System decision rests on three rationales: (1) the legality of an adverse employment action turns on whether the action was a good business decision; (2) a court need not consider whether its construction of the antiretaliation provision would promote the policy goals of the Faragher and Ellerth regime—that is, encouraging employees to complain about harassment so that it may be resolved without litigation; and (3) Total System’s admittedly narrower construction of the antiretaliation provision may in fact promote the goals of Faragher and Ellerth. All these have been rejected by the Supreme Court.

As for the first rationale, this Court stated:

[W]hether to fire an employee for lying to the employer in the course of the business’s conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department.

Total System, 221 F.3d at 1176.

But this rationale cannot be squared with Burlington Northern and Thompson, because in those cases, the Supreme Court held “that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct,” concluding that the antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Thompson, 562 U.S. __, 131 S. Ct. at 868; Burlington N., 548 U.S. at 68, 126 S. Ct. at 2415. To determine whether employer conduct violates the antiretaliation provision, therefore, this Court should not defer, as the Total System Court did, to the employer’s conclusion that it was a reasonable business decision to fire an employee who in good-faith opposed harassment. Instead it must ask whether the employment action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” And quite plainly, firing employees who truthfully complain about harassment might well dissuade a reasonable worker from complaining of harassment.

As for rationale two, the panel opinion in Total System rejected the notion that the antiretaliation provision should be construed in a way that promotes the reporting demands of Faragher and Ellerth, viewing them simply as “decisions [that] decided the proper level of vicarious liability that employers have for the acts of supervisors.” Total System, 221 F.3d at 1175 n.3. The concurrence to the denial of rehearing en banc likewise defended the panel opinion by arguing that the “policy implications” of Faragher and Ellerth “should make little difference to the court” in construing the antiretaliation provision because the statute “has already balanced the interests.” EEOC v. Total System Servs., Inc., 240 F.3d 899, 904–05 (11th Cir. 2001) (Edmondson, J., concurring in the denial of rehearing en banc).

But this rationale cannot be squared with Crawford. There, the Court held that the opposition clause protects an employee who speaks out about discrimination not only on her own initiative, but also in answering questions during an employer’s internal investigation. Crawford, 555 U.S. at 273, 277–80, 129 S. Ct. at 849, 851–53. The Supreme Court rejected the Sixth Circuit’s contrary construction, in part because the Sixth Circuit’s narrower reading would undermine the reporting regime of Faragher and Ellerth and the Court’s broader reading would promote it. Id. at 279, 129 S. Ct. at 852–53. The Crawford Court, echoing Thompson and Burlington Northern, rejected the lower court’s construction because it gave “prudent employees . . . good reason to keep quiet.” Id., 129 S. Ct. at 852. “This is no imaginary horrible,” the Court stated, “given the documented indications that ‘[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.’” Id., 129 S. Ct. at 852 (citing Deborah L. Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005), and id. at 37 & n.58 (compiling studies)).

The Court noted that the choice to keep quiet, on the other hand, comes with a penalty: “[I]f she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it ‘exercised reasonable care to prevent and correct [any discrimination] promptly’ and ‘the plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective opportunities provided by the employer.’” Id., 129 S. Ct. at 852 (quoting Ellerth, 524 U.S. at 765).

Yet the Total System rule created that same dilemma here. Had Posten kept quiet, Jiudicy may well have escaped liability for any harassment claim because she failed to take advantage of its corrective policies. But by speaking up, Posten opened herself up to what happened here: Jiudicy defended the harasser, investigated her instead, claimed that she was lying, and fired her. As the Supreme Court noted, “Nothing in the statute’s text or our precedent supports this catch-22.” Id., 129 S. Ct. at 853. Indeed, “[i]t cannot be the case that any employee who files a Title VII claim and is disbelieved by his or her employer can be legitimately fired. If such were the case, every employee could be deterred from filing their action and the purposes of Title VII in regards to sexual harassment would be defeated.” Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 740 (8th Cir. 2005).

Yet Total System not only gives “prudent employees . . . good reasons to keep quiet,” Crawford, 555 U.S. at 279, 129 S. Ct. at 852, it invites employers to do the wrong thing—not remedy the harassment, but defend the harasser and target the accuser. “Employment lawyers even have an expression for [this approach]: the ‘nuts and sluts’ defense. . . . When a woman speaks up and says she’s been sexually harassed or discriminated against, management’s marching orders often are to gather evidence that she’s either crazy or morally challenged.” Victoria Pynchon, Business, Bias and the “Sluts and Nuts” Defense, Forbes (May 19, 2011), available at http://www.forbes.com/sites/shenegotiates/2011/05/19/ business-bias-and-the-sluts-and-nuts-defense; see also Christine Sgarlata Chung, From Lily Bart To The Boom-Boom Room: How Wall Street’s Social and Cultural Response to Women Has Shaped Securities Regulation, 33 Harv. J. L. & Gender 175, 245 n.363 (2010) (same). It should surprise no one that Johnson and his subordinates engaged in precisely that type of investigation of Posten—one focused almost entirely on her sexual history and mental health. “We should be wary of tempting employers to conduct investigations that are less than fully objective and fair.” Swenson v. Potter, 271 F.3d 1184, 1196–97 (9th Cir. 2001).

As to rationale three, the concurrence to the denial of rehearing en banc argued that Total System’s narrower construction of the opposition clause “may significantly advance the fulfillment of Title VII’s goals by encouraging employers to take responsibility, to engage in self-examination, and to resolve—speedily, internally and voluntarily—disputes involving claims of discrimination.” 240 F.3d at 904 (Edmondson, J., concurring in the denial of rehearing en banc).

But Crawford makes clear that this rationale also is not defensible, finding that “argument . . . unconvincing, for we think it underestimates the incentive to enquire that follows from our decisions in [Ellerth and Faragher].” 555 U.S. at 278, 129 S. Ct. at 852. Ellerth and Faragher’s affirmative defense, the Court said, provides employers the “strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.” Id. at 278–79, 129 S. Ct. at 852 (noting studies demonstrating that Ellerth and Faragher prompted employers to strengthen procedures for investigating and correcting discriminatory conduct). A narrow construction of the antiretaliation provision therefore is not needed to encourage employers to investigate allegations of harassment, but, as Thompson, Burlington Northern, and Crawford make clear, a broad construction is needed to provide employees with the necessary protection to encourage them to report harassment. Total System cannot be reconciled with that mandate. “Where precedent binding upon this court cannot be reconciled with a subsequent Supreme Court decision, we must defer to the Supreme Court.” In re Emp’t Discrimination, 198 F.3d at 1319.

Finally, Total System also is inconsistent with the plain language of the statute. It makes it unlawful for an employer to discriminate against an employee “because he has opposed any practice made . . . unlawful . . . by this subchapter.” 42 U.S.C. § 2000e-3(a). The legal question of whether the activity is protected turns on the employee’s state of mind—whether she believed in good faith that she was engaging in a protected activity. Lipphardt, 267 F.3d at 1187. And if the employer terminates her because she engaged in protected activity, Title VII’s antiretaliation provision is violated, regardless of what the employer thought. Title VII contains no affirmative defense based on the employer’s mistaken belief that the activity was not protected. This makes sense. An employer’s opinion about what is lawful—no matter how it arrives at that opinion—is irrelevant to whether the activity is in fact lawfully protected. See, e.g., Crawford, 555 U.S. at 280, 129 S. Ct. at 853 (rejecting employer’s view as to what is protected opposition); cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

Posten engaged in protected activity—complaining in good faith about sexual harassment—and Jiudicy, by its own account, fired her for doing so. Claiming that they disbelieved her does not save them from liability, when, as is the case here, Posten was telling the truth.

B. At the very least, summary judgment is precluded when an employer claims it fired the employee for making a false accusation of harassment and the employer fails to demonstrate that its belief is a good-faith one supported by some independent corroboration.

If this Court nonetheless concludes that the Total System rule survives Thompson, Burlington Northern, and Crawford, it should take this opportunity to clarify that employers may invoke this defense only after they have engaged in a good-faith investigation and only when their conclusions are corroborated by independent verification. Such a requirement would give some substance to this Court’s statements that the conclusion that the complaining employee lied is an “honest choice,” Total System, 221 F.3d at 1176, and ameliorate the temptation for employers to target the harassed employee.

Ordinarily, the question of whether an employer honestly believed a complaining employee lied should go to a jury. Richey v. City of Independence, 540 F.3d 779, 784–85 (8th Cir. 2008). “The judgment of assessing witness credibility is normally the province of a fact-finder at a sexual harassment trial. Allowing the employer’s investigation to essentially short-circuit the retaliation claim before it begins is antithetical to the design of Title VII.” Gilooly, 421 F.3d at 741.

In some circumstances, an employer’s proof that the complaining employee was not telling the truth—when supported by independent corroboration—may, as a matter of law, undermine the plaintiff’s contention that she believed in good-faith that she was opposing an unlawful practice. See id. at 740–41 (“Had the investigator found a clearer record of deception and detailed the basis for such findings, a court could find that the firing was not for protected conduct.”). But, when “the belief that [the accuser] was lying was founded solely on the statements of other employees and witnesses,” and “no independently verifiable evidence . . . contradicted [the] allegations,” summary judgment cannot be granted to the employer. Id.

Here, the belief that Posten was lying was founded solely on the account of four people—all employees. One of them was the harasser, another was the co-founder of the company who himself had been recently accused of sexual harassment, the third admitted that he predetermined that Posten was lying and understood that “all [he] was looking for was to say to my superiors . . . that she has done this before,” and the fourth, Johnson, intimated that Posten was a “slut” who “encouraged Morrow to make obscene phone calls.” See supra pp. 7–20. Pinnock was the only outside person involved, and he disputed nearly everything that Beresford and Giudicy claimed he said. See supra pp. 14–16. “Without . . . additional corroboration [from independent, unbiased sources], the statements in the termination letter amount to little more than a description of conflicting stories with the employer disbelieving [Posten’s] version of the events.” Gilooly, 421 F.3d at 740. Summary judgment should be reversed on that ground alone.

C. The Total System defense does not apply to sham investigations.

Even without an independent-corroboration rule, a jury could conclude that the whole investigation of Morrow was not a good faith one, but a sham. Viewing the facts in the light most favorable to the EEOC, it is apparent that Johnson “cared little about the evidence and instead applied whatever rationale he could muster to justify a predetermined outcome.” Castilho de Oliveira v. Holder, 564 F.3d 892, 894 (7th Cir. 2009). Thus, Total System’s good-faith defense cannot save Jiudicy from liability. See 221 F.3d at 1176 (defense available only when it is an “honest choice”).

A reasonable jury could conclude that Johnson, from the beginning, sought not the truth, but to get Posten. Johnson, who was “deathly afraid” of lawsuits, was angry that he was not contacted first about the harassment, ignored any evidence that supported Posten’s claim, sided with Morrow after a less-than-thirty-minute telephone conversation, threatened to fire Posten in his first conversation with her, and directed his investigators—one of whom was his right-hand man who himself had been recently accused of harassment—to find proof that Posten was lying. See supra pp. 7–14. When the investigators failed to find that, they simply invented support for that conclusion. See supra pp. 13–17. And when Johnson did fire her—less than three full days after her complaint—he gave seven independent reasons, many of which he admits he does not believe, some of which are in fact admissions of retaliation, and others are so contradicted by the factual record that a factfinder could reject them as a pretext for retaliation. See supra pp. 17–18, and infra pt.III.

Even assuming that Johnson believed that Posten falsely accused Morrow only after hearing his investigators’ fabricated evidence—a dubious assumption on this record—Johnson’s reliance on Giudicy and Beresford cannot save Jiudicy from liability. “[I]f a supervisor performs an act motivated by [illegal] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.” See Staub v. Proctor Hosp., 562 U.S. __, 131 S. Ct. 1186, 1194 (2011) (emphasis omitted); Pennington v. City of Huntsville, 261 F.3d at 1262, 1270 & n.5 (11th Cir. 2001) (explaining that a causal connection may exist where the termination decision is “tainted” by the retaliatory animus of a subordinate employee); Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999) (per curiam) (same); Wright v. Southland Corp., 187 F.3d 1287, 1304 n. 20 (11th Cir. 1999) (same). That Beresford and Giudicy fabricated Pinnock’s story—claiming that he accused Posten of sexual misconduct, drug use, and falsely accusing others of harassment—is proof of retaliatory intent. See, e.g., Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1069 (3d Cir. 1996) (en banc) (fabricating evidence in a retaliation case is proof of retaliatory animus).

Because, under any standard, a jury could reject Johnson’s contention that he had a good-faith belief that Posten falsely accused Morrow, to survive summary judgment the EEOC need not rebut any of Jiudicy’s asserted reasons.

III. A reasonable jury could conclude that Jiudicy’s asserted reasons were a pretext for retaliation.

Assuming, nonetheless, that the EEOC must still rebut Jiudicy’s asserted reasons, the relevant question is whether a factfinder, viewing the evidence in the light most favorable to the plaintiff, could conclude that Jiudicy’s asserted reasons for the termination were a pretext for retaliation. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). Ordinarily, when faced with multiple legitimate non-discriminatory reasons, a plaintiff shows that none of those reasons is real by meeting each “head on and rebut[ting] it.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). What a plaintiff cannot do to show pretext is “quarrel with the wisdom of that reason.” Id. “This accords well with common sense, for, if the inference of discriminatory animus arises from the failure of all legitimate reasons offered by the defendant, then the inference is inappropriate where one or more legitimate reasons remain unrebutted.” Id. at 1050 (Birch, J., concurring in part and dissenting in part).

A plaintiff, therefore, can meet “head on and rebut” each reason by surgically exposing why each reason is not the reason, or in other circumstances, the plaintiff can meet “head on and rebut” reach reason using a blunter instrument. For example, “common sense . . . counsels that there are some situations where the failure of one asserted reason may affect the reliability of other proffered reasons.” See id. (Birch, J., concurring in part and dissenting in part); see also Keaton v. Cobb Cnty., No. 08-11220, 2009 WL 212097, at **9–10 (11th Cir. Jan. 30, 2009) (assuming an exception to Chapman’s “head-on” rule).

As such, this Court and its sister circuits have recognized several instances where meeting each specific reason “head on” and rebutting it is not necessary so long as the plaintiff produces enough evidence to cast doubt on all the reasons as a total package. There is no need to specifically address each reason when the facts show that: (1) the prima facie case is particularly strong; (2) a strong temporal correlation between the protected activity and the adverse employment action exists; (3) the decisionmaker is mendacious; (4) the decisionmaker’s reasons shift overtime or are inconsistent; or (5) the decisionmaker offers a multitude of reasons. Each could be enough to rebut Jiudicy’s reasons in toto, but all apply here.

A. All of Jiudicy’s reasons are rebutted.

1. Strength of the prima facie case.

Again, the evidence that Johnson’s entire investigation was a sham and designed only to justify a predetermined outcome is strong. “[A]n ‘extremely strong’ prima facie case may lend special probative force to a claim of pretext. Indeed, an especially strong prima facie case combined with a relatively weak rebuttal by the defendant may entirely obviate any need for further inquiry into pretext.” Smith v. State, 749 F.2d 683, 689 (11th Cir. 1985); see also Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 n.4 (D.C. 1998) (noting that Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10, 101 S. Ct. 1089, 1095 n.10 (1981) “strongly suggests that a prima facie case that strongly suggests intentional discrimination may be enough by itself to survive summary judgment”); see also Reeves, 530 U.S. at 148, 120 S. Ct. at 2109 (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”).

Based on this, a factfinder could conclude that Johnson’s justifications are false, and that he engaged in retaliation. No further rebuttal is required.

2. Strong temporal correlation between the protected activity and the adverse employment action.

The fact that Johnson fired Posten less than 48 hours after he first talked to her—that is his account—also supports an inference that Johnson’s stated reasons were just a pretext for retaliation. See Jones v. Bernanke, 557 F.3d 670, 679–80 (D.C. Cir. 2009) (close proximity in time between protected activity and adverse action may suffice to raise inference of retaliation both for purposes of establishment of prima facie case and as to ultimate issue); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir. 1998) (“strong temporal correlation” may support finding of pretext); id. (reversing summary judgment where there was strong temporal correlation and employer’s evidence of nondiscrimination came from two supervisors whom plaintiff accused of harassment).

Even Beresford understood this common-sense idea, testifying that firing Posten when they did—“in the midst of investigation”—“raised questionable doubt” in his mind as to whether they had “appropriate grounds to terminate.” R.105-8, at 27.

3. Johnson and his subordinates are mendacious.

A plaintiff need not specifically rebut each nonretaliatory reason when the defendant is simply incredible. For example, in Donnellon v. Fruehauf Corp., this Court affirmed a retaliation judgment in favor of the employee even though she offered no evidence specifically rebutting the employer’s asserted nonretaliatory reasons, because she was fired only one month after filing her discrimination claim and the district court in a bench trial found the employer’s witnesses incredible. 794 F.2d 598, 601–02 (11th Cir. 1986). “[T]here may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation [and] this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual.” Burdine, 450 U.S. at 255 n.10, 101 S. Ct. at 2109 n.10.

Here, Johnson, Beresford, and Giudicy’s lies pile up. Johnson:

· Claimed that he found drugs in Posten’s drawer. R.105-9, at 41. Beresford said he did. Posten said there were no drugs. See supra p. 17.

· Claimed that Posten’s phone records were unavailable, but Beresford had them and testified that he faxed them to Johnson at Johnson’s request. See supra pp. 12.

· Claimed that Beresford could not obtain the police reports. R.105-9, at 47. Beresford testified he got a report. R.105-8, at 25.

· Testified that he believed Posten to be shy and naïve; he later intimated that he thought she was a slut, and accused her of being a seductress who encouraged sexual advances. See supra pp. 12, 19–20.

· Claimed both that he believed that Morrow did not make the calls and that he did. See supra pp. 19–20.

· Said he fired Posten for filing charges during work hours and on company property, R.105-9, at 43, but he knew that she filed charges during her lunch break and off-premises, see supra p. 12.

· Testified he told Beresford to contact Pinnock to see if Pinnock was making the obscene calls. Beresford said Johnson wanted him to contact Pinnock to find evidence that Posten had filed false sexual harassment claims in the past. See supra pp. 13–14.

· Listed seven reasons for the firing on the termination notice. Beresford was told that Johnson was terminating Posten for failing to follow procedures, which was not one of the seven. Johnson testified and told Giudicy that there was really one reason for her termination—untruthfulness. And Johnson admitted that he did not believe several of them himself. See infra pt.III.

· Claimed that he assumed that Posten stole her personnel file because she was the only who had access to it because he had sent Morrow and Beresford to a different office. Johnson knew this was a lie because he had directed Beresford to investigate Posten at the Cumming office. Johnson also inspected the file and testified that nothing was missing. Even Morrow was in the office at some point. See infra subpt.III.B.6.

· Testified that “no one” ever determined that Morrow made the calls. Johnson later admitted that was not true. R.105-9, at 20.

· Claimed that Jiudicy provided sexual harassment training. R.105-9, at 51. Employees were not trained. R.105-8, at 6.

In addition to the ones mentioned, Beresford:

· Testified that Pinnock told him that Posten falsely accused him of harassment. Pinnock denied that. See supra pp. 14–15.

· Testified that Pinnock told him that Posten falsely accused others of harassment. Pinnock denied that. Id.

· Claimed that Pinnock told him that the Hospital fired Posten for making false harassment allegations. Pinnock denied that. Id.

· Claimed that Pinnock told him that he called Labor Finders’s offices looking for Posten. Pinnock denied that, saying he never contacted Posten after she left Northside. Id.

Giudicy:

· Claimed he called Posten accidentally. Posten said she called him on her cell while she was filing charges against Morrow. See supra pp. 15–16.

· Said that his purpose in meeting with Pinnock was to determine whether Pinnock made the obscene calls. Yet Pinnock testified that Giudicy never asked him about the calls. Instead, according to Pinnock, Giudicy talked mostly about his concern for Morrow. Id.

· Said that Pinnock told him that Pinnock admitted calling her. Pinnock denied that. Id.

· Said that Pinnock told him that Posten had accused cafeteria workers, and even customers, of sexual harassment. Pinnock denied that. Id.

· Said that Pinnock told him that Posten abused drugs. Pinnock denied that. Id.

The mendacity of Johnson, Beresford, and Giudicy should enable the EEOC to survive summary judgment, because “[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.” See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749 (1993). No further rebuttal is required.

4. Shifting reason and inconsistencies

Johnson admitted, as he must, that his reasons for Posten’s firing have shifted over time. See supra p. 19. Beresford was told that Posten was fired for failing to follow procedures, which was not one of the seven reasons listed in the termination notice. See supra p. 18. And when Jiudicy fought Posten’s unemployment claim, it gave the “failing to follow procedures” reason. See supra p. 19. And then when asked about the reasons in the termination notice, Johnson’s explanations shifted some more. See infra subpt.III.B.

“Shifting reasons given by [the decisionmaker] allow [the factfinder to] find [the employer’s] explanation unworthy of credence.” See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194–95 (11th Cir. 2004). “[This Court] has recognized that an employer’s failure to articulate clearly and consistently the reason for an employee’s discharge may serve as evidence of pretext.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298–99 (11th Cir. 2006). No further rebuttal is required.

5. Multitude of reasons.

Jiudicy offers a dizzying array of reasons for terminating Posten—at least seven—which itself rebuts Johnson’s reasons. “An employer’s strategy of simply tossing out a number of reasons to support its employment action in the hope that one of them will ‘stick’ could easily backfire” such that “a multitude of suspicious explanations may itself suggest that the employer’s investigatory process was so questionable that any application of the ‘honest belief’ rule is inappropriate.” Smith v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir. 1998).

Here, a two-day investigation that focused on Posten’s sexual history and mental health led Jiudicy to articulate (at least) seven independent reasons to terminate her. It cannot be said that a jury, as a matter of law, must accept that any of those reasons was the real reason for the termination and her protected activity had nothing to do with it. The jury only has to conclude that “retaliatory animus was one factor in the adverse employment decision.” Brown, 597 F.3d at 1182. The multitude of suspicious reasons alone rebuts Jiudicy’s reasons.

Jiudicy may respond by arguing that it did not reach seven independent reasons, but only one. As Johnson testified, “these seven responses go to her untruthfulness and lack of credibility, and that’s why she was fired, and I did it. It wasn’t Giudicy or anybody else.” R.105-9, at 44. “There may be cases in which the multiple grounds offered by the defendant for the adverse action of which the plaintiff complains are so intertwined,” that a rebuttal to one is a rebuttal to all. See Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995) (“There may be cases in which . . . the pretextual character of one of [the reasons] is so fishy and suspicious, that the plaintiff could withstand summary judgment.”). Because, as discussed, a reasonable jury could reject the notion that Johnson honestly reached the conclusion that Posten was lying, summary judgment should be reversed.

Given all this—the strength of the prima facie case; the strong temporal correlation between the protected activity and the adverse employment action; Johnson, Beresford, and Giudicy’s mendacity; Johnson’s shifting reasons and inconsistencies; and his multitude of reasons—the jury can simply reject all his reasons. A specific rebuttal of each therefore is unnecessary.

B. Each of Jiudicy’s asserted reasons is a pretext for retaliation.

Assuming the EEOC must specifically rebut each of Johnson’s seven reasons in the termination notice, it has met its burden of raising factual disputes on each. This discusses the first asserted reason in the notice last, but considers the rest in the order listed.

1. Refusal to cooperate in the investigative process.

The district court appeared to recognize that this reason was rebutted. R.134, at 24–25. Johnson admitted that he did not really believe it either—he testified that Posten never refused to talk to him. R.105-9, at 42–43. When asked whether, “If . . . Posten says, ‘I never said I refuse[d] to talk to the president of the company,’ that’s another situation where we have disagreement on what the facts are, right?,” he testified, “In my opinion, there’s no disagreement.” R.105-9, at 42–43.

Giudicy, on the other hand, claimed that Posten told him that she would only speak with him. R.105-11, at 33. But Posten specifically denied telling Giudicy that. R.105-3, at 49. And in fact, she spoke with Beresford, Giudicy, and Johnson, and never refused to speak to any of them. Id. Beresford likewise agreed that justification number two was untrue, agreeing that Posten was cooperative during the investigation. R.105-8, at 26.

This reason is rebutted.

2. Alleging that she was going to file a restraining order on coworker.

Johnson explained this reason: “She was alleging that she was going to call the police and file a restraining order on Morrow while she’s on my business property . . . . And she’s doing this because of her false belief that he’s doing something to her.” R.105-9, at 43. Johnson also admitted that he thought Morrow made the calls. Id. at 22.

The district court credited this reason, concluding that if the employer believed in good faith that Posten had fabricated the sexual harassment claim, it “cannot allow the employee to compound her misdeeds by filing a restraining order based on that false claim.” R.134, at 25.

That is wrong. First, this is not a legitimate, nonretaliatory reason. Reporting criminal activity is a protected activity, especially when it is “intertwined and interrelated with alleged sexual harassment.” See Scarbrough v. Bd. of Trustees Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Cir. 2007). “Accepting [the district court’s and Johnson’s] rationale would, for example, permit the termination of an employee who reported a rape by a supervisor to the police,” if the employer disbelieved the rape victim. Id. Johnson may not limit Posten’s access to law enforcement or the courts. “Cast in the light most favorable to [her], [Posten’s complaint] to the police constituted protected activity under Title VII.” Id.

Second, Johnson’s justification makes no sense. Johnson, Giudicy, and Beresford all knew that Posten was filing charges against Morrow and none objected. R.105-3, at 49. Giudicy even testified that he believed an individual has the right to file a restraining order against a harasser. R.105-11, at 33.

This reason is rebutted.

3. Refusing to provide telephone number of lawyer.

Johnson testified that this “go[es] along with Number 2[, number one in this list], the refusal to cooperate with the investigation.” R.105-9, at 42–43. Yet he admitted that Posten never refused to cooperate with him. Id. Moreover, Johnson claimed that this stemmed from the fact that he asked Posten for her attorney’s phone number and she “refuse[d]” to give him her attorney’s phone number. Id. at 37–38. But Posten denied this, testifying that she never refused to provide the number. R.105-3, at 37, 49. Indeed, Posten gave Johnson the name of her attorney and provided the phone number to Beresford. R.105-9, at 37; R.105-3, at 37, 49.

The district court recognized that this reason was rebutted. R.134, at 25.

4. Falsely accusing a loan consultant of making harassing telephone calls.

Johnson admitted that this was not a real reason for Posten’s termination. R.105-9, at 43. But he said what he meant was not that he believed that Posten falsely accused a loan consultant, but that at the time, Posten lied about filing a police report on December 5. Id. The district court credited the newly-concocted reason, reasoning that although Johnson was wrong about this, Johnson’s belief that Posten was being untruthful about filing the police report was “not unreasonable.” R.134, at 23.

But of course that is not what the justification said—it said that she was fired for a false accusation. This reason is rebutted, therefore, because “shifting reasons given by [the decisionmaker] [would] allow[] [a] jury to find [Johnson’s] explanation unworthy of credence.” See Cleveland, 369 F.3d at 1194–95.

In any event, Johnson’s post-hoc reason makes no sense either. Posten in fact filed a police report on December 5, and the report stated—not that Posten accused the loan officer—but only that she thought it might be him. R.105-6, at 2–3. Johnson admitted that he was wrong about this too—that Posten told the truth about filing a police report on the 5th. R.105-9, at 43. Yet Johnson testified that he did not know that Posten was correct at the time because he had told Beresford to get a copy of the report but Beresford was unable to procure it. Id. at 47. That is not true either: Beresford “remember[ed] getting a police—I got a police report.” R.105-8, at 25. Faced with that, Johnson then concocted yet another reason based on this justification—that he actually fired Posten not because she lied about filing a report, but because she did file a report but did not tell him about it. R.105-3, at 47.

This reason is rebutted, no matter how many different ways Johnson tries to refashion it.

5. Lying on her application for employment by omitting medications taken for a mental health condition.

The district court concluded that the EEOC failed to rebut this reason: “However, defendant’s hasty conclusion that the medication belonged to Posten, whether erroneous or not, does not show pretext. There is no evidence that defendant knew that the medication did not belong to Posten. Given that the medication was found in Posten’s desk drawer, it was not unreasonable for defendant to conclude that the medication belonged to her and that Posten had lied on her application” that she filled out several months earlier which stated that she was currently taking no medications. R.134, at 23.

When asked about this asserted reason, Johnson testified that he (not Beresford) found medication in her desk drawer, and from that concluded that she must have been taking medication when she applied for the job several months earlier. He testified, “I found medication in her desk drawer,” and since her application was filled out months earlier, “that affects her truthfulness.” R.105-9, at 41. He never asked Posten whether she was taking medication. Id. at 40. This too is contradicted by Beresford—he testified that he (not Johnson) found antidepressant medication in Posten’s desk drawer, although he could not explain why he was looking in her desk at all. See supra p 17.

Moreover, Posten specifically denied taking medication and testified that she did not even have a doctor at the time. Id. Jiudicy’s entire tale is predicated on the fact that prescription drugs were found in Posten’s desk drawer. Taking the facts in the light most favorable to the EEOC, the court must conclude that there were no drugs in her desk. A jury could thus reject this reason and instead conclude that Johnson, Giudicy, and Beresford, were trying to mount a “nuts” defense by trumping up some kind of drug charge or mental health issue, but settled on alleging that Posten lied on her application about taking medications.

This reason therefore does not rebut the EEOC’s prima facie case that Johnson was motivated by retaliatory animus, it supports it.

6. Removing sensitive personnel documents from the branch personnel files.

The district court credited this reason as well: “Under the circumstances, it was not unreasonable for defendant to conclude that Posten took the file. Defendant’s conclusion may have been erroneous, but Posten’s denial does not show that defendant knew that Posten had not taken the file or that it did not in fact believe that she did.” R.134, at 22.

First, firing Posten for removing her own personnel documents is not a legitimate, non-discriminatory reason. The Eighth Circuit, for example, has concluded that an employee engaged in protected activity when he inadvertently discovered company documents that he thought evidenced discrimination, turned those documents over to his attorney, and told his supervisor that his attorney would negotiate their return See Kempcke v. Monsanto Co., 132 F.3d 442, 446 (8th Cir. 1998). As that court reasoned, “[E]mployees in these situations have a duty to safeguard the employer’s documents and confidential information. But when documents have been innocently acquired, and not subsequently misused, there [is not] the kind of employee misconduct that would justify withdrawing otherwise appropriate . . . protection.” Id. There is no evidence that Posten misused any company documents.

Second, when asked why it was so bad for her files to be removed—Johnson after all had copies at the Tampa headquarters—Johnson testified that it was terminable in order to protect sensitive personal information—specifically, “Social Security numbers, addresses, cell phone numbers.” R.105-9, at 44. When pressed on what is “dangerous” about Posten having documents that display her own social security number, address, and cell phone number—which she obviously already possesses—Johnson admitted that it was not dangerous for her to have that information. Id.

Third, Posten did not take the file. Johnson testified that when Posten’s file went missing, he was sure she stole it because she was the only one in Cumming, claiming that he had sent Beresford and Morrow to Gainesville. Id. But that is untrue. Beresford, at Johnson’s direction, was in the office alone without Posten—he admitted that he went through her desk drawers and personnel files while Giudicy was there with him. R.105-8, at 33–34. Even Morrow was allowed to return to the Cumming branch “at some point in time” during the investigation. Id. at 13. And Beresford testified that Posten’s personnel file was not even available to Posten—it was kept in a locked file cabinet in Beresford’s office—and Beresford personally reviewed it, testifying that he had no recollection that anything was missing from the file. R.105-8, at 25, 29, 34. Posten likewise denied removing any documents. R.105-3, at 37. Even Johnson admitted that he reviewed Posten’s personnel file and has no knowledge that anything was actually removed from the local file. R.105-9, at 28.

This reason does not rebut the EEOC’s prima facie case; it too supports it.

7. Falsely accusing coworker of making harassing telephone calls to her.

Finally, the district court granted summary judgment relying on this reason, primarily based on its application of Total System. It decided that after a good-faith investigation, Jiudicy concluded that Posten had lied about the harassment, reasoning that “plaintiffs have not presented sufficient evidence to raise a factual question as to whether Johnson lacked a good faith belief that Posten falsely made the accusation,” and that “[n]othing [in the investigation] demonstrates bad faith, intellectual dishonesty, or retaliatory animus.” R.134, at 11–12.

This reason should be rejected for the reasons discussed supra—there is no good-faith defense to the antiretaliation provision. And if there is, some independent investigation is required to invoke it. And besides, the entire investigation was a sham.

But there is yet another reason to reject this assertion: Johnson does not really believe it, and he said so. When asked whether he actually believed that Morrow had made the obscene phone calls, he said he did, but that Posten “encouraged all this alleged misbehavior from at least three individuals.” R.105-9, at 22. His real reasons were unhinged—intimating that he thought Posten was a “slut,” he decided that Posten “bragged” about the obscene phone calls, “show[ed] risqué pictures of herself on the computer”; “encouraged Morrow to make obscene phone calls”; and was even being “unwelcomely friendly physically with” Beresford during the investigation. Id. As for whether Morrow made the harassing calls, Johnson said, “[t]here was probable cause there, yeah, whatever.” Id. at 48.

All of Johnson’s reasons are specifically rebutted.

CONCLUSION

The purpose of Title VII’s antiretaliation provision is to encourage employees to complain about unlawful discrimination so that problems can be resolved in the workplace without litigation. Title VII does that by telling employees that their employer cannot retaliate against them when they do complain. Jiudicy, on the other hand, has sent a different message to its employees: complain about sexual harassment and you will face what Melissa Posten faced—the harasser will be defended, your sexual history and mental health will be investigated, company officials will fabricate evidence about you and drag your name through the mud, and in the end, you will be fired. Jiudicy’s actions are unlawful, and its message must not be countenanced. The Commission asks this Court to reverse the judgment of the district court and remand the case for a trial.

Respectfully submitted,

P. DAVID LOPEZ /s/ Eric A. Harrington

General Counsel ERIC A. HARRINGTON

Attorney

LORRAINE C. DAVIS

Acting Associate General Counsel U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

CAROLYN L. WHEELER Office of General Counsel

Assistant General Counsel 131 M Street, NE

Washington, DC 20507

(202) 663-4716

eric.harrington@eeoc.gov

[1] “R” refers to the district court docket number.