There have been various cases that have addressed whether human-resource professionals may benefit from the anti-retaliation provisions of federal employment law when they are fired for investigating or pursuing an EEO claim, as part of their duties. In this fascinating case, the Eleventh Circuit (dividing 2-1) holds that an HR manager who the company believed "encouraged or even solicited" an employee to sue her employer was protected by Title VII.
Gogel v. Kia Motors Mfg. of Georgia, Inc., No. 16-16850 (11th Cir. Sept. 24, 2018): The plaintiff worked as a Team Relations Manager at Kia's West Point, Georgia plant. The "overall purpose" of the Team Relations department was to "support an environment of positive team relations." Among her duties were "conducted investigations into policy violations, including attendance issues and allegations of harassment or discrimination." Between the lines, part of Gogel's job was to smooth over differences between the American employees and Korean-national management.
In 2008, a Kia employee named Ledbetter complained to Gogel about what she saw as favoritism towards another woman (Morris) who was supposedly in a relationship with the Korean-national president of Kia (named Ahn). Gogel took the complaint up the chain in her department to her boss (Jackson), and was allegedly ordered not to pursue it. Ledbetter had also complained to Gogel about other behavior that she considered sexist, including that "unlike her male colleagues, she was made to practice saying, 'welcome Chairman,' while holding flowers to practice greeting visiting male Korean executives." "From 2008 through 2010, Ms. Gogel and Ms. Ledbetter met several times to discuss these types of complaints." Ledbetter eventually filed suit against Kia.
In 2009, Gogel was not given the same Head of Department designation as a male colleague named Tyler. "Gogel later concluded she was not promoted because of gender discrimination and her investigation of Ms. Morris's relationship with President Ahn." Gogel, in 2010, filed an EEOC charge alleging sex and national-origin discrimination. Management then approached Gogel, ordering her to sign a document promising "not discuss [her] EEOC charge or similar claims against [Kia] with Team Members and [ ] not use [her] position to solicit or influence Team Members to make claims against [Kia]," or to enlist the help of employees to gather information related to her claim. Tyler himself also filed an EEOC charge against Kia. Reportedly, all three employees shared a lawyer.
At the beginning of 2011, Kia management pulled Gogel into a meeting and "accused [her] of colluding with Ms. Ledbetter to file an EEOC charge." She was led from the building by security and then fired by letter. The decisionmaker (Jackson) testified that "he was 'totally convinced' Ms. Gogel 'had solicited and encouraged other team members to file a lawsuit against the company.' He considered this conduct to violate Ms. Gogel's job duties as Manager of Team Relations. In light of this, he 'lost total confidence and trust in her to perform . . . job duties that she was hired to do, and [he] could not continue her employment with Kia.'"
Gogel brought suit alleging discriminatory and retaliatory termination claims under Title VII and 42 U.S.C. § 1981. The district court granted summary judgment on all claims.
The panel majority reverses dismissal of the retaliation claim. Kia's principal argument was that "when a human resource employee ... helps another employee file a discrimination charge, that conduct is unreasonable and not protected activity." The court disagrees. "[N]ot all opposition to employment practices by human resource employees is unreasonable. Indeed, prohibiting all such opposition by human resource employees would be contrary to the text of Title VII." The court applies "the same case-by-case balancing test for human resource employees that we use for any other employee, to determine whether the manner of their opposition was reasonable."
The panel majority notes that an employer needs to be able to rely on its HR staff to loyally carry out EEO policies, "to achieve voluntary compliance with Title VII," and that when "when a human resource employee handling another employee's complaint deviates from an internal reporting procedure, the manner of the HR employee's actions may be unreasonable." On the other hand, "[a] human resource employee who tries to resolve complaints internally but fails due to the inadequacy of her employer's procedures furthers the 'purpose of the statute and the need to protect individuals asserting their rights' by going outside the employer's internal procedures." Thus, "sometimes striking that balance will require accepting an employee's opposition to discrimination as protected activity where the employee has stepped outside the bounds of work rules to do so."
The panel majority holds that a jury could find that Gogel's opposition was reasonable. Despite Gogel's attempts to take Ledbetter's original complaints to management, she was rebuffed and told not to investigate.
"In addressing Ms. Ledbetter's complaint, Ms. Gogel tried to use Kia's internal framework, but Mr. Jackson forbade Ms. Gogel from investigating. And soon after she was secretly authorized by Mr. Kim to conduct an investigation into the relationship, he told her to stop the investigation and destroy any notes that she had taken."
At that point, the majority observes, a jury could find that "Kia's internal framework was exhausted." Gogel gave Ledbetter the name of a lawyer only after years of not getting the company to take her allegations seriously. "Thus, applying the balancing test ... and viewing the evidence in the light most favorable to Ms. Gogel, we conclude that the manner of her opposition was reasonable and her conduct was protected activity."
On Gogel's discrimination claim, though, the unanimous panel affirms summary judgment. "[T]he record strongly indicates that Kia fired Ms. Gogel for assisting Ms. Ledbetter with her charge. Although this evidence supports Ms. Gogel's retaliation claims, none of it shows the real reason for her firing was gender or national origin discrimination."
In dissent, Judge Julia Carnes would hold that Gogel's "act of soliciting another employee to file a claim-when that action violates an essential duty of an employee's [human resources] job-is per se unreasonable." Because (in the dissent's view) "Gogel's action so conflicted with her essential job duties that it rendered her ineffective in her position," it was "not protected activity" and "constituted a legitimate basis for her termination."