The Seventh Circuit enters into a long-standing split about what level of protection – for purposes of the Title VII anti-retaliation section – an employer must give the employee’s “participation” in an internal harassment investigation prior to an EEOC charge being commenced. “Participation” means, under the statute, “because [the party] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” While some circuits have treated this section as essentially a litigation privilege, with nearly absolute protection against retaliation (even if the complaints are frivolous or false), the Seventh Circuit holds that (1) there is a good-faith requirement for “participation,” and (2) in any event, “participation” means only involvement in an official Title VII proceeding.
Hatmaker v. Memorial Medical Center, No. 09-3002 (7th Cir. Aug. 30, 2010): The plaintiff, a woman who was a part-time hospital chaplin, bristled under the leadership of chaplin director Rev. Stafford, whom she believed to be male chauvinist and a “good ole boy.” She complained in an email to HR officer Hester that “in several conversations I have had with him he quickly referenced his 2 divorces and his distrust/discomfort with women; however, his obvious attraction to/fear of women raises many questions for me about whether he has
addressed or been addressed by this significant issue in his Clinical Pastoral Education.”
Hester, over Hatmaker’s objection, initiated an internal EEO investigation in which he ultimately concluded that Stafford did not create a hostile work environment for women. Hester also concluded, though, that Hatmaker’s remarks about Stafford during the investigation were incendiary and in need of serious correction:
“[Hester’s] investigator reported her as saying in the interview that Stafford ‘puts down women’ -that he was ‘a Southern Baptist and a ‘good ole boy’ and therefore has inherent sexist attitudes.’ She said that in his shoes she would have sought therapy. In a follow-up email to the investigator she said that the fact that a rabbi and a priest had written ‘raving reviews for Greg as director’ was no surprise because ‘they both come from traditions from which female clergy are excluded.’ She further expressed concern that no female clerics had been asked to speak at a memorial service for Stafford’s predecessor, a woman who Hatmaker thought would have wanted
female clerics to share the podium. She compared this omission to the ‘recent Don Imus debacle in regard to the Rutger’s WOMEN’s basketball team’ (Imus had called the players on Rutgers’ women’s basketball team ‘nappy-headed hos’), when ‘instead of black female
clergy being interviewed or asked to speak to the issue, Al Sharpton and Jesse Jackson were the chosen male spokespeople.”‘
Hester first suspended Hatmaker for 30 days, then fired her when she did not “express [a] willingness to put her feelings about Stafford behind her.” Hatmaker alleged that this discipline was retaliatory. The district court granted summary judgment to the employer.
The Seventh Circuit affirms for two independent reasons.
First, the panel finds that even under the “participation” prong of Title VII’s anti-retaliation section, an employee’s misbehavior during an internal investigation is not insulated from ordinary workplace discipline. “This includes making frivolous accusations, or accusations grounded in prejudice” (the crux of the problem being that Hatmaker singled out race and religion in her email, using these issues to discredit Stafford). On this score, the panel recognizes that some circuits have allowed employees latitude to make “defamatory and malicious accusations . . . in the course of an EEOC investigation cannot be a lawful ground for discipline. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989); Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980).” And yet the panel expresses incredulity at this stance: “these courts can’t believe that forging documents and coercing witnesses to give false testimony are protected conduct.”
Second, the panel also holds that the only kind of investigation covered under the “participation” clause are official proceedings: “A purely internal investigation does not involve a ‘charge,’ or testimony, and neither is it a ‘proceeding’ or a ‘hearing.’ To bring an internal investigation within the scope of the clause we would have to rewrite the statute. We therefore join the courts that interpret the participation clause as being limited to official investigations. . . . We take no position on whether participation in an internal investigation begun after a charge is filed with the EEOC should be treated as participation in the official investigation, on the ory, embraced by some courts, that any fruits of the participant’s activity are bound to feed into that investigation.”
The court also affirms summary judgment on the alternative theory that plaintiff’s cooperation in the investigation was “opposition” to a sex-discriminatory practice, holding that the employee pointed no activity that Stafford engaged in that might be construed as a violation of Title VII.
Armed with this case, the plaintiff’s lawyer – it would seem – now knows that the employee’s best chance of protecting him- or herself from retaliation is to invoke the EEOC’s processes sooner rather than later. The ruling leaves the employee with only uncertain protection during an internal investigation unless (possibly) it is attendant to answering the EEOC’s inquiries from the outside. The filing of a charge, though, is fully protected provided that it is honestly filed (an honesty reinforced under Title VII by the charge verification requirement).