By Brandi O. Brown, J.D.
Explaining that “not all opposition to employment practices by human resource employees is unreasonable,” the Eleventh Circuit reversed a summary judgment ruling against an HR employee who was fired because her employer believed she had encouraged or solicited another employee to file an EEOC charge. She had given another employee her attorney’s name. A human resources worker who tries to resolve a complaint internally, but is unable to do so because of the inadequacy of her employer’s procedures, the court explained, furthers the purpose of Title VII when she goes outside of those procedures. In this case the employee had attempted to follow those procedures, but her efforts were consistently stymied by her supervisor. Judge Carnes dissented (Gogel v. Kia Motors Manufacturing of Georgia, Inc., September 24, 2018, Martin, B.).
Employee complains to HR. In 2011, the employee was fired by her employer, Kia Motors Manufacturing of Georgia, Inc., because it believed she had “encouraged or even solicited” another employee to file an EEOC charge. The employer argued that it was not the act, but the manner in which the employee had acted, that was unreasonable. It argued that when an HR employee helps another worker file a discrimination charge, that conduct is not protected because it is not reasonable. Indeed, early into her tenure with Kia, the employee received complaints from the other employee, a General Affairs Specialist, about several matters, including an inappropriate relationship between the specialist’s supervisor and the company president and disparate treatment of male and female employees. The HR employee’s supervisors prevented her from investigating. In addition to the inappropriate relationship, the specialist also complained that she was made to do things that her male counterparts were not made to do, including holding flowers and greeting male Korean executives and serving them wine.
HR employee gives out attorney’s name. The HR employee also experienced what she believed was discriminatory treatment, including being passed over for a department head designation, while her male colleagues were given the designation. She complained to her supervisor, to no avail. And other employees, male and female, also expressed concerns about how they were treated by the Korean management. One male coworker drafted a “Report of Concerns” about these issues. He later filed an EEOC charge and used the same attorney as the HR employee and specialist. The HR employee filed her own EEOC charge and, upon being asked, gave the name of the attorney she was considering using to the specialist.
The latter subsequently filed an EEOC charge as well. The HR employee and the report-writing employee were both suspended and fired. The specialist was not fired, but ultimately resigned. After receiving a right to sue notice, the HR employee filed suit, alleging discrimination and retaliation claims under Title VII and Section 1981. The district court granted the employer’s motion for summary judgment and the employee appealed.
Kia argues HR employee’s actions were unreasonable. While Kia conceded that the HR employee had made out a prima facie case of retaliation, it argued that it had a reasonable belief she had encouraged or solicited the specialist to file her EEOC charge, rather than to handle it internally. The employer acknowledged that such assistance, in most circumstances, is protected activity, but said it was the “manner” in which the employee had encouraged the specialist that made it unprotected. This argument had its roots in prior decisions by the Eleventh and Fifth Circuits. In one precedential decision, Whatley v. Metro. Atlanta Rapid Transit Auth., the Fifth Circuit found unreasonable an HR employee’s actions in assisting another employee with filing a charge with an administrative body. The HR employee in that case had specifically requested that the administrative body investigate that charge, even though the employer had a procedure in place for internal investigation of such charges.
Not all opposition by HR is unreasonable. “However,” the appeals court explained, “not all opposition to employment practices by human resource employees is unreasonable.” And, in fact, prohibiting all opposition by those employees would run contrary to the text of Title VII, which refers broadly to “any . . . employee” who has opposed unlawful practices being protected from retaliation. And while the court acknowledged the inherent conflict generated by HR employees supporting oppositional conduct and still performing their job duties, it noted that the conflict was “overstated” and that an employer’s desire for loyal and productive HR workers could be “entirely consistent” with the statute’s purpose and its emphasis on voluntary compliance. However, voluntary compliance does not occur when the employer’s internal procedures are ineffective. In such a case, the employee furthers the purpose of the statute by going outside of those procedures.
Such was the case here. The employee repeatedly followed her employer’s policy and notified her supervisor of the various complaints made, including her own, and was told the complaints were “opinion” and no investigation was conducted. The same treatment was given to the “Report of Concerns.” In fact, the company president berated the workers for complaining. More importantly, when the employee forwarded the concerns of the specialist to her supervisor, thus attempting to use the internal procedure, she was forbidden from investigating or else no action was taken at all. Thus, the HR employee tried for years to use the employer’s procedures, to no avail, and “her deviation from it furthered the purposes of Title VII, without impacting Kia’s illusory efforts at voluntary compliance.” The court reversed this portion of the summary judgment decision, but it affirmed the decision with regard to the gender and national origin claims.
Dissent by Judge Carnes. Judge Carnes dissented, contending that Kia had a reasonable, good faith belief that the employee had solicited her subordinate to sue and that she clearly had “abandoned her responsibility” to attempt to resolve employee complaints outside of litigation. Her advocacy, Judge Carnes opined, “so violated” her “essential duties that it rendered her ineffective in her job,” and therefore her actions were not protected.
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