In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3002
JANET H ATMAKER,
Plaintiff-Appellant,
v.
M EMORIAL M EDICAL C ENTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-3319—Jeanne E. Scott, Judge.
A RGUED M AY 24, 2010—D ECIDED A UGUST 30, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
P OSNER, Circuit Judge. Janet Hatmaker, a part-time
chaplain employed by Memorial Medical Center, a
hospital in Springfield, Illinois, was fired and brought
this suit against the hospital, charging a violation of 42
U.S.C. § 2000e-3(a). That is the provision of Title VII
that forbids an employer “to discriminate against any
individual . . . because he has opposed any practice
2 No. 09-3002
made an unlawful employment practice by [Title VII], or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation, pro-
ceeding, or hearing under [Title VII].” Hatmaker claims
to have been fired because she “participated . . . in an
investigation . . . under” Title VII. She also relies on
the opposition clause, but places less emphasis on it;
we discuss it briefly at the end of this opinion. The
district judge granted summary judgment for the hospital.
Oddly, when one considers Hatmaker’s emphasis in
this court on the participation clause, it went unmen-
tioned in her complaint. The district court refused to
allow her to raise it in her response to Memorial’s motion
for summary judgment, holding the omission to mention
the clause in her complaint a waiver. That ruling was
mistaken. Although Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
require that a complaint in federal court allege facts
sufficient to show that the case is plausible, see, e.g.,
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.
2008), they do not undermine the principle that
plaintiffs in federal courts are not required to plead
legal theories. See Aaron v. Mahl, 550 F.3d 659, 665-66
(7th Cir. 2008); O’Grady v. Village of Libertyville, 304 F.3d
719, 723 (7th Cir. 2002). Even citing the wrong statute
needn’t be a fatal mistake, provided the error is cor-
rected in response to the defendant’s motion for sum-
mary judgment and the defendant is not harmed by the
delay in correction. Ryan v. Illinois Dept. of Children &
Family Services, 185 F.3d 751, 764 (7th Cir. 1999). Memorial
was not harmed.
No. 09-3002 3
When the director of Memorial’s chaplain staff (see
Memorial Hospital, “Hospital Guide—Pastoral Care,”
www.memorialmedical.com/Guide/PastoralCare/ (visited
Aug. 5, 2010)) took a medical leave of absence, which
turned out to be only a short time before she died, the
hospital appointed Reverend Greg Stafford acting direc-
tor. After the director’s death, the hospital announced
that it was searching for a permanent replacement and
that Stafford was a candidate. Forrest Hester, Memorial’s
Chief Human Resources Officer, who was in charge of
the search and would make the appointment, solicited
the members of the chaplain staff for their opinion of
Stafford. In an email to Hester, Hatmaker expressed
concern “about Greg’s presentation of himself in public
and in representing our department. I have observed
him speak on several formal occasions . . . and was disap-
pointed in his remarks and appropriateness. He ap-
peared to be both uncomfortable with himself and inex-
perienced in that role . . . . If he is chosen to lead our
department I would recommend some mentoring in
this area.” In a follow-up email she expressed “discom-
fort with Greg in a leadership role.” She said “he is
trying so much to be a ‘good ole boy’ and friend that
he sacrifices dignity and leadership in exchange for
popularity . . . . He seems to major in small talk. In
short, he does not strike me as a spiritual statesman.”
Stafford was appointed director. Hatmaker was critical
that the opening for director had not been posted in
“professional publications” before the appointment
was made, as Hester had suggested would be done.
Apparently some other female members of the chaplain
4 No. 09-3002
staff were disappointed with the appointment. Their
reservations were reinforced, according to Hatmaker,
by Stafford’s saying in the presence of female staff mem-
bers that “I have been divorced twice, I don’t do
women well” and that “what teamwork was” was illus-
trated by his being permitted to use the same bathroom
as the CEO and a vice president of Memorial even
though they were his superiors.
Hatmaker emailed Hester that she “continue[d] to
have question marks about Greg’s leadership in rela-
tionship to women,” that other women had expressed
“their discomfort” with him, and that his “seeming (per-
haps unconscious) diminished view of same age
or younger women (he seems to do better with older
women) will affect staffing in the [chaplain division].”
She also wrote: “On a personal level, in several conversa-
tions 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.” She expressed concern
that he had been certified by the College of Chaplains
only provisionally and said: “I can’t help but wonder if
his lack of self knowledge in regard to women and inti-
macy/partnership is part of his provisional acceptance
into this professional organization.” She added: “due to
my concern I plan to send copy letters to both Martha
Sumner on the Board of Directors and [CEO] Ed Curtis,
as well.”
No. 09-3002 5
Upon receipt of this alarming email, Hester decided to
start an investigation; he thought it “important . . . to
rule out any kind of hostile work environment issue
that might exist because the [email] seemed to me to
suggest that that could be the case.” He forwarded
Hatmaker’s email to two employees responsible for
investigating complaints of discrimination and also
told Stafford that she had complained about him.
Stafford denied that he had created a hostile work en-
vironment.
Hester wanted Hatmaker to speak to the investigator.
She was reluctant. She told Hester that “my desire is
for your highly focused oversight of Greg in the future
in regard to the issues mentioned. To give it any more
time or attention is superfluous.” And further that
“Greg is on a path of insight that will not only help him
professionally but for his own happiness. That is where
I would recommend that he have a spiritual direc-
tor/counselor to help him deal with the issues . . . that
I reference.” But Hester insisted that she be interviewed
by the investigator and she yielded. The 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
6 No. 09-3002
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 and the investigator concluded that Stafford
had not created a hostile work environment in the
chaplain division and Hester was disturbed by Hat-
maker’s gratuitous references to Jews, Catholics,
Southern Baptists, Don Imus, Al Sharpton, and Jesse
Jackson. He instructed the investigator to inform her
that “if you are uncomfortable working for Greg and for
the department under Greg’s leadership you should
resign” and that she was “to have no discussions
with other employees regarding their perception or
problems with Greg.” She responded by emailing Hester
and the investigator that she would “direct further con-
cerns and/or communications to Greg directly with the
hope that he will seek professional guidance.” The email
went on and on, indicating her preoccupation with
Stafford. Hester suspended her for 30 days to give her
a chance to express willingness to put her feelings
about Stafford behind her. When nothing happened by
the end of that period he fired her, telling her it was
necessary “for the comfort of all concerned.”
No. 09-3002 7
Her communications to Hester and to the inves-
tigator constituted participation in a purely internal
investigation of possible sex discrimination, and even if
an internal investigation is an “investigation” within
the meaning of the provision of Title VII quoted at the
outset of this opinion (a question to which we’ll return)
she was not fired for participating in it. She was fired
because of comments she made that demonstrated
bad judgment and a preoccupation with superficial
characteristics of her new boss, and for harping on irrele-
vant sensitive issues of religion and race.
An employer is forbidden to discriminate against an
employee who participates in an investigation of em-
ployment discrimination. But participation doesn’t
insulate an employee from being discharged for
conduct that, if it occurred outside an investigation,
would warrant termination. Scruggs v. Garst Seed, 587
F.3d 832, 838 (7th Cir. 2009); Kaytor v. Electric Boat Corp.,
609 F.3d 537, 553-54 (2d Cir. 2010); Gaujacq v. EDF, Inc.,
601 F.3d 565, 577-78 (D.C. Cir. 2010). This includes
making frivolous accusations, or accusations grounded
in prejudice. For it “cannot be true that a plaintiff can file
false charges, lie to an investigator, and possibly defame
co-employees, without suffering repercussions simply
because the investigation was about sexual harassment.
To do so would leave employers with no ability to
fire employees for defaming other employees or the
employer through their complaint when the allegations
are without any basis in fact.” Gilooly v. Missouri Dept. of
Health & Senior Services, 421 F.3d 734, 740 (8th Cir. 2005).
As further explained in Mattson v. Caterpillar, Inc., 359
8 No. 09-3002
F.3d 885, 890-91 (7th Cir. 2004), “Title VII was not
designed to ‘arm employees with a tactical coercive
weapon’ under which employees can make baseless
claims simply to ‘advance their own retaliatory motives
and strategies.’ . . . Were we to adopt a different
standard, an employee could immunize his unreasonable
and malicious internal complaints simply by filing a
discrimination complaint with a government agency.
Similarly, an employee could assure himself unlimited
tenure by filing continuous complaints with the govern-
ment agency if he fears that his employer will discover
his duplicitous behavior at the workplace. This is not an
unrealistic parade of horribles—it is, after all, what may
have occurred in this case. Mattson filed an internal
complaint that was baseless. Had Caterpillar immedi-
ately discovered the evidence that proved Mattson
acted maliciously, both parties agree that Mattson
could have been discharged at that time. However,
Mattson then filed the charge with the IDHR and EEOC
and now argues that he cannot be terminated even
though Caterpillar discovered that both charges were
filed maliciously. If we were to adopt Mattson’s argu-
ments, it would encourage the abuse of Title VII and
the proceedings that it established.”
Some courts disagree. They think that even defamatory
and malicious accusations made in the course of an
EEOC investigation cannot be a lawful ground for disci-
pline. 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) (but in so
No. 09-3002 9
holding, Womack is inconsistent with the Eighth Circuit’s
later decision in Gilooly). To these courts “participated
in any manner” in an investigation seems to mean “par-
ticipated by any and all means” rather than participated
in any capacity, whether formally or informally, whether
as complainant or as a witness, and at whatever stage
of the investigation. But these courts can’t believe that
forging documents and coercing witnesses to give false
testimony are protected conduct. And if they don’t
believe that, why do they think that lying is protected?
Lying in an internal investigation is disruptive of work-
place discipline and in tension with the requirement
that opposition to an unlawful practice (the making
of which is protected by the first clause of section 2000e-3,
see Crawford v. Metropolitan Govt. of Nashville & Davidson
County, 129 S. Ct. 846, 850-51 (2009)) be based on an honest
and reasonable belief that the employer may be violating
Title VII. Magyar v. Saint Joseph Regional Medical Center, 544
F.3d 766, 771 (7th Cir. 2008); Fine v. Ryan Int’l Airlines, 305
F.3d 746, 752-53 (7th Cir. 2002); Manoharan v. Columbia
University College of Physicians & Surgeons, 842 F.2d 590,
593 (2d Cir. 1988).
Even Pettway, the leading case holding that a participant
can’t be fired for misconduct in the course of an inves-
tigation, shrinks from embracing the full implications of
its holding by confining it to cases in which the par-
ticipant makes accusations that shorn of their malicious
and defamatory elements state a claim of discrimina-
tion. 411 F.2d at 1007; see also Womack v. Munson, supra,
619 F.2d at 1298 n. 10. That condition is not satisfied in
this case. It is not a case in which the complaint has a
10 No. 09-3002
valid core and there is merely an unsavory wrapping.
None of the statements that Hatmaker made to the in-
vestigator and Hester, such as her complaints about
Stafford’s reference to his divorces or to the fact that his
boss lets him use the boss’s bathroom, was suggestive
of sex discrimination, and so they didn’t begin to trigger
the retaliation provisions of Title VII. They were com-
plaints about an awkward boss who the plaintiff
thought might become a problem in the future. Her
emails do not accuse him of discrimination and her dep-
osition states that she was just trying to head off the
possible future emergence of a hostile work environment.
When she said that Stafford was “a Southern Baptist and
a ‘good ole boy’ and therefore has inherent sexist attitudes”
(emphasis added), she was trafficking in stereotypes
by attributing “sexist attitudes” to assumed tenets of
his religion or to attitudes of his coreligionists. If he
shared such attitudes—buried deep and visible only to
the penetrating gaze of Janet Hatmaker—there is no
evidence that he ever expressed or acted on them.
There is, moreover, an independent ground on which
the district court must be affirmed. The “investigation”
to which section 2000e-3 refers does not include an inves-
tigation by the employer, as distinct from one by an
official body authorized to enforce Title VII. (A possible
exception, discussed below, is irrelevant to this case.)
The participation clause prohibits retaliation against an
employee who “has made a charge, testified, assisted, or
participated in any manner in an investigation, pro-
ceeding, or hearing under” Title VII. A purely internal
investigation does not involve a “charge,” or testimony,
No. 09-3002 11
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. EEOC v. Total
System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000);
Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999);
Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990);
contra, Hashimoto v. Dalton, 118 F.3d 671, 679-80 (9th
Cir. 1997). 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 theory, embraced by
some courts, that any fruits of the participant’s activity
are bound to feed into that investigation. Abbott v. Crown
Motor Co., 348 F.3d 537, 543 (6th Cir. 2003). As stated
in Clover v. Total System Services, Inc., 176 F.3d 1346, 1353
(11th Cir. 1999), “an employer receiving a form notice of
charge of discrimination knows that any evidence it
gathers after that point and submits to the EEOC will
be considered by the EEOC as part of the EEOC inves-
tigation. Though this is an indirect means of gathering
evidence to investigate a charge of discrimination, the
EEOC considers employer-submitted evidence on an
equal footing with any evidence it gathers from other
sources. Because the information the employer gathers
as part of its investigation in response to the notice of
charge of discrimination will be utilized by the EEOC, it
follows that an employee who participates in the em-
ployer’s process of gathering such information is partici-
pating, in some manner, in the EEOC’s investigation.”
That is not this case.
12 No. 09-3002
It’s not even clear that employees would benefit from
the broadening of the statute urged by Hatmaker. It
might discourage internal investigations in cases such
as this, in which a nonfrivolous charge was unlikely to
emerge from nebulous suspicions voiced by a busy-
body. (In retrospect the employer might well have been
spared this suit by taking Hatmaker’s advice not to in-
vestigate Stafford’s conduct.) Such forbearance would
burden the EEOC and the courts with employment dis-
putes that could have been resolved amicably by an
informal investigation by the employer. There would
also be formidable definitional difficulties. Would any
response, however perfunctory, to Hatmaker’s emails
have constituted an investigation? And what would
count as “participation” in an informal internal inves-
tigation? Were the other women on the chaplain’s staff
whose concerns Hatmaker relayed to Hester also partici-
pants in the investigation?
This is not a road we want to go down; more to the
point, Congress has not built such a road.
Hatmaker’s opposition claim, to which we now turn,
falls along with her participation claim. Even when
there is no investigation within the meaning of the
statute, an employer is, as we know, forbidden to re-
taliate against an employee for opposing unlawful con-
duct. But remember that opposition, to be protected
by the statute, must be based on a good-faith (that is,
honest) and reasonable belief that it is opposition to
a statutory violation. It would have been unreasonable
for Hatmaker to entertain such a belief, and in any event
No. 09-3002 13
she says that, as in Mattson v. Caterpillar, Inc., supra,
359 F.3d at 889, she did not.
A FFIRMED.
8-30-10