[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-9229 10/06/98
THOMAS K. KAHN
_________________ CLERK
D.C. Docket No. 4:96-CV-5-DF
D. LISA CLOVER,
Plaintiff-Appellee,
versus
TOTAL SYSTEM SERVICES,
INC.,
Defendant-Appellant.
_____________________________________
Appeal from the United States District Court
for the Middle District of Georgia
_____________________________________
(October 6, 1998)
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
CARNES, Circuit Judge:
Plaintiff D. Lisa Clover, a former employee of defendant Total
System Services, Inc. ("TSYS"), brought this lawsuit, claiming that TSYS
discharged her in retaliation for her cooperation in a TSYS internal
investigation of a sexual harassment complaint. A jury awarded Clover
$25,000 in compensatory damages and $160,000 in punitive damages.
TSYS moved for judgment as a matter of law, contending that the evidence
Clover adduced at trial was insufficient to support a claim of retaliatory
discharge. The district court denied that motion, and TSYS appeals the
denial. Because we conclude that Clover’s claim is legally insufficient to
constitute a retaliatory discharge under Title VII, we reverse.
I. BACKGROUND
Lisa Clover began working for TSYS, a credit and debit card data
processor, in 1988. At the time of her termination on March 24, 1995, she
was working as a microfiche clerk in the Support Services Division of
TSYS. Her immediate supervisor was Annette Jones. Jones' supervisor
1
was Allen Pettis. The entire Support Services Division was managed by
Walter Miller.
On March 22, 1995, Audrey Hollingsworth, Assistant Vice President
of TSYS' Human Resource Management Division ("Human Resources")
asked Jones to have Clover report to the Human Resources office on March
23, 1995 for a meeting. Apparently, there was some confusion about the
meeting time. While Clover believed that the meeting was set for 9:15
a.m., Hollingsworth thought that it was scheduled for 9:00 a.m.
Worried that the purpose of the meeting might be to inform her of
downsizing in her department, Clover spent the evening of March 22, 1995
preparing a resume. The next morning, March 23, 1995, Clover reported
to the Human Resources office a few minutes after 9:15. She concedes that
she arrived late. Clover told Hollingsworth that her lateness was the result
of running a school errand for her nephew.
At the Human Resources meeting, Hollingsworth and Marcus
Calhoun, TSYS' legal counsel, informed her that they were conducting an
internal TSYS investigation concerning allegations of sexual harassment
2
made by Courtney Waters, a former Clover co-worker, against Pettis.
Although the record does not indicate that Clover knew it at the time, the
in-house investigation was being conducted in response to TSYS having
been informed that Waters had filed an EEOC charge against it. For thirty
to forty minutes, Hollingsworth and Calhoun asked Clover questions
concerning her knowledge of the office interaction between Waters and
Pettis. Once the meeting ended, Hollingsworth told Clover she was free to
return to her own office, which was located across town.
Because Clover had left her wallet at home, she did not return directly
to her office. She arrived at her office around 10:45 a.m., at which time
Jones informed her the Human Resources meeting was confidential and she
should not tell anyone about it. Jones also told her that she needed to speak
with her about her most recent tardiness. Although Clover was a good
worker, she was often tardy, and had been threatened with probation in the
past because of her lateness. Jones was aware that Clover had arrived late
at the Human Resources office and also felt that Clover had not promptly
returned to work after the meeting.
3
Jones arranged a meeting with Pettis and Clover to discuss Clover's
tardiness. At Clover's request, Miller joined the meeting. At that meeting,
Clover admitted she had been late to the Human Resources meeting. At
trial there was some dispute about the explanation Clover gave for being
late. According to Miller, Clover claimed during their meeting that she was
late because she was up late the night before preparing a resume. However,
at the Human Resources meeting, Clover had told Hollingsworth that she
was late because she ran an errand for her nephew.
Thereafter, Jones recommended that Clover be terminated
immediately, but Miller disagreed. He said he would look into the
possibility of finding a job for Clover in another department. The next day,
Miller informed Clover he was terminating her employment because she
had given conflicting explanations for her tardiness. Miller said he had
learned from Hollingsworth that Clover told her that she was late to the
Human Resources meeting because she had an errand to run for her
nephew, which conflicted with the explanation Clover gave him, namely
that she had been up late preparing her resume. After some discussion,
4
Miller agreed to reconsider his decision if Clover could work out her
differences with Hollingsworth. Clover subsequently met with
Hollingsworth, but they failed to reach an agreement. Hollingsworth called
Clover on March 27, 1995 to tell her that her termination was final and that
she had been terminated for giving "false information."
Clover subsequently sued TSYS, alleging unlawful retaliation in
violation of 42 U.S.C. § 2000e-3(a). Specifically, she claimed that TSYS
terminated her in retaliation for her participation in the investigation of the
sexual harassment allegations against Pettis and for her opposition to that
alleged sexual harassment. A jury found in Clover's favor and awarded her
$25,000 in compensatory damages and $160,000 in punitive damages.
TSYS filed a motion for judgment as a matter of law on Clover's retaliation
claim and her claim for compensatory damages. The district court denied
that motion and TSYS appealed.
II. STANDARD OF REVIEW
We review de novo a denial of judgment as a matter of law. See, e.g.,
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998).
5
III. DISCUSSION
TSYS contends that the district court erred in denying it judgment as
a matter of law on Clover's retaliation claim. That contention potentially
raises three issues: (1) whether the district court erred in concluding Clover
presented sufficient evidence for the jury to find that Clover engaged in
statutorily protected conduct; (2) whether the district court erred in
concluding Clover presented sufficient evidence for the jury to find that
Clover established the requisite causal connection between her alleged
statutorily protected activity and her termination; and (3) whether the
district court erred in concluding Clover presented sufficient evidence for
the jury to find that TSYS’ proffered nondiscriminatory reason for Clover’s
termination was a pretext for discrimination. Because the evidence
presented at trial does not support the conclusion that Clover engaged in
statutorily protected conduct, we need reach only the first of these issues
to conclude that TSYS was entitled to judgment as a matter of law.
The statutory provision that Clover asserts prohibited TSYS from
taking adverse employment action against her, 42 U.S.C. § 2000e-3(a),
6
recognizes two forms of statutorily protected conduct. An employee is
protected from discrimination if (1) "he has opposed any practice made an
unlawful employment practice by this subchapter" (the opposition clause)
or (2) "he has made a charge, testified, assisted or participated in any
manner in an investigation, proceeding, or hearing under this subchapter"
(the participation clause). 42 U.S.C. § 2000e-(3)a. The case was submitted
to the jury under both clauses, and Clover contends that the facts presented
at trial support a verdict in her favor under either clause. Our consideration
of both clauses, however, leads us to conclude that neither supports
Clover’s claim and that TSYS was entitled to judgment as a matter of law.
A. WAS CLOVER’S CONDUCT PROTECTED UNDER THE
OPPOSITION CLAUSE?
Clover contends that the statements she made in her meeting with
Hollingsworth and Calhoun constituted opposition to an unlawful
employment practice, namely, sexual harassment. At the meeting, Clover
says, she "described acts that she believed to have been inappropriate or
unusual behavior for a member of senior management [i.e., Pettis.]"
7
Specifically, she testified that she told Hollingsworth and Calhoun that
Pettis engaged in the following conduct:
(i) Pettis made frequent visits without any "business purpose" to
Waters' work area.
(ii) Pettis would call Waters on her personal beeper during work
hours.
(iii) Pettis would sometimes knock on the department door where
Waters, Clover and other employees worked "to get Waters' attention
and to call Waters out into the hall to talk." However, if Clover or
another worker looked up, "Pettis would dart behind the door out of
sight.”
(iv) Pettis hung up "the phone on anybody who answered other than
Waters during the day.”
(v) Waters responded "to the attention of Pettis in a flirting kind of
style.”
Clover claims that this testimony constitutes opposition to an unlawful
employment practice.
The parties agree that an employee who seeks protection under the
opposition clause must have a "good faith, reasonable belief" that her
employer has engaged in unlawful discrimination. See Little v. United
Technologies, Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).
8
TSYS concedes that Clover had a good faith belief that TSYS engaged in
unlawful sexual harassment because she sincerely believed that, but TSYS
argues that her belief was not objectively reasonable. We agree.
The objective reasonableness of an employee’s belief that her
employer has engaged in an unlawful employment practice must be
measured against existing substantive law. See Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1388 n.2 (11th Cir. 1998) (failure to
charge the employee who opposes an employment practice with substantive
knowledge of the law “would eviscerate the objective component of our
reasonableness inquiry.").
To establish a hostile environment claim premised on sexual
harassment, a plaintiff must establish, among other things, that “the
harassment occurred because of her sex," and that “the harassment was
sufficiently severe or pervasive to affect a term, condition, or privilege of
her employment." Huddleston v. Roger Dean Chevrolet, 845 F.2d 900, 904
(11th Cir. 1993). Clover contends that her belief that Pettis engaged in
sexual harassment attributable to TSYS was objectively reasonable "based
9
on the nature of [Pettis'] conduct in connection with [Waters,] a seventeen
year old high school student combined with Pettis' position in the company
[as an assistant vice-president.]" However, the mere disparity between
Pettis’ and Waters’ ages and positions in the company does not make
Clover’s belief objectively reasonable. None of the conduct that Clover
described comes anywhere near constituting sexual harassment, regardless
of the relative positions of the employees involved. As the Supreme Court
recently stated:
[T]he statute does not reach genuine but innocuous differences
in the ways men and women routinely interact with members of
the opposite sex. The prohibition of harassment on the basis of
sex requires neither asexuality nor androgyny in the workplace;
it forbids only behavior so objectively offensive as to alter the
“conditions” of the victim’s employment.
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002-03
(1998). The Supreme Court has said that the conduct in question must be
severe or pervasive enough that a reasonable person would find it hostile
10
or abusive. That requirement is crucial to ensuring that courts and juries do
not mistake ordinary socializing in the workplace, including intersexual
flirtation, for discriminatory “conditions of employment.” See id. at 1003.
We do not mean to hold that the conduct opposed must actually be
sexual harassment, but it must be close enough to support an objectively
reasonable belief that it is. The conduct Clover described misses the mark
by a country mile. It follows that Clover’s belief that the conduct created
a sexually hostile environment for Waters was not objectively reasonable.
Nor did Clover relate any facts at all showing that Pettis, or anyone else,
had subjected Waters to quid pro quo sexual harassment.
Although dissenting only from our participation clause holding,
Judge Henderson’s separate opinion also expresses some concerns about
our opposition clause holding. In expressing those concerns, he states that
“the conduct in question” was “sufficiently disturbing to lead Ms. Waters
to file an EEOC complaint based on it and for the company to initiate an in-
house investigation involving outside legal counsel.” To begin with, the
company’s in-house investigation, which began before Clover was
11
interviewed, was not based on anything Clover said but instead was a
response to the EEOC complaint Ms. Waters had filed.
Moreover, the quoted statement of concern from the dissenting
opinion confuses the conduct Clover opposed, i.e., what she saw or heard
and then reported during the in-house interview, with the actual conduct
Ms. Waters experienced and reported in her complaint to the EEOC. There
is nothing in the record to suggest that the two are the same. For opposition
clause purposes, “the conduct in question” does not include conduct that
actually occurred – or that was averred in an EEOC complaint by the
alleged victim – but was unknown to the person claiming protection under
the clause. Instead, what counts is only the conduct that person opposed,
which cannot be more than what she was aware of. Additional conduct or
allegations unknown to the opposing person are not relevant to the
opposition clause inquiry. Clover’s belief that the conduct she described
created a sexually hostile environment was objectively unreasonable,
therefore, she did not engage in statutorily protected activity under the
opposition clause.
12
B. DID CLOVER ENGAGE IN PROTECTED ACTIVITY UNDER
THE PARTICIPATION CLAUSE?
Clover contends she engaged in statutorily protected activity under
the participation clause because her participation in TSYS' investigation of
Waters' charge of discrimination constitutes "participat[ion] in any manner
in an investigation . . . under this subchapter [i.e., subchapter VI of Chapter
21 of Title 42 (42 U.S.C. § 2000e)]." 42 U.S.C. § 2000e-3(a). TSYS, on the
other hand, contends that participating in an internal employer investigation
is not protected conduct because an internal inquiry is not an “investigation
. . . under this subchapter." It relies upon dicta from Silver v. KCA, Inc.
586 F.2d 138, 141 (9th Cir. 1978), that participation conduct is
"participation in the machinery set up by Title VII to enforce its
provisions." Whether the participation clause protects Clover from
retaliation for the statements she made in the TSYS Human Resources
meeting depends upon whether participation in an employer's internal
investigation of a discrimination charge is participation in an "investigation
. . . under this subchapter."
13
Subchapter VI of chapter 21 of title 42 fails to define precisely what
constitutes an "investigation . . . under this subchapter," which is the only
type of investigation that the participation clause covers. However,
examination of the context in which the word "investigation" appears in
that subchapter leads us to conclude that an "investigation . . . under this
subchapter" means an unlawful employment practice investigation
conducted by the Equal Employment Opportunity Commission (“EEOC”)
or its designated representative. It does not mean an employer’s in-house
investigation. The term "investigation" and its derivative "investigate"
appear in several other sections besides § 2000e-3(a). Every time either
term appears, without exception, the context indicates that the statute is
concerned only with EEOC investigations.
The terms “investigations” and “investigate” are found in code
sections that outline EEOC authority and responsibility in conducting its
investigations of unlawful employment practice charges. For example, §
2000e-6 indicates that the EEOC has the authority to conduct official
14
investigations of alleged unlawfully discriminatory employment practices.
In that section, the term “investigate” appears as follows:
[T]he Commission shall have authority to investigate and act on a
charge of a pattern or practice of discrimination, whether filed by or
on behalf of a person claiming to be aggrieved or by a member of the
Commission.
42 U.S.C. § 2000e-6(e) (emphasis added).
The EEOC, not the employer, bears the responsibility for conducting
investigations once formal charges have been filed with the Commission.
In § 2000e-5(b), “investigation” once again refers to an EEOC
investigation:
Whenever a charge is filed by . . . a person . . . alleging that an
employer . . . has engaged in an unlawful employment practice the
Commission . . . shall make an investigation thereof. . . . If the
Commission determines after such investigation that there is not
reasonable cause to believe that the charge is true, it shall dismiss the
charge. . . . If the Commission determines after such investigation that
15
there is reasonable cause to believe that the charge is true, the
Commission shall endeavor to eliminate any such alleged unlawful
employment practice.
42 U.S.C. § 2000e-5(b) (emphasis added). This language contemplates the
EEOC bearing responsibility for investigation of any charge of
discrimination, and thus indicates that an “investigation . . . under this
subchapter” will be an EEOC investigation.
Similarly, § 2000e-5(f)(2) suggests that any “investigation” must be
conducted by the EEOC, because that provision authorizes the EEOC to file
suit, should its investigation suggest that such action is necessary:
Whenever a charge is filed with the Commission and the Commission
concludes on the basis of a preliminary investigation that prompt
judicial action is necessary to carry out the purposes of this Act, the
Commission . . . may bring an action . . . .
42 U.S.C. § 2000e-5(f)(2) (emphasis added) . Because the EEOC uses the
results of its investigation to determine whether to file a lawsuit, the
16
statutory language authorizing the EEOC to file suit contemplates that an
EEOC investigation will precede such a lawsuit.
Likewise, § 2000e-8(a) gives the EEOC broad access to evidence in
conjunction with investigations, supporting the conclusion that it is
responsible for conducting those investigations:
In connection with any investigation of a charge filed under section
2000e-5 of this title, the Commission or its designated representative
shall at all reasonable times have access to, for the purposes of
examination, and the right to copy any evidence of any person being
investigated or proceeded against that relates to unlawful employment
practices covered by this subchapter and is relevant to the charge
under investigation.
42 U.S.C. § 2000e-8(a) (emphasis added). In each of these code sections,
the term "investigation" refers to an investigation of a charge of
discrimination by the EEOC or its representative.
The final mention of “investigations” occurs in § 2000e-9, which
states:
17
For the purpose of all hearings and investigations conducted by the
Commission or its duly appointed agents or agencies, section 161 of
Title 29 shall apply.
42 U.S.C. § 2000e-9 (emphasis added). This section’s use of the term
“investigations” is consistent with that of the other sections. None of them
use “investigation” in conjunction with inquiries conducted by employers,
private individuals, or other entities. The complete absence of any mention
of in-house or internal investigations indicates that only EEOC
investigations are investigations “under this subchapter.” In light of this
statutory framework, we conclude that Congress intended the term
"investigation . . . under this subchapter" in § 2000e-3(a) to include only
investigations of a charge of discrimination that the EEOC or its designated
representative conducts. Therefore, the participation clause of 42 U.S.C.
§ 2000e-3(a) protects against retaliation for cooperation with an
investigation of allegedly unlawful employment practices only when the
EEOC or its designated representative conducts the investigation.
18
It is not our role to second-guess congressional judgment. As we said
last year: “Courts have no authority to alter statutory language. We cannot
add to the terms of Title VII’s anti-retaliation provision what Congress left
out . . . .” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir.
1997).1 We do note that the policy judgment Congress made not to extend
the participation clause’s protections to an employer’s internal investigation
is not without some arguable basis. Congress could have believed that
including such investigations under the participation clause might have a
chilling effect on an employer’s willingness to conduct internal
investigations, and that the risk that employers would take adverse
employment action against employees who cooperate in internal
investigations that the employers themselves initiate was minimal. From
those two reasonable premises Congress may have concluded that avoiding
1
Merritt involved participation in a Title VII lawsuit, which undisputedly is a
“proceeding . . . under this subchapter,” because the subchapter authorizes such
lawsuits. The issue was whether involuntary testimony by one of the alleged harassers
in a deposition taken by the plaintiff was participation “in any manner.” We held it
was, interpreting that statutory language to mean what it says: “in any manner.” See
Merritt at 1186. In this case, we follow the same principle of statutory interpretation
in deciding that “investigation . . . under this subchapter” means just that.
19
the deterrent effect on internal investigations outweighed the risk of
retaliation for participation in such investigations.
In his thoughtful dissenting opinion, Judge Henderson suggests
several reasons why he believes a better policy result would be for the
opposition clause to cover participation in internal investigations. He may
be correct about what would be the best policy. That issue is open to
debate. The authority of Congress to decide such policy issues, however,
is not open to debate. Nor is our function debatable. We sit not to second
guess, improve, or correct the policy decisions of Congress, but to
ascertain and carry out those decisions.
Whatever the reasoning behind the policy decision, Congress was
entitled to and did make it, as reflected in the language of § 2000e-3(a).
See Merritt, 120 F.3d at 1188 (acknowledging that “[w]e may not have
made the same policy decision had the matter been ours to decide,” but
concluding that it was not absurd or ridiculous for Congress to have
decided the way it did). It would have been a simple matter for Congress
to say that participation in any investigation related to an unlawful
20
employment practice was protected, but Congress instead chose to protect
only participation in investigations carried out under the subchapter dealing
with EEOC investigations. See id. at 1187 (“Congress could have crafted
the statutory provision that way. But it did not.”).
We note that our interpretation of the phrase “investigation . . . under
this subchapter” is supported by an EEOC regulation. Because § 2000e-
5(a) authorizes the EEOC to promulgate regulations preventing persons
from engaging in unlawful employment practices, a reasonable
interpretation of statutory language contained in such a regulation is due
deference unless contrary to the expressed intent of Congress. See
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S. Ct. 2778, 2782
(1984) (holding that when Congress has not spoken to precise question at
issue, agency charged with administering statute is entitled to deference in
interpreting that statute). The EEOC’s regulations interpret “investigation”
to mean an investigation that it conducts by itself or through its
representatives. The pertinent regulation states that:
21
The investigation of a charge of discrimination shall be made
by the Commission, its investigators, or any other
representative designated by the Commission.
29 C.F.R. § 1601.15.
Clover participated in an internal TSYS investigation, not an EEOC
investigation. That internal investigation began after TSYS was notified
by the EEOC Waters had filed a complaint. However, the EEOC did not
designate TSYS, against whom the complaint was filed, as its investigative
representative. Nothing in the statute or in the EEOC’s regulations permits
us to treat an employer against whom a charge is filed as an official
investigator for the EEOC. The statute and regulations do not require,
authorize, or even mention an investigation by the employer. It follows
that an employer’s internal investigation is not “an investigation . . . under
this subchapter” as that term is used in § 2000e-3(a), and therefore
participation in internal investigations is not an activity protected by the
participation clause.
IV. CONCLUSION
22
Because Clover’s participation in the TSYS investigation was not
statutorily protected activity under either the opposition clause or the
participation clause of 42 U.S.C. § 2000e-3(a), TSYS was entitled to
judgment as a matter of law on Clover’s retaliation claim. The judgment
and award of damages in Clover’s favor are REVERSED.
HENDERSON, Senior Circuit Judge, dissenting:
The panel majority holds that the jury’s verdict in favor of Clover can not be
sustained legally under either the opposition clause or the participation clause of Title
VII’s anti-retaliation provision codified at 42 U.S.C. § 2000e-3(a). I have some
concerns about the majority’s holding that Clover’s claim fails under the opposition
clause because her belief that TSYS had engaged in sexual harassment was not
23
objectively reasonable. It seems entirely possible to me that many reasonable young
women would have found the conduct in question to be offensive and objectionable.
It was apparently sufficiently disturbing to lead Ms. Waters2 to file an EEOC
complaint based on it and for the company to initiate an in-house investigation
involving outside legal counsel.3 I write separately, however, because I find the
majority’s construction of the participation clause too narrow.
The statute makes it an unlawful employment practice for an employer to
discriminate against any employee “because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a).4 The majority notes that the types of
participation protected by this provision are not spelled out in the statute but
2
The complainant’s name is spelled both “Waters” and “Walters” in the record. It is not
clear which is the correct spelling.
3
Ms. Waters had apparently filed some type of internal complaint against Pettis with the
company at some point during 1994, and TSYS had conducted an earlier investigation at that
time. The plaintiff was not interviewed in connection with that review.
4
The statute also protects applicants for employment, individuals in job-training
programs, and members - and applicants for membership - in labor organizations. See 42 U.S.C.
§ 2000e-3(a).
24
nevertheless concludes that an employee is protected only when participating in an
investigation conducted by the EEOC or its designated representative. I do not
believe that result is required by the language of the statute, prior decisions of this
court, or persuasive authority from other courts.
In my view, it is equally reasonable to read the statutory language to mean any
investigation into an employment practice rendered illegal by
Title VII. Thus, an employee would be protected by the participation clause once an
investigation was begun into conduct which allegedly violated the statute even if a
formal EEOC complaint was not in existence at that time. In virtually every instance
of an allegation of sexual harassment or other discriminatory conduct, the employer
is going to conduct an internal investigation into the matter. Indeed, given the limited
resources of the EEOC, the employer’s examination of the allegations may be the only
detailed one that is carried out. To hold, as does the majority, that an employee is
protected if she makes a statement to an investigator for the government agency but
is not protected if she makes the identical statement, concerning the same allegation
25
of discrimination, to her employer’s representative unduly weakens the assurances
afforded by the anti-retaliation provision. As I understand the majority’s position, if
an EEOC representative had joined Hollingsworth and Calhoun at the March 23, 1995
meeting, Clover would have a valid participation clause claim. I do not believe that
this is what Congress intended in enacting this provision. As the former Fifth Circuit
Court of Appeals observed in an early Title VII case, the EEOC is an agency with
limited powers: it can investigate and attempt conciliation but has no power to
compel compliance with its findings regarding discrimination. The burden of
enforcing Title VII rights rests, for the most part, with private individuals. Pettway
v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969). Therefore, the
success or failure of a charge of retaliation does not turn on the presence or absence
of a representative of the EEOC at any given stage of the proceeding.
Even if that position is rejected, however, the jury’s verdict in favor of Clover
can be sustained. As the majority notes, by the time of Clover’s interview, Waters
had filed a charge with the EEOC relating to Pettis’ behavior, and it was that charge
26
which prompted the March 23, 1995 interview.5 As a result of Waters’ action, an
investigation under “this subchapter” had clearly commenced by the time of the
Clover interview. That Clover may have been unaware that Waters had filed an
EEOC complaint prior to the interview is surely immaterial. That will be the case
with most potential employee witnesses to alleged acts of alleged sexual harassment
or other discriminatory conduct.
One difficulty with the majority’s opinion is that it would discourage employees
with grievances concerning discriminatory treatment from pursuing informal
resolution of those matters with management before filing a formal EEOC charge and
would certainly discourage other employees from participating in such informal
investigations. At least with respect to opposition clause claims, courts have held that
the statute protects “informal protests, such as voicing complaints to employers or
using an employer’s grievance procedures.” See, e.g., Armstrong v. Index Journal
Co., 647 F.2d 441, 448 (4th Cir. 1981). And the participation clause has generally
5
For reasons that are not entirely clear from the record, Waters’ employment with the
company ended at some point late in 1994. Pettis was promoted after Clover filed the present
action.
27
been found to offer far broader protection than the opposition clause, which, of course,
has a more limited purpose. See Sias v. City Demonstration Agency, 588 F.2d 692,
695 (9th Cir. 1978). The danger of the majority’s approach was
demonstrated in this case as Clover was initially reluctant to answer questions about
the matter and did so only after being assured that she would suffer no reprisals for
her cooperation with the in-house investigation. Yet, the jury that heard the evidence
in this case concluded that Clover had in fact been retaliated against for her
expressions of concern about Pettis’ conduct toward Waters.6 I would imagine that
TSYS, like any other employer in a similar situation, could have compelled Clover to
participate in its internal investigation. I think it would be unfair to deny to her and
other similarly situated employees the freedom from retaliation for such cooperation.
6
During her employment with TSYS, Clover had a recurring problem with tardiness and
was counseled about it on a number of occasions. The plaintiff presented this documentary
evidence very early in her case, apparently to lessen its impact on the jury. Therefore, there was
evidence which would have supported a jury finding that the company had a legitimate, non-
retaliatory reason for terminating Clover. The jury, however, heard all the evidence and
concluded otherwise. I do not address this issue further because the majority does not reverse
the district court’s judgment in favor of the plaintiff on evidentiary grounds.
28
The majority can point to no case which squarely holds that an employee in
Clover’s situation is not protected against retaliation. There is certainly no decision
from this circuit which so holds. The case which arguably provides the strongest
support for the majority’s conclusion, Vasconcelos v. Meese, 907 F.2d 111 (9th Cir.
1990), is clearly distinguishable. In that case, the plaintiff was terminated for lying
during an internal investigation of the alleged sexual harassment. There is no
allegation in this case that Clover lied or misrepresented the facts during her interview
concerning Pettis’ treatment of Waters.7
In a case cited by the majority, this court observed last year that the anti-
retaliation provision is “expansively written” and protects against retaliation all types
of participation in investigations of alleged employment discrimination. Merritt v.
Dillard Paper Co., 120 F.3d at 1186. In Merritt, the court held that an employee who
had allegedly sexually harassed a female co-worker and who subsequently had given
compelled deposition testimony in a lawsuit brought against the company by the
7
TSYS does contend, however, that Clover gave conflicting reasons for her tardiness in
arriving at the March 23, 1995 meeting with Hollingsworth and Calhoun.
29
victim, which was adverse to the company, could avail himself of the protections of
the anti-retaliation provision. According to the court, “[u]nder the plain language of
the provision, those who testify or otherwise participate in a Title VII proceeding are
protected from retaliation for having done so, even if it turns out they were not of any
assistance to the Title VII claimant.” Id. Today’s decision marks a retreat from a
reasonable reading of the statute to the extent that it renders enforcement of the
retaliation provision virtually ineffective. For this reason, I respectfully dissent.
30
Clover v. Total System Services
Combined Opinion