Clover v. Total System Services

[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.

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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

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 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.

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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.

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