Clover v. Total System Services

D. Lisa CLOVER, Plaintiff-Appellee,

v.

TOTAL SYSTEM SERVICES, INC., Defendant-Appellant.

No. 97-9229.

United States Court of Appeals,

Eleventh Circuit.

May 27, 1999.

Appeal from the United States District Court for the Middle District of Georgia. (No. 4:96-CV05-DF), Duross
Fitzpatrick, Judge.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.*

ON PETITION FOR REHEARING.

CARNES, Circuit Judge:

Our previous opinion in this case, which is published at 157 F.3d 824 (11th Cir.1998), has already

been vacated. See Clover v. Total Sys. Servs., Inc., 172 F.3d 795 (11th Cir.1999). In its place, on petition

for rehearing, we file this revised opinion.

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 participation in a TSYS

investigation conducted in response to TSYS' receipt of an EEOC notice of charge of discrimination. After

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.

We reverse.

I. BACKGROUND

*
This decision is rendered by a quorum, due to Judge Henderson's death on May 11, 1999. 28 U.S.C. §
46(d).
 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. Her immediate supervisor was Annette Jones. Jones' supervisor was Allen Pettis. The entire

Support Services Division was managed by Senior Vice President 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, 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 Clover that they were conducting an internal TSYS investigation concerning allegations of sexual

harassment made by Courtney Waters, a former Clover co-worker, against Pettis. Although the record does

not indicate that Clover knew it at the time, TSYS had commenced this investigation in response to receiving

the notice of Waters' charge of discrimination from the EEOC.1 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.

1
Prior to Waters' filing of an EEOC charge of discrimination and TSYS' receipt of notice of that charge,
TSYS had conducted another in-house investigation of Waters' allegations of sexual harassment. Clover did
not participate in that investigation.

2
 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 generally 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 knew that Clover had not promptly returned to work after the

meeting.

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 preparing a resume the night

before. 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 had told

her 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, 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 Miller was terminating her because she had

given "false information."

3
 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).

III. DISCUSSION

TSYS contends that the district court erred in denying it judgment as a matter of law on Clover's

retaliation claim. Its 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 under 42 U.S.C. § 2000e-3(a); (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 protected conduct 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. For the reasons discussed below, we conclude that

Clover engaged in statutorily protected conduct under § 2000e-3(a)'s participation clause, but that TSYS was

entitled to judgment as a matter of law because Clover failed to present sufficient evidence to establish the

requisite causal link between her protected conduct and her termination. In light of our decision that Clover

failed to establish causation, we need not decide whether Clover presented sufficient evidence of pretext.

A. WHETHER THE DISTRICT COURT ERRED IN CONCLUDING CLOVER PRESENTED
SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT CLOVER ENGAGED IN STATUTORILY
PROTECTED CONDUCT

4
 The statutory provision that Clover asserts prohibited TSYS from taking adverse employment action

against her, 42 U.S.C. § 2000e-3(a), 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. We believe that although Clover's

conduct was not protected by the opposition clause, it did fall within the scope of the participation clause.

1. Did Clover Engage in Protected Conduct 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]." 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 her answers and statements during the interview constitute opposition to an unlawful

employment practice. We assume for present purposes that answering questions in such an interview can

constitute "opposition."

5
 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

Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.1997). TSYS concedes that Clover had a good

faith belief that TSYS engaged in unlawful sexual harassment, but 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 alter the conditions of her employment and create an abusive working

environment." Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir.1997). Clover contends that her belief that

Pettis engaged in sexual harassment attributable to TSYS was objectively reasonable "based 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 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 same sex and 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., 523 U.S. 75, 118 S.Ct. 998, 1002-03, 140 L.Ed.2d 201 (1998).

The Supreme Court has said that the conduct in question must be severe or pervasive enough that a reasonable

6
person would find it hostile or abusive. That requirement is crucial "to ensur[ing] that courts and juries do

not mistake ordinary socializing in the workplace-such as ... intersexual flirtation-for discriminatory

'conditions of employment.' " 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 the conduct created a sexually hostile environment for

Waters was not objectively reasonable. Similarly, Clover could not have formed an objectively reasonable

belief that Pettis, or anyone else, had subjected Waters to quid pro quo sexual harassment because she failed

to relate any facts at all supporting such a claim.

Nor does the fact that Pettis engaged in conduct which led Waters to file an EEOC complaint and

for the company to initiate an in-house investigation alter our conclusion that Clover could not have held an

objectively reasonable belief she was opposing an unlawful employment practice. To begin with, the

company's in-house investigation, which began before Clover was interviewed, was not based on anything

Clover said but instead was a response to the EEOC complaint Waters had filed.

Moreover, for purposes of determining whether Clover satisfied the objective reasonableness

component of the test it is critical to distinguish between the conduct that Clover opposed, i.e., what she saw

or heard and then reported during the in-house interview, and the actual conduct 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 relevant conduct 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

7
environment was objectively unreasonable. Therefore, she did not engage in statutorily protected conduct

under the opposition clause.2

2. Did Clover Engage in Protected Conduct Under the Participation Clause?

As we mentioned earlier, in response to receiving the notice of Waters' charge of discrimination from

the EEOC, TSYS commenced an investigation into the merits of that charge. Clover participated in that

investigation by answering questions concerning her knowledge of the office interaction between Waters and

Pettis. Clover contends that she engaged in statutorily protected conduct under the participation clause

because her participation in TSYS' investigation 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 Clover did not engage in protected conduct because she

simply participated in an internal employer investigation, which is not "participat[ion] in any manner in 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." Thus, the issue we must resolve is whether an employee's participation in an investigation

conducted by her employer in response to an EEOC notice of charge of discrimination is "participat[ion] in

any manner in an investigation ... under this subchapter."

In addressing that issue, we begin by noting that although subchapter VI of chapter 21 of title 42 does

not define the term "investigation ... under this subchapter," it is clear that, at a minimum, the term

2
We also reject the EEOC's argument, raised for the first time in an amicus brief filed with Clover's
petition for rehearing, that TSYS' decision to conduct an in-house investigation in response to the notice of
charge of discrimination made it objectively reasonable for Clover to believe she was opposing unlawful
discrimination. As we pointed out above, 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, 139 F.3d at 1388 n. 2. While the fact that TSYS was conducting an investigation may have
contributed to Clover's subjective belief that she was opposing unlawful discrimination, TSYS' decision to
conduct such an inquiry has no bearing on the issue of whether the conduct Clover was "opposing" by
answering questions during TSYS' investigation was an unlawful employment practice as measured against
the existing substantive law.

8
encompasses EEOC investigations of alleged unlawful discrimination. See 42 U.S.C. § 2000e-5(b)

("Whenever a charge is filed by ... a person ... alleging that an employer ... has engaged in an unlawful

employment practice, the [EEOC] ... shall make an investigation thereof.").

In conducting its investigation, the EEOC can of course consider evidence gathered by its own

investigators, but the EEOC may also consider evidence from other sources, including employers. The

pertinent regulation provides that, "[a]s part of [the EEOC's] investigation, the [EEOC] will accept any

statement of position or evidence with respect to the allegations of the charge which ... the respondent

[employer] wishes to submit." 29 C.F.R. § 1601.15(a). In addition, the EEOC's standard form providing an

employer with notice of a charge of discrimination expressly informs the employer that any statement of

position or evidence the employer submits to the EEOC "will be made a part of the file and will be

considered" during the EEOC's investigation. EEOC Form No. 131 (Oct. 1994) ("Notice of Charge of

Discrimination").

Thus, 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

investigation. 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 employer's process of gathering such information is participating, in some manner,

in the EEOC's investigation.

To be sure, this form of participation is more indirect than, for example, an employee giving an

interview to the EEOC's own investigators. But Congress chose to protect employees who "participate[ ] in

any manner" in an EEOC investigation. 42 U.S.C. § 2000e-3(a) (emphasis added). The words "participate

in any manner" express Congress's intent to confer "exceptionally broad protection" upon employees covered

9
by Title VII. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006 n. 18 (5th Cir.1969). As we

pointed out in Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir.1997), "the adjective 'any' is not

ambiguous.... [It] has an expansive meaning, that is, one or some indiscriminately of whatever kind.... [A]ny

means all." (internal quotations and citations omitted). Because participation in an employer's investigation

conducted in response to a notice of charge of discrimination is a form of participation, indirect as it is, in an

EEOC investigation, such participation is sufficient to bring the employee within the protection of the

participation clause.3

Our previous opinion erred by its exclusive focus on whether the employee was participating in an

EEOC investigation or an internal investigation conducted by the employer. Here, we recognize that, at least

where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus

aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation,

the employee's participation is participation "in any manner" in the EEOC investigation. Accordingly, by

participating in her employer's investigation conducted in response to an EEOC notice of charge of

discrimination, Clover engaged in statutorily protected conduct under the participation clause.

B. 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 PROTECTED CONDUCT AND HER TERMINATION

In order to prevail on a retaliation claim, a plaintiff must establish the requisite causal connection

between her statutorily protected conduct and the adverse employment action. See Goldsmith v. City of

Atmore, 996 F.2d 1155, 1163 (11th Cir.1993). To establish that causal connection, a plaintiff need only show

"that the protected activity and the adverse action were not wholly unrelated." Simmons v. Camden County

Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985). "At a minimum, a plaintiff must generally establish that

the employer was actually aware of the protected expression at the time it took adverse employment action.

3
We have no occasion to decide in this case whether the participation clause extends to cover an
employee's participation in an investigation conducted by her employer before receiving a notice of charge
of discrimination from the EEOC.

10
The defendant's awareness of the protected statement, however, may be established by circumstantial

evidence." Goldsmith, 996 F.2d at 1163 (internal citations omitted).

In this case, TSYS contends Clover failed to present sufficient evidence for a jury to conclude that

Clover established the requisite causal connection between her protected conduct—i.e., her participation in

the investigation of Waters' sexual harassment claim against Pettis—and her termination. Specifically, TSYS

argues Miller was the only decision-maker responsible for Clover's termination and Clover failed to present

evidence that he was aware of Clover's protected conduct at the time he terminated her.

Clover offers two arguments in response. First, she says Miller was aware of Clover's protected

conduct and his awareness, combined with the temporal proximity of that protected conduct to her

termination, are sufficient to establish causation. Second, Clover says there was sufficient evidence for the

jury to find Hollingsworth was also a decision-maker in her termination and Hollingsworth's undisputed

awareness that Clover had engaged in protected conduct combined with the temporal proximity of her

protected conduct to her termination, are sufficient evidence to establish causation.

If Clover is correct that there was sufficient evidence to show that either (1) Miller was aware of her

protected conduct or (2) Hollingsworth was a decision-maker, then she created a jury issue on the causal link

requirement of her retaliation claim. See Goldsmith, 996 F.2d at 1163-64 (awareness by decision-maker of

protected conduct, in conjunction with temporal proximity of adverse employment action to protected

conduct, is sufficient to create a factual issue about the causal link requirement). However, for the reasons

set forth below, we conclude that there was insufficient evidence to support either theory of causation.

With regard to her first theory, Clover concedes that there is no direct evidence Miller was aware

of her participation in the investigation of Waters' sexual harassment claim against Pettis. Miller

unequivocally denied being aware of it. In the face of that denial, Clover offers the following circumstantial

evidence in her effort to establish that Miller was aware of her protected conduct:

(i) Miller was Pettis' friend and manager.

11
 (ii) Prior to his decision to terminate Clover, Miller knew Pettis had been investigated about
something, but did not know the details.

(iii) Miller spoke with Hollingsworth, at some point after Clover participated in the investigation on
March 23 but before Miller informed Clover she was being terminated March 24.

Clover argues that a jury could infer Miller knew that Pettis was being investigated for sexual

harassment from the fact he was Pettis' friend and manager and Miller's admission that he knew Pettis had

been investigated about something. Clover further argues that given the timing of Miller's conversation with

Hollingsworth—i.e., shortly after Clover met with Hollingsworth as part of the investigation and shortly

before Miller decided to terminate Clover—a reasonable jury could infer that Hollingsworth told Miller that

Clover had participated in the investigation of Pettis. Thus, Clover contends she presented sufficient evidence

to establish Miller's awareness of her protected conduct.

Clover cites our decision in Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir.1993), to support

her argument. In that case, Goldsmith, a black employee of the City of Atmore, sought to prove that she had

been transferred by the mayor in retaliation for engaging in conduct protected under Title VII. Goldsmith had

applied for a position as city clerk. After learning the position would be filled by a white female, Goldsmith

informed one of the city council members that she was going to file an EEOC complaint. The next morning

the council member met with the city's mayor. After the meeting, the mayor met with Goldsmith and told

her the clerk position she sought was filled and "there was nothing [Goldsmith] could do about it." Id. at

1157. Three weeks later the mayor told Goldsmith to clean out her desk, because she had been transferred

to the city library. See id.

A key issue at trial and on appeal was whether Goldsmith had presented sufficient evidence to

establish that the mayor was aware of her protected activity-i.e., her complaints to the council member and

threat to file an EEOC complaint. At trial, the mayor denied talking about Goldsmith during his meeting with

the councilman but was impeached by his deposition testimony stating that he "may" have discussed

Goldsmith's complaints during their meeting. See id. at 1163 & n. 12. We held that those facts were

12
sufficient for a jury to find that the mayor was aware of the employee's protected activity for purposes of

satisfying the causal link requirement of Goldsmith's retaliation claim. See id. According to Clover, the

evidence she presented was sufficient, under Goldsmith, for a reasonable jury to find that Miller was in fact

aware of her protected conduct. We disagree.

Although Clover's evidence raises the inference that Miller was aware, in some fashion, that TSYS

was investigating Pettis, that evidence is insufficient for any reasonable jury to find that Miller was aware

of Clover's participation in that investigation when he decided to terminate her. The evidence that Miller and

Hollingsworth spoke in the time period between Clover's participation in the investigation and Miller's

decision to terminate her shows, at most, that Hollingsworth could conceivably have told Miller about

Clover's participation. But because "could have told" is not the same as "did tell," it would be pure

speculation to infer that Hollingsworth actually told Miller about Clover's participation. The fact that the

vice-president who heads a corporate division and the vice-president in charge of Human Resources talk

regularly is not surprising, nor is it enough to support a reasonable inference that they discussed a specific

topic, much less an inference concerning what they said about it. A jury finding that Miller was aware of

Clover's protected conduct must be supported by reasonable inferences from the evidence, not mere

speculation.

Goldsmith is not to the contrary. In that case, plaintiff Goldsmith had evidence to impeach the

mayor's denial that he had discussed her protected conduct with the councilman. In contrast, Clover offered

no evidence to impeach Miller's unequivocal denial that he had any knowledge of Clover's participation in

the Pettis investigation or that he had ever discussed the subject with Hollingsworth. Nor did Clover even

ask Hollingsworth during the trial if she had told Miller about Clover's participation in the investigation.

Clover did not introduce any evidence that it would have been Hollingsworth's standard practice to inform

Miller his subordinates were involved in investigations conducted by Human Resources. Accordingly, we

13
conclude that Clover failed to present sufficient evidence to establish that Miller was aware of her protected

conduct.4

With regard to her second theory of causation, Clover relies primarily on two pieces of evidence to

support her position that Hollingsworth was a decision-maker. We find neither persuasive. First, she points

to Hollingsworth's testimony that it was the general practice of the Human Resources Department, of which

Hollingsworth was Assistant Vice-President, to review and evaluate termination decisions at TSYS. Clover

argues that Hollingsworth's role in reviewing and evaluating termination decisions was enough for a

reasonable jury to infer that she was a decision-maker in TSYS' termination of Clover. The problem with that

argument, however, is that Hollingsworth did not testify that she actually had the authority to overrule the

decision of Miller, a senior vice-president, to terminate Clover. Nor did Clover present any evidence showing

Hollingsworth had such authority. Furthermore, the undisputed testimony of both Hollingsworth and Miller

was that Hollingsworth made no recommendation at all to Miller concerning whether he should terminate her.

There is no evidence to contradict that unequivocal testimony.

Second, Clover points to her testimony that Miller told her that he would revoke his decision to

terminate her if she could work out her differences with Hollingsworth concerning the scheduled time of

Clover's March 23 meeting with the Human Resources. According to Clover, she did work out those

differences, and Hollingsworth promised to tell Miller. Although Clover argues that this made Hollingsworth

a decision-maker in her termination, we cannot agree. At most, the evidence shows Hollingsworth supplied

Miller with information (apparently favorable to Clover) which he may or may not have considered in making

his decision to terminate Clover. It does not show that Hollingsworth made the decision. To the contrary,

Clover's own testimony was that when Hollingsworth called her on March 27, 1995, Hollingsworth told her

that it was Miller who had decided to terminate her for falsifying information. Accordingly, we conclude that

4
Clover also asserts that Miller knew of Clover's participation in the investigation because Jones, Clover's
immediate supervisor, told him. That assertion, however, is mere speculation. Even assuming Jones knew
of Clover's participation, there is no evidence that Jones told Miller.

14
Clover failed to present sufficient evidence to establish that Hollingsworth was a decision-maker in her

termination.5

In sum, because Clover failed to present sufficient evidence either that (1) Miller was aware of her

protected conduct or (2) anyone other than Miller was a decision-maker, we conclude she did not present

sufficient evidence to permit a jury to reasonably find the requisite causal connection between her protected

activity and her termination. Because Clover was required to establish that causal connection in order to

prevail on her retaliation claim, the district court erred in denying TSYS' motion for judgment as a matter of

law.

IV. CONCLUSION

The judgment is REVERSED.

5
Clover does not contend that anybody besides Hollingsworth and Miller were possible decision-makers
in her termination.

15