[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13073 February 21, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-02590-CV-CAM-1
DANIEL CRAWFORD,
Plaintiff-Appellant,
versus
CITY OF FAIRBURN, GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 21, 2007)
Before BIRCH and PRYOR, Circuit Judges, and NANGLE,* District Judge.
PRYOR, Circuit Judge:
*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
This appeal requires us to decide whether Daniel Crawford participated in
an investigation by the Equal Employment Opportunity Commission when he
conducted an in-house investigation of a fellow police officer’s complaint of
sexual harassment and reported his findings to his employer. The EEOC began its
investigation of an earlier complaint by the officer nearly a year before Crawford
opened his investigation of the officer’s later complaint, and the EEOC issued a
letter of determination regarding the earlier complaint before Crawford completed
his investigation of the later complaint. Based on that chronology, Crawford’s
employer, the City of Fairburn, Georgia, argues that Crawford did not participate
in the EEOC investigation and failed to establish a prima facie case of retaliation
in violation of the participation clause of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-3(a). We agree with the City and affirm the summary judgment
against Crawford’s complaint.
I. BACKGROUND
We describe the facts based on a review of the evidence in the light most
favorable to Crawford. In September 2002, Officer Louise Tallman of the
Fairburn Police Department filed an internal complaint of sexual harassment
against Sergeant James Smith. In December 2002, Tallman filed an EEOC charge
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against the City that alleged age and sex discrimination based on Smith’s alleged
harassment.
In March 2003, the City hired Crawford to serve in its Police Department as
a Major in the administration of Chief of Police Frederick Brown. Both men were
hired to address pervasive problems of management and morale. Crawford
oversaw the operations of the Department, including personnel matters and
internal affairs investigations.
In November 2003, Tallman filed another internal complaint against Smith.
Tallman alleged a second incident of sexual harassment that she believed occurred
in response to her still-unresolved 2002 complaint. Crawford began investigating
the complaint, and he added to his investigation allegations of insubordination,
failure to support the Department, and engaging in gossip and rumors.
On December 11, 2003, the EEOC issued a letter of determination regarding
Tallman’s charge filed in 2002. The EEOC found that it was more likely than not
that Tallman experienced sexual harassment. The EEOC did not address
Tallman’s second complaint, because Tallman had not filed a charge with the
agency regarding that matter.
Later in December 2003, Crawford met with Chief Brown, the City
Administrator, and City attorneys to discuss his investigation of Smith. The City
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Attorney asked the EEOC to delay conciliation for Tallman’s 2002 complaint until
Crawford completed his investigation. In another meeting later that month, the
City Administrator told Crawford that it was Crawford’s fault that the EEOC was
investigating the City, Crawford had “opened up a can of worms,” and Crawford’s
investigation was “going to get the City sued.”
On January 22, 2004, Crawford submitted the report of his investigation to
Chief Brown. The one-page report stated findings of internal violations such as
insubordination, failure to support the Department, and gossip; a finding of no
violation with respect to the complaint of a hostile work environment; a finding of
no violation with respect to Tallman’s 2002 complaint of verbal harassment; and a
finding that the 2003 incident, although intimidating, was not sexual harassment.
The City Administrator and City Clerk read the report and concluded that the
investigation had found no evidence of unlawful discrimination or harassment.
The City Attorney then informed the EEOC that the investigation was complete
and there had been no findings of Title VII violations against Tallman.
Crawford’s report and supporting documents were never submitted to the EEOC.
By the end of 2003, the City had become dissatisfied with Crawford’s
performance. Crawford had created a new traffic enforcement unit within the
Department, and its occasional patrolling of Interstate 85 proved unpopular with
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the City Administrator. Crawford was also involved with the termination,
reinstatement, and resignation of a disgruntled police dispatcher in December
2003. In February 2004, the Mayor and City Council took interest in the alleged
problems with scheduling, understaffing, and morale in the dispatch department.
The City Administrator then raised several of his concerns about the Police
Department, including staff discontent, unfair scheduling practices, poor
management, and poor communication with the City—but not including the sexual
harassment allegations—and recommended that Crawford be terminated, and the
Council agreed. The Administrator explained to Chief Brown that Crawford
would be terminated because of the problems involving the patrolling of Interstate
85, the dispatchers, overtime pay, and the accuracy of the investigation of
Tallman’s complaints. Chief Brown told Crawford that the termination was based
on the accuracy of the Tallman investigation, the Interstate 85 controversy, and the
problems with the dispatcher. Brown allowed Crawford to resign on February 27,
2004.
After his resignation, Crawford filed an EEOC charge, and the EEOC issued
a notice of right to sue. Crawford sued the City and complained that the City had
retaliated against him for conducting the Tallman investigation. The City moved
for summary judgment. The district court concluded that Crawford had engaged
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in protected activity but failed to establish that the legitimate, nondiscriminatory
reasons for Crawford’s termination proffered by the City were pretextual. The
district court granted summary judgment for the City.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo and view the evidence in
the light most favorable to the nonmoving party. Brooks v. County Comm’n, 446
F.3d 1160, 1161-62 (11th Cir. 2006). Summary judgment should be granted if
“the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
III. DISCUSSION
To resolve this appeal, we must first address whether Crawford established
a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824
(1973). To have established prima facie retaliation, Crawford must have
demonstrated that (1) he engaged in statutorily protected expression, (2) he
experienced an adverse employment action, and (3) there was a causal link
between the protected expression and the adverse action. Goldsmith v. City of
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Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). If Crawford failed to establish a
prima facie case, then we need not address the nondiscriminatory reasons
proffered by the City.
Crawford argued that he engaged in expression protected by the so-called
participation clause. Under Title VII, an employee is protected from
discrimination if “he has opposed any practice made an unlawful employment
practice by this subchapter” (the opposition clause) or “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);
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999). Under the
participation clause, “an investigation, proceeding, or hearing” encompasses, at a
minimum, EEOC investigations of unlawful discrimination. See 42 U.S.C.
§ 2000e-5(b); Clover, 176 F.3d at 1352-53.
We have considered twice the extent to which the participation clause
protects an employee who participates only in an in-house investigation of a
complaint of discrimination. In Clover, we concluded that participation in an
internal investigation was protected when the investigation was conducted after
and in response to a notice of charge of discrimination that the employer had
received from the EEOC. Id. at 1353. After Clover, we concluded that the
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participation clause does not protect participation in an internal investigation
conducted before the employer received from the EEOC a notice of charge of
discrimination. EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir.
2000). We reasoned that the notice of charge of discrimination apprises the
employer that any information it collects can be submitted to and considered by
the EEOC as a part of the EEOC investigation. Clover, 176 F.3d at 1353 (citing
29 C.F.R. § 1601.15(a)). Notice that an employee may be participating indirectly
in an EEOC investigation is essential to invoke the protections of the participation
clause.
Although the protection of participation “in any manner” is to be read
broadly, see id. (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1006
n.18 (5th Cir. 1969)), the limiting requirement of participation “in an
investigation, proceeding, or hearing under this subchapter” establishes that
Congress did not intend the protection of the participation clause to be infinite.
An excessively broad interpretation of the participation clause risks rendering the
protections of the opposition clause meaningless. Total Sys., 221 F.3d at 1174
n.3. The participation clause is tied to the pendency of an investigation,
proceeding, or hearing of the EEOC.
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An EEOC investigation, and an employee’s participation in it, ends when
the EEOC either dismisses the charge or issues a letter of determination that states
its final findings about the charge. See 29 C.F.R. §§ 1601.18, 1601.19(a),
1601.21(a). At that point, the employer has notice that the investigation has
concluded. The events that follow either a dismissal or a letter of determination
are separate from the investigation by the EEOC.
The text of Title VII and corresponding regulations also establish that
informal methods of remedying a charge are separate from the activities covered
by the participation clause. “If the Commission determines after such
investigation that there is reasonable cause to believe that the charge is true, the
Commission shall endeavor to eliminate any such alleged unlawful employment
practice by informal methods of conference, conciliation, and persuasion.” 42
U.S.C. § 2000e-5(b). The “informal method” of conciliation, although an
important part of the remedial process, see 29 C.F.R. § 1601.24(a), is distinct from
the “investigation” that results in the letter of determination. Conciliation is also
not a “proceeding”; the statute uses the word “proceedings” to refer to
enforcement actions in state courts and agencies and lawsuits in federal courts.
See 42 U.S.C. § 2000e-5(c), (d), (f). Because the participation clause protects only
participation “in an investigation, proceeding, or hearing under this subchapter,”
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an employee’s participation in only the conciliation process is not protected
activity under that clause. But see Aquino v. Sommer Maid Creamery, Inc., 657 F.
Supp. 208, 210 (E.D. Pa. 1987) (reaching contrary conclusion).
Crawford argues that the issuance of a notice of right to sue or the
commencement of litigation in federal court is a better end-point, citing EEOC v.
Hearst Corp., 103 F.3d 462, 469-70 (5th Cir. 1997), but we disagree. The notice
of right to sue often follows the letter of determination, but the investigation ends
when the letter of determination is issued. A notice of right to sue also is
automatically issued following a failure of conciliation, 29 C.F.R. § 1601.28(b),
but the informal method of conciliation is separate from the investigation by the
EEOC. The filing of a lawsuit by a complainant is even more remote from the
investigation by the EEOC.
Crawford’s investigation of Tallman’s complaint in 2003 was not part of the
EEOC investigation of Tallman’s earlier complaint. The EEOC investigation had
ended before Crawford reported the findings of his investigation, which, he
complains, led to his termination. The EEOC issued its letter of determination on
December 11, 2003. Crawford completed his investigation and submitted his
report to Chief Brown on January 22, 2004.
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The record, viewed in the light most favorable to Crawford, suggests that
the City became displeased with Crawford’s investigation after the investigation
by the EEOC had ended. The record does not reflect that Crawford or the City
submitted any new evidence to the EEOC in November or December 2003. At
most, the record establishes that City officials thought the results of Crawford’s
investigation might affect the conciliation process. Because Crawford failed to
create a genuine issue of material fact about whether he participated in protected
expression, his complaint of retaliation fails as a matter of law.
IV. CONCLUSION
The summary judgment for the City is
AFFIRMED.
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