dissenting:
It cannot be gain said, at least in my opinion, that the Title VII action for gender discrimination filed by Jane Koball in the district court in South Dakota had anything to do with the professional competence, character, or integrity of South Carolina U.S. Marshal Israel Brooks, or the U.S. Marshal Service in South Carolina. Glover was selected to be deposed in the Koball case solely because of her knowledge of some of the allegations and her past position on the EEO Advisory Committee. Thus, when Glover commenced to attacking Brooks for approximately two and a half hours, she was no longer participating in the investigation of Koball’s allegations of discrimination. Instead, she was commenting on matters clearly outside the purview of the Title VII proceeding, and as such, exceeding the scope of protection offered by the participation clause. 1 Accordingly, I respectfully dissent.
While I understand the majority’s concern that reading a reasonableness standard into the participation clause could create some chilling effect on Title VII proceedings, I am constrained to dissent because I do not believe that the participation clause was meant to shield testimony that has no relation to the matter in issue, nor sup-ports any fact to be proved. See Fed.R.Evid. 401. Although the participation clause has not been subject to the same reasonableness standard as the opposition clause, neither the wording nor legislative history of § 704(a) make it clear as to how far Congress meant to immunize hostile and disruptive employee activity when it declared it unlawful for an employer to take adverse employment action against employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-S(a); see Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230 (1st Cir.1976). However, “certain broad premises can be accepted with confidence.” Hochstadt, 545 F.2d at 230. Congress surely did not intend to give asylum to employees to gratuitously disparage and maliciously accuse their peers of professional misconduct having nothing whatsoever to do with the underlying charge of discrimination, simply because the comments were made during a deposition in a Title VII proceeding. “Title VII protection from retaliation for filing a complaint does not clothe the complainant with immunity for past and present inadequacies, unsatisfactory performance, and uncivil conduct in dealing with subordinates and with his peers.” Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir.1988), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988).
However, despite the lack of a reasonableness standard, there is case law that suggests the protective ambit of the participation clause is not absolute. In Jackson v. St. Joseph State Hosp., a supervisory employee was accused of sexually harassing a subordinate employee. 840 F.2d 1387. In response, the supervisory employee filed re*417verse discrimination charges with the Equal Employment Opportunity ■ Commission (EEOC). Upon learning that the EEOC was conducting its investigation, he then attempted to coerce the employee who brought the original harassment claim into dropping her claim and testifying that she lied. Consequently, the supervisor was fired for his conduct. On appeal, the Eight Circuit held that his termination was valid because it was for attempting to force another employee to lie, rather than in. retaliation for his reverse discrimination claims. Id. at 1390. The court agreed with the district court’s finding that the supervisor’s conduct of trying to pressure a witness to testify on his behalf in a Title VII proceeding was so “bizarre” as to remove him from the participation clause’s protection. Id. Thus, the fact that the supervisor was participating in an investigation under Title VII, albeit in a highly offensive and disruptive manner, did not bar his proper termination. See also Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir.1988) (“The mere fact that an employee is participating in an investigation or proceeding involving charges of some sort of discrimination, however, does not automatically trigger the protection afforded under section 704(a)”); Jones v. Flagship International, 793 F.2d 714, 727 (5th Cir.1986) (recognizing that § 704(a)’s protections may be denied to an employee whose activities adversely affect his effective performance of job duties).
Here, Stewart explained that one of the driving forces behind his termination of Glover was her “problem exercising the judgment which should be exercised by a captain at SLED.” (J.A. at 394-95.) Stewart felt that Glover’s “completely unnecessary attack of Marshal Brooks and others in his office” further exemplified her poor judgment and inability to handle the position. Id. His decision to terminate Glover, however, was not predicated on her participation in a Title VII proceeding, any testimony she gave with regard to the underlying allegations, or her taking part in the prosecution of such charges.
None of the remedial purposes of Title VII and its participation clause were contravened by Stewart’s decision. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir.1969). Thus, to recognize Glover’s claim would be to authorize retaliation actions under Title VII for any adverse employment action taken by an employer so long as the employee “testified, assisted, or participated in any manner” in another’s Title VII proceeding, despite the fact that the grounds for the adverse action had nothing to do with the substance of the underlying charges.2
As such, I do not believe that the prophylactic nature of the participation clause was meant to be stretched to such limits. See e.g. EEOC v. Kallir, Philips, Ross, Inc., 401 F.Supp. 66, 72 (S.D.N.Y.1975)(reeognizing that under some circumstances an employee “assisting”or “participating” in a Title VII proceeding “may be so excessive and so deliberately calculated to inflict needless economic hardship on the employer that the employee loses the protection of section 704(a)”). Nevertheless, I do recognize that the enforcement of Title VII rights is necessarily dependent on an employee’s complaints, and the freedom to present those grievances without the threat of retaliatory conduct by employers who may resent that they are charged with discrimination.3 See *418Pettway, 411 F.2d at 1007. However, there must be some sense of reason in any statutory scheme. Thus, the participation clause must be tempered, as the majority noted, by an employer’s right to discipline an employee for any legitimate, nondiscriminatory reason. See LaFond v. General Physics Services Corp., 50 F.3d 165, 174 (2d Cir.1995) (ruling that employer’s discharge of employee because he exhibited poor judgment was a legitimate, nondiscriminatory reason).
In my opinion, Glover’s insubordinate and unprofessional conduct that inappropriately manifested itself during a Title VII proceeding was not protected activity, nor should her conduct “be countenanced by the salutory purposes set forth in Title VII.” Jackson, 840 F.2d at 1391. The participation clause may be broad, but it is not boundless. Accordingly, I would affirm the judgment of the district court.
. During the deposition, following some preliminary questions, the government attorney asked Glover how long she served as chair person of the EEO Advisory Committee for the USMS. Glover responded:
I would have to check with headquarters and find out with that. There were records and documents on all of this that were retained and filed here at the Marshals Office. When Marshal [Israel] Brooks took over, its my understanding that he had all of the records from my administration destroyed, taken to Fort Jackson and burned in the incinerator.
(J.A. at 30) (emphasis added). It was at this point that the deposition,which was supposed to only address the allegations of the Title VII action filed by Koball, focused on the USMS administration under Brooks. For approximately the first one hundred pages of the 268 page deposition transcript, Glover accused Brooks, among other things, of destroying official records, mistreating employees, and being dishonest and a liar.
. Even within the plain meaning of the term "testify,” Glover was not providing "evidence as a witness for the purpose of establishing or proving some fact” in Koball's Title VII action during those some one hundred pages of the deposition transcript. Black’s Law Dictionary 1476(6th ed.1990).
. However, I am not even sure if Stewart’s conduct was retaliatory. Glover’s testimony, at best, could have only implicated the defendant U.S. Marshal Service. Since SLED does not stand accused in the Koball proceeding, it is difficult to conceive how it can be seen as retaliating against Glover. Thus, Glover does not run the same risks that a person assisting a co-worker, who brings a discrimination claim against their joint employer, may have. See e.g. Smith v. Columbus Metropolitan Housing Authority, 443 F.Supp. 61, 64 (S.D.Ohio 1977) ("To permit employers to accumulate exculpatory evidence during the pre-hearing phase by wielding the control they exercise over employees’ job security certainly violates the spirit of Title VII, which contemplates that allegations of discriminatory employment practices will be litigated before the appropriate agencies and courts, not before the supervisory staff of the respondent employer.”).