Andrea Gogel v. KIA Motors Manufacturing of Georgia, Inc.

Case: 16-16850 Date Filed: 07/29/2020 Page: 1 of 150

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-16850

________________________

D.C. Docket No. 3:14-cv-00153-TCB

ANDREA GOGEL,

Plaintiff-Appellant,

versus

KIA MOTORS MANUFACTURING OF

GEORGIA, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(July 29, 2020)

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Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN,

ROSENBAUM, JILL PRYOR, BRANCH, GRANT, TJOFLAT,∗ ED CARNES,∗∗

MARCUS,∗∗∗ and JULIE CARNES,∗∗∗∗ Circuit Judges.∗∗∗∗∗

BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM

PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE

CARNES, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

JORDAN, Circuit Judge, filed an opinion concurring in the judgment.

WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.

MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and

JILL PRYOR, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and

JILL PRYOR, Circuit Judges, joined.

∗ We heard this case en banc while Judge Tjoflat was an active judge, and he elected to

continue to participate in the decision of this case after becoming a senior circuit judge. See

Eleventh Circuit Rule 35-9 (“Senior circuit judges of the Eleventh Circuit . . . may continue to

participate in the decision of a case that was heard or reheard by the court en banc at a time when

such judge was in regular active service.”).

∗∗ We heard this case en banc while Judge Ed Carnes was an active judge, and he elected

to continue to participate in the decision of this case after becoming a senior circuit judge. See

Eleventh Circuit Rule 35-9 (“Senior circuit judges of the Eleventh Circuit . . . may continue to

participate in the decision of a case that was heard or reheard by the court en banc at a time when

such judge was in regular active service.”).

∗∗∗ We heard this case en banc while Judge Marcus was an active judge, and he elected to

continue to participate in the decision of this case after becoming a senior circuit judge. See

Eleventh Circuit Rule 35-9.

∗∗∗∗ Senior Circuit Judge Julie Carnes elected to participate in this decision pursuant to

28 U.S.C. § 46(c).

∗∗∗∗∗ Judge Newsom is recused. Judge Robert J. Luck joined the Court on November 19,

2019 and did not participate in this decision. Similarly, Judge Barbara Lagoa joined the Court on

December 6, 2019 and did not participate in this decision. Likewise, Judge Andrew Brasher

joined the Court on June 30, 2020 and did not participate in this decision.

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BRANCH, Circuit Judge:

After being fired by Kia Motors Manufacturing Georgia, Inc. (“Kia”),

Andrea Gogel sued her former employer, asserting claims for gender and national-

origin discrimination and retaliation under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and 42 U.S.C. § 1981. The district

court granted summary judgment in favor of Kia on all claims, and Gogel appealed

to our court. A panel of this Court affirmed as to Gogel’s discrimination claims,1

but the majority opinion reversed the district court’s grant of summary judgment as

to Gogel’s claim that Kia fired her in retaliation for her exercise of protected

conduct. Gogel v. Kia Motors Mfg. of Ga., Inc., 904 F.3d 1226 (11th Cir. 2018),

vacated, 926 F.3d 1290 (11th Cir. 2019) (granting rehearing en banc). One

member of the panel dissented as to the reversal of summary judgment in favor of

Kia on Gogel’s retaliation claim. See Gogel, 904 F.3d at 1239–48.

We granted rehearing en banc to consider whether the district court erred in

granting summary judgment on Gogel’s claim that she was fired in retaliation for

1

Gogel alleged that she had been fired both because of her sex and national origin and in

retaliation for protected activity. Concluding that there was no evidence that a discriminatory

motive based on Gogel’s sex or national origin led to her being fired, the panel opinion held that

summary judgment was warranted as to any termination claim based on those grounds. Gogel v.

Kia Motors Mfg. of Ga., Inc., 904 F.3d 1226, 1239 (11th Cir. 2018), vacated, 926 F.3d 1290

(11th Cir. 2019) (granting rehearing en banc). Gogel also alleged that Kia had discriminated

against her based on her sex and national origin when it failed to characterize her Team Relations

manager position as being Head of Department. The panel opinion concluded that Gogel

abandoned this claim on appeal. Id. at 1233 n.3. We agree with and adopt both of these rulings

by the panel.

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engaging in protected conduct. After careful review of the record and having the

benefit of oral argument, we affirm the grant of summary judgment as to Gogel’s

retaliation claim under Title VII and § 1981.

I. BACKGROUND 2

Formed in 2006 and located in the rural community of West Point, Georgia,3

Kia is a subsidiary of the Korean Kia Motors Corporation, whose president and

CEO at the time was Byung Mo Ahn. Each department within the company had a

Korean coordinator who worked in tandem with the American managers at Kia.

The Korean coordinators were hired by the parent Kia company in South Korea

and served three- to four-year assignments at the local Kia before being rotated

out. These Korean coordinators were heavily involved in decision-making at Kia.4

As for the American management, Randy Jackson, a white American male,

was initially hired as the director of Human Resources and thereafter promoted to

Senior Vice President of Human Resources and Administration. In effect, Jackson

2

Because we hear this appeal following a grant of summary judgment in favor of Kia, we

take the facts of this case in the light most favorable to Gogel. Essex Ins. Co. v. Barrett Moving

& Storage, Inc., 885 F.3d 1292, 1299 (11th Cir. 2018).

3

West Point, Georgia is located 81 miles from Atlanta, 81 miles from Montgomery,

Alabama, and 135 miles from Birmingham, Alabama.

4

As will be discussed further in this opinion, because of the Korean coordinators’

significant involvement in the decision-making at Kia, tensions developed as some American

managers came to resent what they perceived as a lack of respect for and deference to the

American managers’ input.

4

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was the chief administrative officer for Kia. Human Resources was divided into

two units: a unit that handled the administrative end of employee relations, such as

hiring, background checks, and payroll (hereinafter “HR”), and the Team Relations

unit, which handled virtually every other aspect of employee relations once an

employee was on board, including the receipt of allegations by employees of

harassment and discrimination, as well as the investigation of those allegations.

Robert Tyler, a white American male, was selected as the manager of the HR

department. Gogel, a white American female, was hired in 2008 as Kia’s Team

Relations Department Manager, with three assistant managers who reported

directly to her. As the manager of Team Relations, she oversaw all of these

investigations and reported back to Jackson with the results and her

recommendations.

The events giving rise to the specific issue before us began during the tenure

of an employee named Diana Ledbetter, a white American female hired in 2008 as

a staff member of Kia’s General Affairs department. The General Affairs

department was responsible for a variety of miscellaneous operational duties,

including overseeing the cafeteria, office furniture, office supplies and machinery,

and janitorial services. The General Affairs department was also responsible for

special events, including “celebration functions,” “dinners or any kind of

conferences or any kind of meetings,” catering, flowers, and the like. Ledbetter

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had been hired as a General Affairs specialist and told that she would be

responsible for “Protocol and Events.” These events often involved visits by the

Korean president of the company, Mr. Ahn, and other Korean officials. As to

protocol, the events were designed to be consistent with the protocol followed for

such dignitaries in Korea. And it was this protocol to which Ledbetter objected.

Specifically, she was asked to pour wine for the Korean executives at these events

and, upon their arrival at the plant, to hold flowers and say, “Welcome, Chairman.”

As a result, some unidentified co-workers teased her as being a “geisha.”

Ledbetter disliked having to perform these duties. In addition, Ledbetter

told Gogel that she believed that Ledbetter’s supervisor, K.M., 5 a black American

female, was involved in a romantic relationship with President Ahn. This alleged

relationship was of concern to Ledbetter because she believed this relationship

enabled K.M. “to improperly use her position of manager to control subordinate

employees” like Ledbetter. Ledbetter spoke to Gogel and others about this issue

and requested that she be transferred away from K.M.’s supervision. Jackson

agreed to transfer Ledbetter to Team Relations but told her that she had a better

chance of a promotion if she stayed in General Affairs. Her dislike of working

under K.M. notwithstanding, Ledbetter decided she would rather stay in General

5

For purposes of this opinion, we refer to Ledbetter’s supervisor by her initials “K.M.”

6

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Affairs with the prospect of a promotion. In September 2010 she was designated

the “acting” assistant manager of General Affairs. Nonetheless, Ledbetter

continued to ask Gogel to investigate what she believed to be an inappropriate

relationship between K.M. and Ahn.

In fact, Gogel sought permission from Jackson in late 2008 to investigate the

relationship between President Ahn and K.M. because of the possibility that K.M.

might be “utilizing th[e] relationship to the detriment of others” and that K.M.

might not have fully consented to the relationship. Gogel was concerned about

“the risk that [the relationship] could create for the company” and she wanted to

investigate the issue to make sure that the company was not “at risk” from “people

being treated in a way differently than they should be treated, from a legal and an

ethical perspective.” Accordingly, she asked Jackson if she could conduct an

investigation as to whether President Ahn and K.M. were having an affair.

Jackson declined to authorize such an investigation.

Shortly thereafter, Kevin Kim, the Korean Coordinator for HR and

Jackson’s counterpart, asked Gogel to investigate K.M. secretly regarding her

treatment of other team members and whether there was any “falsification of time”

on her part, but he did not direct an investigation regarding President Ahn. Kim

directed Gogel not to reveal this investigation to Jackson. Within a few weeks,

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however, Kim asked Gogel to stop the investigation and to destroy any information

she had gathered related to the investigation.

In March 2009, Jackson designated Tyler as the Head of Department

(“HOD”) over both Team Relations and HR and indicated that this new title was

based on Tyler’s years of experience and longevity with Kia. Given the significant

responsibilities of her position, Gogel objected that she was not likewise

designated as an HOD over Team Relations.6

After Gogel was not given a head of department designation in 2009, she

met with Jackson and Tyler and informed them that she believed she did not

receive the HOD title because of her gender and that there was a gender issue

within the company. Indeed, as her complaint recounts, Gogel believed that the

Korean management held antiquated views about the role of women in the

workplace, generally, and that as to Gogel, specifically, she was not sufficiently

listened to or respected by the Korean managers.

In August 2010, Jackson sent Gogel an email asking for her thoughts on how

the Team Relations department could be improved. Gogel sent two lengthy emails

in response that Jackson summarized as stating that “her department was being

hampered by micro-management from people who did not understand the work

6

This grievance constituted a substantial part of the basis for her claim of national origin

and sex discrimination, which claim she has now abandoned on appeal.

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being performed, did not respect her successes or the passion she brought to her

job, and did not give her the freedom that she regarded ‘as a basic aspect of being

an American and working in an American environment.’” Having received this

and other input indicating that American managers felt they were not being given

appropriate decision-making authority, Jackson asked Tyler to gather information

as to the concerns of American management, including some specific factual

examples.

Conferring with Gogel and some other members of American management,

Tyler drafted and presented a lengthy Report of Concerns, setting out the American

managers’ unhappiness with the Korean managers and the lack of deference and

respect they believed these managers showed their American counterparts. This

report was delivered to Jackson in late September 2010. On October 12, 2010,

Jackson attempted to speak to Gogel about the concerns expressed in the report,

but she indicated her discomfort speaking to Jackson and instead indicated that she

would prefer to talk to an independent or outside investigator. A couple of days

later, however, Gogel met with Jackson. The meeting ended when Jackson had

another appointment. Thereafter, Gogel sent an email to Jackson, Tyler, Webb,

and one of the Korean coordinators, explaining that Tyler had informed her that the

matter was closed because “it was difficult to address issues that [Gogel] would not

give information about.” Gogel expressed her disagreement with the

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characterization that she was uncooperative and noted that Jackson was the one

who ended the interview. Further, she asserted that she told Jackson she would

answer any questions he had, but he did not follow up with her. Gogel requested

an independent investigation into her concerns.

Thereafter, on November 10, 2010, Gogel filed her first charge with the

Equal Employment Opportunity Commission (“EEOC”), alleging that she was not

awarded an HOD designation due to gender and national origin discrimination.

Kia received this charge on November 22, 2010. On November 19, 2010, Tyler

also filed a charge with the EEOC, alleging national origin discrimination and

retaliation.

Given the sensitivity of Gogel’s and Tyler’s positions and their special

access to the plant’s entire workforce, Jackson and Kia general counsel Charles

Webb requested on Friday, December 3, 2010, that Gogel and Tyler each sign an

agreement to prevent any misuse of their positions in their continuing interactions

with employees.7 As relevant to the present appeal, this agreement provided that

7

Tyler signed the agreement on that same day, December 3. Tyler nonetheless violated

this agreement on two separate occasions, when he downloaded dozens of documents. See Tyler

v. Kia Motors Mfg. Ga., Inc., 702 F. App’x 945, 948 (11th Cir. 2017); Tyler v. Kia Motors Mfg.

Ga., Inc., 2016 WL 9663168, at *8–9 (N.D. Ga. Aug. 1, 2016). Learning of this conduct, Kia

initiated an investigation into Tyler’s computer activities and discovered that Tyler had

forwarded hundreds of emails from Kia networks to his personal email accounts. Tyler, 2016

WL 9663168, at *9. Kia suspended Tyler and ultimately terminated him on January 6, 2011,

stating in the termination letter that Kia “ha[d] lost confidence in [his] trustworthiness and

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Gogel would neither “use [her] position to solicit or influence Team Members to

make claims against [Kia]” nor would she “make any written or verbal statements

to Team Members that malign the company.” 8

Expressing discomfort about signing the agreement until her lawyer could

first review it, Gogel initially refused to sign the agreement and was placed on

administrative leave. On Monday, December 6, 2010, which was the next business

day, Gogel signed the agreement.9 She was allowed to return to work that same

day. On December 16, 2010, Gogel requested four additional days off (from

therefore, [Kia] ha[d] no alternative but to discharge [him] immediately.” Id. (internal quotation

marks omitted).

Tyler subsequently sued, alleging retaliatory termination in violation of Title VII and

§ 1981. The district court granted summary judgment to Kia. On appeal, we affirmed the grant

of summary judgment, concluding that even though Tyler’s filing of an EEOC charge constituted

protected activity, his violation of the agreement constituted a neutral, non-retaliatory reason for

terminating him, and that Tyler had failed to show that this ground was pretextual. Tyler, 702 F.

App’x at 949–52.

8

The agreement provided:

By signing below, I agree as follows:

A. I will not discuss my EEOC charge or similar claims against [Kia] with Team

Members and will not use my position to solicit or influence Team Members

to make claims against [Kia];

B. I will not put any Team Members, including my reports, in any conflict of

interest by seeking their assistance in any fact finding or any information

gathering related to my claim against [Kia];

C. I will not make any written or verbal statements to Team Members that

malign the company; and

D. I will not seek access to any files or documents that relate in any way to the

merits of my claim or similar claims against [Kia].

9

We note that there is nothing in the record that indicates that Gogel contested any of the

agreement’s terms.

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January 4, 2011 through January 7, 2011), which Jackson approved. Then, on

December 22, 2010, Kia gave Gogel a discretionary $12,000 bonus and Jackson,

who handed her the check, told her she was doing a good job and shook her hand.

Things changed dramatically on December 23, however. Unbeknownst to

Jackson, on December 10, 2010, Diane Ledbetter had filed her own EEOC charge

asserting a claim of discrimination based on her sex, national origin, and

“Caucasian” race. She also alleged the creation of a hostile work environment

based on the job duties she was assigned, Kia’s refusal to transfer her to her

preferred department, Kia’s refusal to investigate whether a co-worker had

received a promotion because she was having a sexual relationship with a

supervisor, and being told by some Korean managers that “good mothers stay at

home and don’t work.”

On the afternoon of December 23, Jackson received written notice of

Ledbetter’s EEOC charge. The charge itself indicated that it was faxed from the

same law firm that Gogel and Tyler were using in the litigation of their own

charges: an Atlanta law firm named Barrett & Farahany. Jackson explained in his

deposition that “it was very concerning” and “very puzzl[ing]” to him that

Ledbetter happened to choose the “same law firm” as Gogel and Tyler. Concerned

that Gogel and Tyler were now “recruiting” other employees to sue the company,

Jackson quickly emailed his Korean counterpart, Kim, to alert him and President

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Ahn that it appeared that Gogel and Tyler were recruiting other employees to sue

Kia. Jackson explained in his deposition that he was so shaken by the possibility

that Gogel might be recruiting employees to sue Kia because, as Team Relations

manager, Gogel was responsible for trying to resolve employee complaints

internally, not to recruit employees to sue the company.

Immediately after Jackson received notification on December 23 of

Ledbetter’s EEOC charge, the Kia plant closed for the Christmas holidays.

Thereafter, when the plant reopened during the first week of January 2011, and

while Gogel was still on vacation, one of Gogel’s subordinates, Arthur Williams,

approached Jackson and general counsel Webb and expressed concerns regarding

the conduct of Gogel and Tyler. Williams, a black American male, was one of

three assistant managers working under Gogel in the Team Relations department,

and he enjoyed a friendly relationship with Ledbetter. According to Williams,

during October or November 2010 he noticed that Gogel and Ledbetter were

meeting at various times. Then, at some point in November, Ledbetter confided in

Williams that she, Gogel, and Tyler were planning to sue the company and were all

working with the same attorney to do so.

After this revelation by Ledbetter, Williams began “paying close attention”

and observed frequent meetings between Gogel and Ledbetter, as well as three to

five meetings between Gogel, Ledbetter, and Tyler. Sometimes the meetings

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between Gogel and Ledbetter would last from morning until lunch, and after the

weekly Friday afternoon meetings, Gogel and Ledbetter would sometimes stay

behind, continuing to meet privately even as Williams left for the evening between

5 and 6 p.m. All the while, Ledbetter kept telling Williams that she, Gogel, and

Tyler were going to sue and use the same attorney. Further, Ledbetter indicated to

Williams that Gogel was the ringleader and the catalyst for the trio’s decision to

take legal action. All of these developments were startling to Williams because

Gogel’s and Tyler’s conduct was so at odds with the mission of the Team

Relations department to try to “keep lawsuits from happening,” not to instigate

them.

Williams conveyed the above information to Jackson and Webb when he

met with them in January. In short, Jackson learned from Williams that Gogel and

Tyler were frequently meeting with and actively encouraging Ledbetter to sue Kia,

that they were coordinating through the use of the same lawyer, and that Gogel was

the leader of these endeavors.10 Jackson likewise thought it “very strange” that

Gogel and Ledbetter had been engaging in such frequent meetings. Williams

10

When asked in his deposition whether he had indicated to Jackson and Webb that

Gogel was the leader, Williams responded to the effect that that he had just “repeated [] what

Diana [Ledbetter] told me” and that what Ledbetter “was telling” Williams was that “they were

all filing and they all had the same attorney” and that Gogel was the “leader.” Williams

understood Gogel to be the “catalyst” for the bringing of the EEOC charges because Ledbetter

had led him to believe that Gogel was the “ringleader.”

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further informed Jackson that Gogel exhibited a strong animus against the Korean

management team and that she “hated the Koreans.”

In addition, another assistant Team Relations manager, Paul Grimes, a black

American male, also met with Jackson during this same period of time, and he

corroborated some of the information provided by Williams. Grimes confirmed

that Williams told him that Ledbetter, Gogel, and Tyler were going to sue the

company and that they were trying to “persuade” Ledbetter to “join them in suing”

Kia. Like Williams, Grimes was incredulous that Gogel and Tyler would behave

in this way, but he nonetheless started “paying attention,” and noticed “suspicious

meetings behind closed doors.” He informed Jackson and Webb that “the entire

[Team Relations] department was wondering what was occurring with Diana

[Ledbetter] meeting with Andrea [Gogel] for such long periods of time” and that

“[t]hey would meet as often as three times a week and for several hours.” Further,

“[a]s [the] time approached when they filed their charges,” Gogel, Tyler, and

Ledbetter “were meeting nearly every day . . . for 1-1.5 hours.” 11

Having received the above information from Williams and Grimes, on

January 7, 2011, Jackson and Webb called Gogel in for a meeting. They began by

stating that Webb needed information concerning Ledbetter in order to respond to

11

Ledbetter disputes some of the statements attributed to her and Gogel disputes the

accuracy of some of Williams’ and Grimes’ testimony. See infra at 54 n.24. We discuss those

disputes and the extent to which they are relevant to our ultimate decision later in this opinion.

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the latter’s recent EEOC charge. During this meeting, they inquired whether

Gogel had “colluded” with Ledbetter and whether she had violated the December

6 agreement. The discussion focused on Gogel’s relationship with Ledbetter,

meetings she had with Ledbetter, and what her conversations had been with

Ledbetter. Gogel denied having any significant interactions with Ledbetter,

explaining that her recent meetings had concerned only trivial operational

issues. 12

Jackson placed Gogel on administrative leave following the January 7, 2011

meeting and ultimately terminated her employment on January 19, stating in his

deposition, “I was totally convinced that [Gogel] had solicited and encouraged

other team members to file a lawsuit against the company. I had lost total

confidence and trust in her to perform her jobs, her job duties that she was hired to

do, and I could not continue her employment with Kia.” The formal termination

letter provided as follows:

As you know, your position as Manager of Team Relations in

Human Resources is critically important to [Kia]. One of your

primary duties is to investigate potential discrimination or harassment

claims, either personally or by directly supervising those conducting

the investigations, in order to protect [Kia] by taking prompt action

when warranted. You and [Kia] previously recognized the potential

for conflict of interest in the discharge of your duties, and on

12

During this litigation, however, Gogel admitted to telling Ledbetter that she did not

trust the people at Kia “to listen to or deal with any concerns” and that Gogel was planning

“to seek outside assistance” regarding her own complaints against Kia. Gogel also concedes

that she provided Ledbetter with the name of the attorney with whom Gogel had chosen to

meet.

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December 6, 2010, you signed the attached [agreement]. In this

document you agreed that you would not solicit or influence team

members to make claims against [Kia], you would not put any team

members in a conflict of interest, you would not make any written or

verbal statements to team members that malign the company, and that

you would not seek to access files or documents that relate in any way

to the merits of your claims.

As we discussed on January 7, 2011, Diana Ledbetter filed a

cha[r]ge of discrimination against [Kia] on December 10, 2010. Part

of this charge alludes to claims that [Kia], including Human

Resources, did not properly investigate her complaints against [Kia].

In investigating this charge, [Kia] received credible reports that

[Ledbetter] discussed her intent to file a claim with you in advance of

doing so, that you did not attempt to encourage [her] to internalize the

complaint (rather than to externalize the complaint), and that you did

not notify [Kia] about the likely filing of a charge by another

individual. You were seen by multiple people having numerous,

lengthy private conferences with Ms. Ledbetter during the last two-

three months, yet you denied having any significant recent interaction

with her. Based on our investigation, one could conclude that you

encouraged or even solicited the filing of the charge. At the very

least, there is an appearance of a conflict of interest sufficient to cause

[Kia] to lose confidence in the loyalty and trust that is required by

your position.

Also, since your administrative leave began, we have received

additional reports from within your department and elsewhere which

caused [Kia] to lose faith in you as a manager. Team Members fear

retaliation from you, find inappropriate your stated and demonstrated

personal dislike for many of the managers at [Kia], and are concerned

by your demonstrated animus toward the Korean culture at [Kia].

Finally, some of the Team Members you supervise perceive that you

do not support [Kia’s] positive conciliatory approach to dealing with

issues, but instead prefer a combative win-lose approach which often

escalates issues unnecessarily.

Therefore, [Kia] has no alternative but to discharge you

immediately.

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Following her termination, Gogel filed a second EEOC charge in which she

alleged retaliation by Kia. Specifically, Gogel stated that she had been discharged,

that Kia said it had discharged her for encouraging another employee to file a

charge of discrimination with the EEOC, and that she believed she had been

retaliated against due to her opposition to unlawful acts under Title VII. Kia

subsequently filed its position statement with the EEOC regarding the second

charge, explaining that Gogel “was responsible for conducting and overseeing

investigations, administering corrective action, and evaluating and improving team

member morale. . . . [Gogel] was also responsible for investigating and correcting

any and all complaints of harassment and discrimination in the workplace.” Kia

explained that after receiving notice of Gogel’s first EEOC charge, it had her sign

the December 6 agreement “[i]n an attempt to protect [Kia’s] team members and

proprietary information.” Thereafter, upon receiving Ledbetter’s EEOC charge

and conducting an investigation, Kia discovered from other employees that

Ledbetter and Gogel had met several times, yet Gogel denied these interactions

when questioned. Further, Kia noted that “there were no reports of discrimination

documented or investigations opened regarding Ledbetter during the time period in

question. [Gogel] did not attempt to defuse the situation or handle it in any manner

in which she was employed to do.” Moreover, “after the meetings with [Gogel],

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Ledbetter contacted [Gogel’s] attorney for representation purposes.” Finally, Kia

noted that:

[i]t became obvious to [Kia] that [Gogel] was blatantly dishonest

when explicitly questioned about Diana Ledbetter. Further, she did

not perform her job, but instead encouraged a team member to sue

[Kia] and seek outside counsel to deal with her discrimination charge

instead of handling it in-house. This was clearly a breach of trust, a

conflict of interest, and a blatant failure to perform her job duties.

Accordingly, [Gogel] was terminated on January 19, 2011.

After receiving a right to sue notice from the EEOC, Gogel filed the

underlying action. In her amended complaint, Gogel alleged in relevant part that

Kia terminated her in retaliation for her filing of the first EEOC charge. The

parties filed cross-motions for summary judgment, and the district court denied

Gogel’s motion and granted Kia’s motion. With regard to the retaliation claim, the

district court concluded that Kia did not fire Gogel in retaliation for conduct

protected by Title VII, but instead fired her for a legitimate reason: solicitation of a

subordinate to file an EEOC charge against Kia, in contravention of her job

responsibilities. Gogel appealed, contending that the district court erred in

granting summary judgment for two main reasons: (A) there is a triable issue of

fact as to whether the real reason Kia fired Gogel was because she had filed her

own EEOC charge, not because she solicited another employee to sue the

company, and (B) Kia’s stated reason for terminating Gogel’s employment—

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Gogel’s alleged solicitation of Ledbetter—was itself protected conduct under Title

VII’s opposition clause and could not justify Gogel’s termination.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, “view[ing]

the evidence in the light most favorable to the non-moving party.” Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Although “questions

of fact in job discrimination cases are ‘both sensitive and difficult’ and ‘[t]here will

seldom be “eyewitness” testimony as to the employer’s mental processes,’ . . .

‘none of this means that trial courts or reviewing courts should treat discrimination

differently from other ultimate questions of fact.” Chapman v. AI Transp., 229

F.3d 1012, 1026 (11th Cir. 2000) (en banc) (quoting St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 524 (1993)) (first alteration in original). In other words, “the

summary judgment rule applies in job discrimination cases just as in other cases.”

Id. Summary judgment is proper if the evidence shows “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Further, “[a] mere ‘scintilla’ of evidence supporting

the opposing party’s position will not suffice; there must be enough of a showing

that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d

1573, 1577 (11th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could

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not lead a rational trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.’” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391

U.S. 253, 289 (1968))).

III. DISCUSSION

Title VII prohibits an employer from retaliating against “any . . . employee[]

. . . because [s]he has opposed any practice made an unlawful employment

practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under

[Title VII].” 42 U.S.C. § 2000e-3(a). The first part of the anti-retaliation

provision is known as the “opposition clause” and the second part as the

“participation clause.” See E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174

(11th Cir. 2000). Retaliation claims are also cognizable under 42 U.S.C. § 1981

and are analyzed under the same framework as Title VII claims. See CBOCS W.,

Inc. v. Humphries, 553 U.S. 442, 452–57 (2008); Standard v. A.B.E.L. Servs., Inc.,

161 F.3d 1318, 1330 (11th Cir. 1998).

To make a prima facie case for a claim of retaliation under Title VII, a

plaintiff must first show (1) that “she engaged in statutorily protected activity,”

(2) that “she suffered an adverse action,” and (3) “that the adverse action was

causally related to the protected activity.” Jefferson v. Sewon Am., Inc., 891 F.3d

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911, 924 (11th Cir. 2018); Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir.

2009).

Once the prima facie case is established, it creates a “presumption that the

adverse action was the product of an intent to retaliate.” Bryant, 575 F.3d at 1308.

The burden of production then shifts to the employer to rebut the presumption by

articulating a legitimate, non-discriminatory reason for the employment action. Id.

If the employer produces such a reason, the presumption is rebutted, and the

plaintiff must then demonstrate that the “proffered reason was merely a pretext to

mask [retaliatory] actions.” Id. To establish the necessary causation, a plaintiff

must demonstrate that “her protected activity was a but-for cause of the alleged

adverse action by the employer.” Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 362 (2013). In other words, “a plaintiff must prove that had she not [engaged

in the protected conduct], she would not have been fired.” Jefferson, 891 F.3d at

924. “Importantly, throughout this entire process, the ultimate burden of

persuasion remains on the employee.” Sims v. MVM, Inc., 704 F.3d 1327, 1333

(11th Cir. 2013).

A. Summary Judgment is Warranted on Gogel’s Retaliation Claim

Alleging that She Was Fired Because She Filed An EEOC Charge

In support of her retaliation claim, Gogel contends that the real reason Kia

fired her was because she had filed an EEOC charge—which is clearly protected

conduct under Title VII’s participation clause—not because she solicited another

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employee to sue the company. In other words, Gogel argues that Kia’s stated

reason for her termination—her recruitment of a subordinate to sue the company—

is a pretext intended to mask its true reason for taking this action. This argument is

without merit.

Kia concedes, and we will likewise assume, that Gogel established a prima

facie case as to her retaliation claim based on her filing of the first EEOC charge.

Specifically, (1) the filing of her first EEOC charge constituted protected conduct;

(2) thereafter, Gogel was fired; and (3) there was a causal connection between the

two events sufficient to withstand the requirements for making a prima facie case,

which has traditionally required a showing “that the protected activity and the

adverse action were not wholly unrelated.”13 Goldsmith v. Bagby Elevator Co.,

13

As noted, for purposes of proving causality in a Title VII retaliation claim, the

Supreme Court in Nassar held that a plaintiff must prove that but for the protected conduct, the

defendant would not have taken the particular adverse action. We and other circuit courts have

integrated this but-for standard into our summary judgment analysis. See Knox v. Roper Pump

Co., 957 F.3d 1237, 1245 (11th Cir. 2020); Jefferson, 891 F.3d at 924; cf. Nesbitt v. Candler

Cty., 945 F.3d 1355, 1359 (11th Cir. 2020) (applying the “but for” test to a summary judgment

decision involving the antiretaliation provision of the False Claims Act).

Circuit courts, however, have been inconsistent on the question whether Nassar’s but-for

causation standard applies at the prima facie stage of the summary judgment analysis or whether

it is at the pretext stage of the analysis when the plaintiff must satisfy this standard. Compare

Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (a plaintiff must show at the

pretext stage “that retaliation was the real reason for the adverse employment action” and that the

adverse action “would not have occurred in the absence of—that is, but for—the defendant’s

conduct.” (alteration adopted) (internal quotation marks omitted)); Garcia v. Prof. Contract

Serv., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (a plaintiff must satisfy the Nassar but-for test at

the pretext stage of the analysis); Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 258–59

(3d Cir. 2017) (likewise requiring the plaintiff to satisfy the but-for test at the pretext stage of the

analysis) with Mollet v. City of Greenfield, 926 F.3d 894, 896–97 (7th Cir. 2019) (applying the

Nassar but-for test at the prima facie stage); Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir.

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513 F.3d 1261, 1277–78 (11th Cir. 2008) (quoting Simmons v. Camden Cty. Bd. of

Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)). The burden of production then

shifted to Kia to articulate a legitimate, non-retaliatory reason for firing Gogel.

Kia articulated such a reason. Specifically, Kia explained that it fired Gogel not

because she filed an EEOC charge, but because she had recruited another

employee to sue the company, which conduct Kia believed to have rendered Gogel

ineffective in her position as Team Relations manager.14 Thus, Kia rebutted the

presumption, arising from Gogel’s prima facie showing, that the adverse action

was the product of an intent to retaliate. Bryant, 575 F.3d at 1308.

Therefore, to defeat summary judgment, Gogel had to demonstrate that

Kia’s proffered reason for its decision—Gogel’s solicitation of Ledbetter to sue

Kia—was merely a pretext to mask its real reason—Gogel’s filing of an EEOC

charge—and that but for this latter action Kia would not have fired her. We have

2019) (same); Redlin v. Grosse Point Pub. Sch. Sys., 921 F.3d 599, 614–15 (6th Cir.

2019)(implying that the Nassar test applies at the prima facie stage).

In Jefferson, we did not squarely address whether the but-for test should apply at the

prima facie or pretext stage of analysis, but we did remark that, in the summary judgment

context, the question was whether a reasonable jury could find that the employer’s “explanation

was pretextual and that [the plaintiff’s] complaint was the ‘but-for cause’ of her termination.”

Jefferson, 891 F.3d at 925. In Roper, we also applied Nassar’s but-for standard when discussing

whether a reasonable jury could find that the plaintiff was terminated based on his protected

activity, a question that arises during the pretext stage of analysis. Roper, 957 F.3d at 1245–46.

Likewise, we will assume here that the but-for test is to be applied at the pretext stage of the

summary judgment examination, and our analysis so proceeds under this assumption.

14

We address in subsection B Gogel’s contention that her alleged recruitment of

Ledbetter was itself protected conduct under Title VII and therefore could not justify her

termination.

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repeatedly emphasized that “[p]rovided . . . the proffered reason is one that might

motivate a reasonable employer, an employee must meet that reason head on and

rebut it . . . .” Chapman, 229 F.3d at 1030; see also Hornsby-Culpepper v. Ware,

906 F.3d 1302, 1312 (11th Cir. 2018); Ash v. Tyson Foods, Inc., 664 F.3d 883,

892–93 (11th Cir. 2011); Alvarez v. Royal Atl. Dev., Inc., 610 F.3d 1253, 1265–66

(11th Cir. 2010); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.

2004). Thus, to establish pretext at the summary judgment stage, a plaintiff must

demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.” Jackson v. Ala.

State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Combs v.

Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). “[A] reason is not

pretext for [retaliation] ‘unless it is shown both that the reason was false, and that

[retaliation] was the real reason.’” Springer v. Convergys Customer Mgmt. Grp.

Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cty. Comm’n of

Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)). And to repeat, in

determining whether the plaintiff has met her burden to show pretext, we remain

mindful that it is the plaintiff’s burden to provide evidence from which one could

reasonably conclude that but for her alleged protected act, her employer would not

have fired her.

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Gogel has not shown “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in Kia’s stated reason for discharging her—her

solicitation of another employee to sue the company—sufficient to provide a

legitimate ground for a reasonable factfinder to find that explanation to be

unworthy of credence. In short, she has failed to provide evidence showing that

but for her filing of an EEOC charge, Kia would not have fired her. As noted, Kia

did not fire Gogel upon receiving notice of her EEOC charge on November 22,

2010. To the contrary, Kia granted her request for additional vacation time,

awarded her a $12,000 discretionary bonus, and Jackson advised Gogel that she

was doing a good job. It was only when Kia later learned—46 days after it had

received her EEOC charge15—that Gogel had recruited a subordinate to sue the

company that Kia concluded Gogel could no longer function in her highly sensitive

position as manager of Team Relations and that she must therefore be discharged.

15

Gogel and our dissenting colleagues, Judges Martin and Wilson, argue that evidence of

pretext is present because her termination in January 2011 was in close temporal proximity to the

filing of her own November 2010 EEOC charge. While close temporal proximity between the

protected conduct and the adverse employment action can establish pretext when coupled with

other evidence, temporal proximity alone is insufficient. See Johnson v. Miami-Dade Cty., 948

F.3d 1318, 1328 (11th Cir. 2020) (temporal proximity of less than two months was insufficient

by itself to establish pretext); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298

(11th Cir. 2006) (the close temporal proximity of two weeks was evidence of pretext but

“probably insufficient to establish pretext by itself”); Wascura v. City of South Miami, 257 F.3d

1238, 1244–45 (11th Cir. 2001) (a three and one-half month period between the employee’s

protected conduct and her termination was, standing alone, insufficient to demonstrate pretext).

And here, an intervening event—Kia’s discovery of information indicating that Gogel had

solicited Ledbetter to sue and had provided her with the name of an attorney to use—undermined

the significance of any temporal proximity.

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Gogel is necessarily arguing that if she had recruited Ledbetter to sue the company

and referred her to an attorney, but had never filed her own EEOC charge, Kia

would not have fired her. Yet, there is no evidence16 to reasonably support an

inference that Kia would have fired Gogel following the filing of Gogel’s charge

had the Ledbetter matter not later come to its attention. 17 In fact, all the record

16

In support of their argument that a reasonable jury could have concluded that Gogel’s

filing of the first EEOC charge was the “but-for” cause of Kia’s decision to fire her, our

dissenting colleagues cite to evidence they say shows that Robert Tyler was likewise retaliated

against when he was fired after he filed his EEOC Charge. In other words, they argue that

because Kia engaged in similar retaliation toward another employee who filed an EEOC charge,

Gogel has bolstered her claim that she too was fired because she had filed a charge.

At least one problem with this argument is the fact that our Court has reviewed Tyler’s

retaliation claim and concluded that Kia did not retaliate against Tyler based on his filing of a

charge. Specifically, Kia was granted summary judgment on Tyler’s claim of retaliatory

termination, and we affirmed that grant on appeal. See Tyler, 702 F. App’x at 952. In affirming,

we noted that Kia had stated that it fired Tyler because he improperly downloaded confidential

files to his personal computer in violation of both company policy and the conflict of interest

agreement he entered after filing his EEOC charge. Id. at 951. We concluded that Tyler had not

“provide[d] any evidence demonstrating ‘weaknesses, implausibilities, or inconsistencies’” in

Kia’s proffered justification sufficient to show that Kia’s non-retaliatory reasons for firing him

were pretextual. Id. While Tyler, which involves a different plaintiff, does not represent the law

of the case, its reasoning nonetheless applies equally to Gogel’s claim of pretext, which we

likewise find to be unsupported by the evidence.

Similarly, Ledbetter’s assertion that, after Gogel’s termination, she felt pressured to drop

her own EEOC charge and to acknowledge that Gogel had played a role in her decision to file an

EEOC charge does not suggest a weakness, implausibility, or inconsistency in Kia’s explanation

that it fired Gogel, not because Gogel had filed an EEOC charge, but because Gogel had acted in

contradiction of Kia’s core expectations for a person in her position. See id.

17

Indeed, our dissenting colleague, Judge Martin, earlier appeared to share this view in

her majority panel opinion (now vacated) when, in rejecting Gogel’s claim that she was

terminated because of her gender and national origin, she stated, “Rather, the record strongly

indicates that Kia fired Ms. Gogel for assisting Ms. Ledbetter with her charge.” Gogel, 904 F.3d

at 1239. As to the majority panel opinion’s discussion of the retaliation claim, Gogel’s filing of

the first EEOC charge was apparently deemed so unlikely a candidate for the protected activity

retaliated against that the majority panel opinion never even mentioned it as a possible basis for

the retaliation claim. Instead, the majority panel opinion focused solely on whether Gogel’s

alleged solicitation of another employee to sue constituted protected activity, concluding that

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evidence pointed to the continuation of the employment relationship between

Gogel and Kia after Gogel filed her charge. Conversely, had Gogel only recruited

Ledbetter to sue the company, providing her with the name of an attorney to use in

this endeavor—but never filed her own EEOC charge 18—nothing in the record

supports an inference that Kia would have tolerated such conduct from its Team

Relations manager. See discussion infra in subsection B. In short, having failed to

demonstrate that Kia’s stated reason for firing her was a pretext to mask a

retaliatory motive, Gogel has necessarily failed to show that a reasonable jury

could find that but for the filing of her EEOC charge she would not have been

fired.

“Viewing the evidence in the light most favorable to Ms. Gogel, the record shows that Kia fired

her for engaging in protected opposition activity, which she carried out in a reasonable manner.”

Gogel, 904 F.3d at 1238.

18

Our dissenting colleague, Judge Rosenbaum, faults us for limiting ourselves to

consideration of Gogel’s filing of the first EEOC Charge and for failing to consider whether one

could infer that Kia fired Gogel because of her prior complaints concerning perceived

mistreatment of herself and others. Although Gogel has certainly provided in great detail her

version of her interactions with Kia, including internal complaints she made during her

employment, she has focused on the filing of her first EEOC charge, which charge claimed

discrimination based on Kia’s refusal to designate her position as an HOD, as the primary event

triggering Kia’s decision to fire her. At any rate, consideration of any prior incidents between

Gogel and Kia—many of them occurring long before Gogel ever filed a charge—does not

change the above analysis. Despite Gogel’s earlier internal complaints while employed with

Kia, Kia fired her only when it became aware of facts suggesting that she had recruited Ledbetter

to sue the company. There is no evidence to suggest that Kia would have allowed Gogel to

remain as Team Manager once Kia received information that Gogel had solicited a subordinate

to sue the company and had provided that employee with the name of a lawyer to use—

regardless of whether or not Gogel had previously complained internally. Thus, this “prior

complaints” evidence does not satisfy Gogel’s burden to demonstrate pretext or otherwise

provide evidence from which one could reasonably infer that but for these prior complaints, Kia

would not have fired her.

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B. Gogel’s Solicitation of Ledbetter Did Not Constitute Protected

Activity

Alternatively, Gogel argues that her termination violates Title VII and

§ 1981 because, even assuming arguendo that she recruited Ledbetter to sue the

company, as Kia came to believe, such conduct is itself protected activity under the

opposition clause and, therefore, it could not provide Kia with a legitimate,

nonretaliatory reason for her termination. In response, Kia contends that by

attempting to recruit another employee to sue Kia, Gogel’s action so conflicted

with her responsibilities as Team Relations manager that it cannot be considered to

constitute protected activity. Because the parties have assumed that Kia’s stated

reason for firing Gogel cannot rebut her prima facie case of retaliation under the

participation clause if that reason would violate the opposition clause, we assume

that premise without deciding the question.

1. Legal Framework

The question then is whether, in light of her responsibilities in the Team

Relations Department, Gogel’s recruitment of a subordinate to sue the company

constituted conduct protected against retaliation under the opposition clause. Our

precedent provides a ready answer: when the means by which an employee

expresses her opposition “so interferes with the performance” of her job duties

“that it renders [her] ineffective in the position for which [she] was employed,” this

oppositional conduct is not protected under Title VII’s opposition clause. Rosser

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v. Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221, 223 (5th Cir.

1980). And here, Gogel’s efforts to recruit an employee to sue the company so

clearly conflicted with the performance of her job duties as the manager of the

Team Relations department that it rendered her ineffective in that position and

reasonably prompted Kia to conclude that it could no longer trust her to do the job

for which she was being paid.

“[I]t is well established that the protection afforded by [Title VII’s

opposition clause] is not absolute.” Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d

397, 400–01 (11th Cir. 1989). To qualify for protection under the opposition

clause, “the manner in which an employee expresses her opposition to an allegedly

discriminatory employment practice must be reasonable.” Id. at 401. When

examining the reasonableness of the manner of an employee’s conduct, we

“balanc[e] the purpose of the statute and the need to protect individuals asserting

their rights thereunder against an employer’s legitimate demands for loyalty,

cooperation and a generally productive work environment.” Id.

In fact, since Rosser, we have repeatedly recognized that some otherwise

protected oppositional conduct can fall outside Title VII’s protection if the conduct

so interferes with an employee’s performance of her job duties that it renders her

ineffective in the position in which she is employed. For instance, in Hamm v.

Members of the Board of Regents of the State of Florida, 708 F.2d 647, 654 (11th

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Cir. 1983), we affirmed the dismissal of a Title VII retaliation claim for failing to

state a prima facie case, holding that the plaintiff failed to show protected activity

because the plaintiff’s activities in opposition to alleged discrimination conflicted

with the plaintiff’s essential duties as a human resources advisor. Specifically,

Hamm’s “duties included investigating instances of alleged discrimination, filing

written reports of her findings with the appropriate supervisory personnel, and

recommending appropriate action for their final approval or disapproval.” Id. The

record showed, however, that rather than follow her employer’s established

procedures for resolving discrimination complaints, the employee consistently

acted as an advocate on behalf of aggrieved employees. Id. at 653–54. We

concluded that her actions were not protected under Title VII because she

“repeatedly chose to work outside the framework [her employer] was attempting to

establish to deal with discrimination claims. [And] [a]n employer may remove an

employee from a position similar to that at issue here without violating Title VII

based on the manner in which the employee undertakes his or her duties.” Id. at

654.

Similarly, in Whatley v. Metropolitan Atlanta Rapid Transit Authority

(“MARTA”), 632 F.2d 1325, 1326 (5th Cir. 1980), the plaintiff, an Equal

Employment Opportunity compliance officer for MARTA, alleged that he was

retaliated against when he was terminated after engaging in protected conduct by

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filing a formal discrimination complaint on behalf of another employee. On

appeal, we affirmed the denial of his retaliation claim, concluding that the plaintiff

was not fired because he had participated in a statutorily protected activity (filing

the complaint). Id. at 1329. Instead, he was fired because he had violated the

company’s normal reporting procedures and assumed a role that conflicted with his

job responsibilities. Id. In so holding, we emphasized that “[f]ailing to follow

prescribed administrative procedures is not a statutorily protected activity. Title

VII cannot be held to immunize an employee from all consequences of his

behavior merely because part of his job happens to require the handling of

discrimination complaints.” Id.

Additionally, in Jones v. Flagship International, 793 F.2d 714, 716 (5th Cir.

1986), the plaintiff was in-house legal counsel and the Manager of Equal

Employment Opportunity Programs for her employer, and her duties included

investigating charges of discrimination brought against the company, conciliating

such charges, representing the company before various agencies, and preparing an

affirmative action plan. At some point, the plaintiff experienced sexual harassment

in the workplace and complained to her superiors, but her grievances were ignored.

Id. at 716–17. She then filed a charge with the EEOC alleging pay discrimination

and sexual harassment. Id. at 717. Upon learning of her charge, her employer

suspended her with pay. Id. Following her suspension, Jones’s employer received

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information that Jones also solicited another employee to file a discrimination

charge against the company and invited another employee to join in a lawsuit

against the company. Id. Jones was later fired, and she brought a retaliation claim.

Id. at 717–18. Discussing the impact of Jones’s solicitation of another employee to

sue the company, the Fifth Circuit cited Rosser for the proposition that even

sincere opposition to discriminatory practices under Title VII “may be so

disruptive or inappropriate as to fall outside the protections of § 704(a).” Id. at

728. The court agreed that an employer’s right to run its business must be

balanced against the rights of an employee to express her grievances and promote

her own welfare. Id. However, the court noted that the plaintiff’s “right to express

her grievances and promote her own welfare did not depend on others joining in

her suit.” Id. Thus, applying the above tests to the facts before it, the Fifth Circuit

concluded that, given Jones’s particular job responsibilities, her solicitation of

others to sue the company was not protected conduct for purposes of a retaliation

claim. Id. Jones is very similar to the case at hand, and we have cited the Fifth

Circuit’s decision in Jones with approval. See Rollins, 868 F.2d at 401 (noting that

Jones is “consistent” with this Court’s precedent).

And in Rollins, we expanded on the “rendered-ineffective-in-the-job” test set

out in Rosser and Hamm. Rollins filed a frequent number of both informal and

formal complaints of discrimination. Id. at 398. Notably, in doing so, she

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compromised none of the responsibilities of her position. Specifically, she was a

technician, not a human resources manager, and she filed a complaint only on her

own behalf. Id. There was no solicitation or recruitment of other employees to file

a complaint, nor would such conduct have conflicted with Rollins’s job

responsibilities as none of her job responsibilities involved working to resolve

discrimination complaints. Thus, her oppositional conduct did not render her

ineffective in her position. Nevertheless, we determined that the manner in which

Rollins leveled her grievances—filing an overwhelming number of mostly

spurious complaints and frequently doing so in an insubordinate and antagonistic

manner—was unreasonable. Id. at 399. Given that reasonableness of oppositional

conduct is determined by “balancing the purpose of the statute and the need to

protect individuals asserting their rights thereunder against an employer’s

legitimate demands for loyalty, cooperation and a generally productive work

environment,” id. at 401, Rollins’ conduct—which clearly undermined a

productive work environment—was not protected. Id.

In short, Rosser established the principle that an employee’s oppositional

conduct loses its protection when the manner chosen to voice that opposition so

interferes with the employee’s performance of her job that it renders her ineffective

in the position for which she was employed. Rollins expanded on that principle,

holding that even if an employee’s oppositional conduct does not interfere with the

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employee’s performance of her own duties, it can still be deemed unreasonable—

and thereby lose its protected status—if the opposition is expressed in a manner

that unreasonably disrupts other employees or the workplace in general. It is the

principle announced in Rosser that is most pertinent to our analysis in this case.

We reject the argument of our dissenting colleague, Judge Rosenbaum, that Rollins

is relevant to determining whether an employee’s manner of opposition so

interferes with her job responsibilities that it is unprotected. Our decisions in

Rosser, Hamm, and Whatley govern that question; Rollins instead concerns the

distinct question whether conduct that does not interfere with an employee’s job

duties is nonetheless so disruptive that it does not qualify for protection.

The requirement that opposition to allegedly unlawful employment practices

must be done in a reasonable manner is well-established not only in this Circuit,

but also in sister circuits. See, e.g., Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000)

(“A question of retaliation is not raised by a removal for conduct inconsistent with

[the employee’s] duties, unless its use as a mere pretext is clear.” (alteration in

original) (quoting Pendleton v. Rumsfeld, 628 F.2d 102, 108 (D.C. Cir. 1980)));

Robbins v. Jefferson Cty. Sch. Dist. R-1, 186 F.3d 1253, 1259 (10th Cir. 1999)

(adopting Rollins’s reasonableness balancing test), abrogated on other grounds,

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002); Laughlin v.

Metro. Wash. Airports Auth., 149 F.3d 253, 260 (4th Cir. 1998) (affirming district

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court’s decision that an employee did not engage in protected activity where she

breached her employer’s trust by copying confidential documents and giving them

to an outside party, as “Title VII was not intended to immunize insubordinate,

disruptive, or nonproductive behavior at work” (quotation omitted)); Holden v.

Owens-Illinois, Inc., 793 F.2d 745, 751 (6th Cir. 1986) (citing Rosser for the

proposition that an employee’s conduct is not covered by Title VII’s opposition

clause if the conduct “so interferes with the performance of [the employee’s] job

that it renders him ineffective in the position for which he was employed.”); Jones,

793 F.2d at 728 (citing Rosser for the proposition that even sincere opposition to

discriminatory practices under Title VII “may be so disruptive or inappropriate as

to fall outside the protections of [Title VII]”). 19

Our dissenting colleague, Judge Martin, seems to question the validity of the

legal principles applied in Hamm and Jones because appellate review of the ruling

for the defendant in those cases occurred after a bench trial, instead of a motion for

summary judgment. That fact does not vitiate the legal principles applied in those

cases. In each case, both the district court and the appellate court proceeded

19

The EEOC filed an amicus brief in favor of Gogel, however, its own guidance manual

provides that “the protection of the opposition clause only applies where the manner of

opposition is reasonable” and that “[o]pposition to perceived discrimination also does not serve

as license for the employee to neglect job duties. If an employee’s protests render the employee

ineffective in the job, the retaliation provisions do not immunize the employee from appropriate

discipline or discharge.” EEOC Enforcement Guidance on Retaliation and Related Issues, 2016

WL 4688886, *8–9 (E.E.O.C. Guidance (Aug. 25, 2016)).

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through the McDonnell Douglas framework in analyzing the retaliation claim. In

Hamm, we affirmed the district court’s grant of judgment as a matter of law at the

completion of the plaintiff’s case, applying the McDonnell Douglas test and

concluding that the plaintiff had failed to make a prima facie case because the

manner of her opposition rendered that conduct unprotected. Hamm, 708 F.2d at

653–54. In Jones, the Fifth Circuit affirmed the district court’s ruling for the

defendant that, while the plaintiff had made a prima facie case of retaliation (she

was fired after filing an EEOC charge), she had nonetheless failed to prove a

causal connection between that act and the defendant’s termination decision, given

conduct by the plaintiff that sharply conflicted with her job responsibilities. Jones,

793 F.2d at 724–25.

Nevertheless, whatever fact-finding the above district courts may have

engaged in to reach their rulings, the appellate court’s review of those decisions

resulted in the articulation of legal principles that the appellate court then applied

to the universe of facts before it. Likewise, in this case we have applied those

same principles recognized in our precedent to the undisputed material facts in this

case. In any event, Rosser did not involve a bench trial, but instead a summary

judgment ruling that we affirmed, and in doing so we announced the seminal

principle as to when an employee’s conduct loses its protection that has been

recognized in our circuit for forty years, a principle that controls in this case.

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Before leaving the above discussion of our precedent concerning the

circumstances under which otherwise protected conduct can lose its protection, we

address our dissenting colleague Judge Rosenbaum’s efforts to dismantle that

precedent. Our colleague initially appears to give a grudging nod to the principle

that an HR manager whose duty is to endeavor to resolve employee complaints

internally violates that responsibility when she instead recruits a subordinate to sue

the company and provides that subordinate with the name of an attorney to do so.

But Judge Rosenbaum then crafts an exception so amorphous and unworkable as to

gut this principle. Specifically, according to Judge Rosenbaum, if the HR manager

is unhappy with the employer’s decision not to conduct an investigation suggested

by the manager or if, in the manager’s view, the employer has engaged in conduct

that the manager thinks might be discriminatory under Title VII, then the manager

is transformed into a free agent who, no longer tethered to her previous job duties,

may not only urge the discontented employee to sue, but also facilitate that effort

by identifying a lawyer for the employee to use. In other words, now empowered

to act as the ultimate arbiter of her employer’s conduct, the manager is free to

abandon the responsibilities of her position, yet still keep her job.

At bottom, Judge Rosenbaum argues that whenever a plaintiff HR manager

with job responsibilities like Gogel’s abandons those responsibilities because she

finds fault with the employer’s decisions and is then terminated, the balancing test

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(discussed above) requires that the judicial decision-maker determine whether the

manager should nonetheless be given a pass and allowed to remain in her job.

Leaving aside the absence of any standard by which a court or jury would be

guided in its decision whether to extend amnesty to an employee who has decided

that she no longer needs to perform her job duties, this position turns on its head

the long-standing principle that Title VII does not empower a court (or jury) to “sit

as a super-personnel department that reexamines an entity’s business decisions.”

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting

Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)).

As a corollary to the above argument, our dissenting colleague cites Payne v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. Unit A 1981) in

support of her position that only a jury can properly decide whether Gogel’s

solicitation of a subordinate to sue Kia, in contravention of her job responsibilities,

is protected conduct. Payne does not support this contention nor override Rosser.

The plaintiff in Payne was a seasonal laborer who, in the offseason, engaged in

picketing and boycotting activities against his sometime employer based on his

belief that the employer engaged in racially discriminatory practices. When he was

not rehired as the next season rolled around, he sued under Title VII, claiming that

the employer’s failure to rehire him was done in retaliation for his protected

activity of picketing. The legal question before the district court was whether the

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plaintiff was required to prove that the employer had actually engaged in

discriminatory practices or whether the plaintiff need only show his reasonable

belief that the employer had done so. We affirmed the district court’s decision that

the plaintiff must only show the latter. Id. at 1140.

On appeal, however, the defendant employer argued for the first time that

the form of plaintiff’s opposition—boycotting and picketing by a former

employee—did not constitute the type of activity that could be considered to be

protected. Id. at 1142. We held that the employer was obliged to make that

argument and introduce any supporting evidence when the case was before the

district court, not for the first time on appeal. Id. at 1144. Further, because we

were not prepared to say, as a matter of law, that picketing and boycotting by a

former employee was “clearly unprotected,” given that the plaintiff was not

working for the defendant at the time of the activity and therefore had little

opportunity for direct access to air his grievances, id. at 1145, and because

“further factual development [was] essential for a proper resolution of this issue,”

id. at 1146, we declined the defendant’s request that we opine one way or the other

as to whether the plaintiff’s conduct was protected, id. at 1146 n.15. Finally,

because the employer had failed to raise this issue before the district court, we also

declined to remand this question to the district court, but instead simply affirmed

the latter’s judgment for plaintiff. Id. at 1146.

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In the course of reaching this decision, we made the observation on which

our dissenting colleague relies, “[a]t least where conduct is not unprotected as a

matter of law, the fact finder must have an opportunity to hear evidence, to balance

the competing considerations, and to reach a conclusion as to the reasonableness of

the conduct.” Id. Leaving aside the fact that the statement is arguably dicta, 20 it

does not change the analysis of this case. In contrast with Gogel, there was no

contention in Payne that, had he been rehired, the plaintiff’s picketing activity

while not employed with the company would so interfere with the performance of

his job duties as a seasonal laborer that it would render him ineffective in that

position, as was the case in Rosser. Further, the Payne court clearly did not say

that summary judgment could never be warranted on the question whether

particular conduct was protected; in fact, it cited with approval Rosser, which

affirmed the granting of summary judgment to the defendant employer based on

the latter’s argument that the plaintiff’s particular oppositional conduct was not

protected because it rendered her ineffective in her job position. Id. at 1142–43.

Finally, in this case, Gogel’s solicitation of a subordinate to sue the company, and

20

See United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (“As our cases

frequently have observed, dicta is defined as those portions of an opinion that are ‘not necessary

to deciding the case then before us.’” (quoting United States v. Eggersdorf, 126 F.3d 1318, 1322

n.4 (11th Cir. 1997))). In Payne, as to the defendant’s request that we consider its belated

argument, we held that because the defendant’s new argument required further factual

development, it could therefore not be decided as a matter of law on appeal, and because the

defendant should have earlier raised this argument before the district court, we likewise did not

remand for the district court to oversee the necessary factual development.

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her providing the name of a lawyer to help in that endeavor, so conflicted with her

duties as Team Manager that this conduct rendered her ineffective in that position

as a matter of law.

In short, we do not have to concern ourselves further with the problems

inherent in the approach that our dissenting colleague puts forward because we

have precedent that controls in this case and that precludes the new test that Judge

Rosenbaum would have us adopt. To repeat, this precedent in Rosser provides that

an employee’s oppositional conduct loses its protection when the manner chosen to

voice that opposition so interferes with the employee’s performance of her job that

it renders her ineffective in the position for which she was employed. And as

explained below, that is what happened in this case.

2. Application of The Above Legal Standard to This Case

Turning to the present case, there is no dispute that Gogel had every right to

oppose actions directed toward her by Kia that she deemed to violate Title VII.

And throughout her tenure, she exercised her right to complain, particularly about

the subject matter of her first EEOC charge: Kia’s failure to classify Team

Relations as its own separate department, with Gogel as its HOD. The making of

informal complaints or the use of an internal grievance system is protected conduct

under the opposition clause. See Furcron v. Mail Centers Plus, LLC, 843 F.3d

1295, 1311 (11th Cir. 2016) (“Title VII’s protections are not limited to individuals

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who file formal complaints, but extend to those who voice informal complaints as

well.” (citing Rollins, 868 F.2d at 400)). Likewise, there is no dispute that Gogel’s

filing of her own EEOC charge was also protected. Yet, Kia never disciplined

Gogel for making these internal complaints nor did it fire Gogel upon learning that

she had filed an EEOC charge. Instead, as noted above, after the latter event,

Gogel was given a bonus and told that she was doing a good job.

As for oppositional conduct by Gogel on behalf of other employees, Gogel

likewise enjoyed the right to report to management any concerns she had about the

way in which Kia was treating its employees. And the record indicates that she did

so. Gogel’s internal advocacy before Kia management on behalf of other

employees was clearly protected conduct. Yet, Gogel was never disciplined for

advocating for other employees or relaying any complaints they may have shared.

But when Gogel surreptitiously recruited Ledbetter to sue Kia 21—not just

encouraging Ledbetter but giving her the name of the attorney with whom Gogel

was also meeting—Gogel acted in direct conflict with her job responsibilities and

was thereby rendered ineffective in the Team Relations manager position, as Kia

could no longer trust Gogel to do the job for which she was hired. After all, it was

21

Gogel and Ledbetter deny that Gogel recruited Ledbetter to sue Kia. See infra at 54

n.24. But as discussed infra at 54–56, the pertinent question for purposes of examining the

propriety of Kia’s decision to terminate Gogel is what Kia in good faith believed to have been

Gogel’s conduct. And Jackson’s unrebutted testimony indicates that he believed Gogel to have

so acted.

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the Team Relations department to whom employees would address complaints

about their employment, including complaints about discrimination or harassment.

Team Relations members were hired to investigate complaints, resolve conflicts,

and be an advocate for the team members in the best interests of the company. As

Team Relations manager, Gogel occupied a position of trust and confidence and

was tasked with trying to maintain employee morale. Further, as the testimony

consistently indicated, the Team Relations department, and certainly its manager,

were expected to interact with complaining employees in an effort to internalize

the resolution of any complaint and thereby avoid, if possible, the external

resolution of that complaint, such as the filing of an EEOC charge and a

subsequent lawsuit.

Specifically, as Tyler, the HOD of Human Resources under whose umbrella

Gogel’s Team Relations operated, acknowledged, Team Relations was charged

with “[e]nsuring a positive work environment and ensuring that team members

(employees) don’t have a need to seek out third parties,” to resolve their

complaints. By third parties, Tyler meant “litigation and lawsuits,” “government

organizations,” and “labor unions.” Tyler agreed that Kia’s expectations for its

Team Relations manager was someone “who could interact with the employees to

avoid the employees going to third parties.”

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Likewise, Jackson explained that the Team Relations manager is expected to

advise him at all times if the manager becomes aware that an employee is

considering legal action. He explained that a manager is absolutely not supposed

to solicit litigation against the company or recruit an employee to sue, and to do so

would be in conflict with the responsibilities of the position. As Jackson testified,

“I don’t want my team relations manager out soliciting and encouraging other team

members to file lawsuits. That’s not what she’s paid to do. That’s not what she

was hired to do.” Jackson reiterated this point: “[S]he shouldn’t be out soliciting

and encouraging other team members to file lawsuits. She’s paid to prevent

lawsuits. She’s paid to let me know [] if other people are interested in filing

lawsuits. That’s what her job is supposed to be doing.” And again: “She has an

obligation to let me know that if she knows someone is going to file a lawsuit

against our company, she has the . . . responsibility to let me know about that.”

And yet again: “I think I said earlier that I had a major concern with my Manager

of Team Relations soliciting and encouraging other team members to file a lawsuit

against our company. That role is paid to help people and prevent lawsuits from

being filed, not to encourage and solicit lawsuits to be filed. . . . The Team

Relations Manager’s role is to do everything possible to keep—or basically not to

encourage other team members to file lawsuits against our company.”

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Similarly, Williams, the assistant Team Relations manager who worked

directly under Gogel, also agreed that in recruiting Ledbetter to sue the company,

Gogel had acted contrary to the expectations of her job, which was to try to resolve

an employee’s problem without the latter taking legal action, not encourage the

employee to take that action: “I mean you don’t go to a doctor to get leukemia.

We’re the people that’s [sic] supposed to keep lawsuits from happening.”

Likewise, Kia’s Rule 30(b)(6) witness, Latesa Bailey, who later succeeded

Tyler as Kia’s HOD of Human Resources, testified that a Team Relations manager

is the person in charge of employee relations for the entire company, and that a

Team Relations manager who solicits an employee to sue the company has acted

“in direct contradiction to what she was actually hired for.” “[Gogel’s] primary

job duty was to resolve employment conflicts, any type of disputes, to try to

resolve them before they got out to an outside party, such as an attorney or the

EEOC.” Given the responsibilities of Gogel’s position, it was a breach of those

responsibilities for her instead to recruit a team member to sue the company. As

Bailey noted, “I don’t know a company that actually hires someone [as a Team

Relations manager] . . . to solicit team members to file a charge against the

company for a lawsuit.”

Gogel likewise agrees that Team Relations conducted investigations into

employees’ allegations of discrimination and that it was her department’s

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responsibility to assist Jackson in resolving potential discrimination problems. She

acknowledges that she would have been involved in making a recommendation as

to the disposition of an investigation, either to Jackson or the legal department or

both. Her involvement was particularly important when the investigation

concerned a member of management.

All of the witnesses identified above—the Vice President for Human

Resources, two HODs of Human Resources, and Gogel’s assistant Team Relations

manager—testified that it was an important part of the Team Relations manager’s

job to attempt to resolve employee complaints in a way that would avoid litigation.

Jackson and Bailey further testified that a Team Relations manager who instead

solicits an employee to sue the company has acted in direct contradiction to what

she was actually hired for. Gogel provides no evidence contradicting the testimony

of these Kia witnesses that a Team Relations manager was expected to investigate

an employee’s complaint with the goal of resolving that complaint internally or,

conversely, that a Team Relations manager who recruits an employee to sue the

company has acted in conflict with a central responsibility of her position. Instead,

her only attempted response to this undisputed evidence is itself not responsive.

For example, Gogel proffers her own testimony that she lacked any power to

prevent a complaining employee from filing a lawsuit against the company, “as

[her] duties included problem solving, but not preventing lawsuits. [Kia] has a

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Legal Department that handles legal situations at [Kia].” But of course, no one

contends that Gogel, or anyone else for that matter, can actually prevent an

employee from filing an EEOC charge and subsequent lawsuit if the latter chooses

to do so. Nor does Kia disagree that once an EEOC charge is filed, the legal team

takes the lead in responding to that charge. Yet, that Gogel lacked the power to

prevent an employee from suing and that she did not handle the legal response

once an EEOC charge was actually filed does not mean that she was not expected

to try to handle matters in a way that would resolve the employee’s grievance short

of any such litigation, as all the witnesses testified. And soliciting an employee to

sue the company falls well short of endeavoring to resolve that employee’s

concerns short of litigation. Further, conceding that her job was “to problem-

solve,” Gogel offers no disagreement that encouraging Ledbetter to sue the

company would not have helped Kia solve any potential conflicts it might have had

with Ledbetter.

Gogel notes that the job description for Team Relations manager does not

include a requirement that the manager “prevent lawsuits.” She further averred in

her post-deposition declaration that she interpreted language in the job description

providing that the Team Manager should endeavor to “prevent unwelcomed

activity” as describing union activity, not the “EEO or legal activity.” It is true that

the job description, which is written at a high level of generality, does not expressly

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state that a Team Relations manager should try to prevent lawsuits. Yet, Gogel

acknowledges that it was her duty as Team Relations manager to help Kia resolve

any problems it might have with an employee. Not surprisingly then, and

regardless of what the job description may or may not have covered, the

undisputed testimony indicates that Kia considers a Team Relations manager’s

encouragement of a disgruntled employee to sue the company as inconsistent with

an attempt to resolve the problem in a manner consistent with the company’s best

interests. Nor, as this testimony indicates, does Kia consider a manager’s act of

clandestinely providing that employee with the name of a lawyer to use to sue the

company as conduct satisfying the manager’s responsibility to keep the appropriate

parties informed of the status of an employee’s complaint.22 Instead, as Tyler

testified, it was Kia’s expectation that a Team Relations manager was someone

who would interact with the employees in a manner that would avoid the latter

“going to third parties” and resorting to litigation. Likewise, as discussed

previously, Jackson and Bailey made clear that in soliciting Ledbetter to sue and in

encouraging that effort by providing Ledbetter with the name of the same attorney

22

As Jackson testified, Gogel was “paid to let me know [] if other people are interested

in filing lawsuits. That’s what her job is supposed to be doing. . . .She has an obligation to let me

know [] if she knows someone is going to file a lawsuit against our company. . . .She should let

me know what she knows.”

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with whom Gogel had decided to meet, Gogel’s conduct was inconsistent with her

job responsibilities.

Thus, the pertinent factual inquiry is whether recruiting an employee to sue

the company would have been consistent with the responsibilities entrusted to the

Team Relations manager by Kia. Gogel is notably silent on this point, never

affirmatively denying or otherwise presenting evidence contesting Kia’s position

that such conduct would fundamentally conflict with the expectations that it held

for a manager in that position. In short, the undisputed testimony indicates that the

Team Relations manager acts in contradiction of the responsibilities inherent in

that position if she solicits an employee to sue the company and provides the

employee with the name of an attorney to facilitate that endeavor.

Instead of tackling head-on Kia’s determination that Gogel’s conduct so

conflicted with the responsibilities of her job that it irrevocably undermined the

trust Kia believed it must have in the manager holding this tremendously

significant position, Gogel denies that she ever engaged in such conduct.23 Thus,

23

In support of this contention, Gogel avers that “I did not solicit others to further my

own agenda . . . . I did not encourage others to file a Charge against [Kia]. I did not encourage

others to sue [Kia].” In addition to her own denial of any effort to solicit, recruit, or encourage

Ledbetter to sue, Gogel offered a declaration by Ledbetter, who stated: “Neither [Gogel] nor

[Tyler] told me to file a Charge with the EEOC. I made this decision for myself as a professional

woman. [Gogel] did not solicit me to do anything against [Kia]. [Gogel] did not encourage me

nor solicit me to get an attorney and sue the company or file an EEOC charge . . . . I made the

decision to file an EEOC charge with my attorney, not because [Gogel] told me to. I made the

decision to retain an attorney as well. There was no ‘collusion.’” Ledbetter further denies that

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Gogel essentially argues that even if her recruitment of another employee to sue

the company would have rendered her ineffective in her position and would have

warranted Kia’s loss of confidence in her ability to continue to perform her highly

confidential and sensitive job duties, these reasons cannot justify her termination

because she never in fact solicited Ledbetter to sue the company. But this

argument misapprehends the focus of the inquiry in Title VII cases. As our

precedent makes clear, when assessing whether an employer has properly imposed

an adverse action on an employee based on that employee’s conduct, the question

is not whether the employee actually engaged in the conduct, but instead whether

the employer in good faith believed that the employee had done so. As we have

stated before when a similar argument was made by an employee against whom an

adverse action was taken,

[t]he inquiry . . . centers on the employer’s beliefs, not the employee’s

beliefs and, to be blunt about it, not on reality as it exists outside of

the decision maker’s head. . . . The question is whether

[the] employers were dissatisfied with [the employee] for these or

other non-discriminatory reasons, even if mistakenly or unfairly so, or

instead merely used those [reasons] as cover for discriminating

against her. . . .

In analyzing issues like this one, “we must be careful not to

allow Title VII plaintiffs simply to litigate whether they are, in fact,

good employees.”

she ever told Williams that Gogel was the leader of any effort to file a charge with the EEOC or

that she, Gogel, and Williams were planning to sue the company and had the same attorney.

Ledbetter, however, does not address how she happened to retain the same attorney as did Gogel

and Tyler.

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Alvarez, 610 F.3d at 1266 (internal citations omitted) (quoting Rojas v. Florida,

285 F.3d 1339, 1342 (11th Cir. 2002)).

The relevant inquiry is therefore whether the employer in good faith

believed that the employee had engaged in the conduct that led the employer to

discipline the employee. See Elrod, 939 F.2d at 1470. Thus,

[w]hen an employer is told of improper conduct at its workplace, the

employer can lawfully ask: is the accusation true? When the resulting

employer’s investigation . . . produces contradictory accounts of

significant historical events, the employer can lawfully make a choice

between the conflicting versions—that is, to accept one as true and to

reject one as fictitious—at least, as long as the choice is an honest

choice.

Total Sys. Servs., 221 F.3d at 1176. To be clear,

[t]he role of this Court is to prevent unlawful [Title VII] practices, not

to act as a super personnel department that second-guesses employers’

business judgments. Our sole concern is whether unlawful

discriminatory [or retaliatory] animus motivates a challenged

employment decision. Whether [an employee’s conduct] was

insubordinate is not an issue for this Court to referee.

Wilson, 376 F.3d at 1092 (internal citations and quotation marks omitted). “An

employer ‘may fire an employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action is not for a

discriminatory [or retaliatory] reason.’” Damon v. Fleming Supermarkets of Fla.,

Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (emphasis omitted) (quoting Jones

v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1324 n.16 (11th Cir. 1998)); see

also Elrod, 939 F.2d at 1470 (“Federal courts ‘do not sit as a super-personnel

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department that reexamines an entity’s business decisions. No matter how

medieval a firm’s practices, no matter how high-handed its decisional process, no

matter how mistaken the firm’s managers, [we] do[] not interfere. Rather, our

inquiry is limited to whether the employer gave an honest explanation of its

behavior.’” (quoting Mechnig, 864 F.2d at 1365)).

There is no evidence in this record to rebut Jackson’s repeated and insistent

testimony that he believed Gogel had recruited Ledbetter to sue the company. He

saw that Ledbetter’s EEOC charge had been faxed from the same law firm that

Gogel was using in pursuing her own recently filed EEOC charge. Given the large

number of lawyers available, Jackson was understandably skeptical that Ledbetter

would have randomly picked the same Atlanta law firm as did Gogel and Tyler

without some involvement from the latter. Indeed, Jackson immediately contacted

his Korean counterparts, including the president of Kia, to alert them to his

suspicion that Gogel was “recruiting” other employees to sue.

In fact, Gogel finally acknowledged during this litigation that she had

provided Ledbetter with the name of the attorney with whom Gogel stated she

planned to meet regarding her own action against Kia. Gogel argues that we

cannot consider this admission in assessing the genuineness of Jackson’s belief

that Gogel had so acted because Gogel had not revealed to Jackson, prior to his

decision to fire her, that she had, indeed, provided Ledbetter with the name of an

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attorney to represent her. For sure, Gogel never revealed this important fact to

Jackson when he called her in to determine whether she had any involvement in

Ledbetter’s decision to sue. Nor could Jackson know when he fired Gogel that she

would later admit to this conduct. This fact, however, is not helpful to Gogel.

What matters in this inquiry is what the employer in good faith believes the

employee to have done, not whether the employee actually engaged in the

particular conduct. See Elrod, 939 F.2d at 1470. Yet, the fact that Gogel has now

made a concession that tends to confirm the accuracy of Jackson’s beliefs is hardly

a fact that serves in any way to undermine the genuineness of those beliefs. And

the genuineness of those beliefs is further confirmed by additional information that

Jackson obtained after receiving Ledbetter’s EEOC charge.

Specifically, after Jackson had received Ledbetter’s EEOC charge, Williams

and Grimes, assistant managers of Team Relations, met with Jackson and informed

him of a large number of long, closed-door meetings between Gogel and Ledbetter

in the preceding weeks—meetings that seemed out of the ordinary not only to

Williams and Grimes, but also to Jackson.24 Even more significantly, Williams

24

Citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), Gogel argues

that we should disregard any testimony from Jackson, Williams, or Grimes in considering

whether to affirm the district court’s decision to grant summary judgment because these men

were arguably “interested witnesses.” We rejected a virtually identical argument in Kidd v.

Mando Am. Corp., 731 F.3d 1196, 1205 n.14 (11th Cir. 2013). Other circuits have also rejected

any reading of Reeves as precluding summary judgment where the movant relies on testimony of

interested witnesses. See, e.g., LaFrenier v. Kinirey, 550 F.3d 166, 168 (1st Cir. 2008); Lauren

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reported that Ledbetter had confided in him that she, Gogel, and Tyler were

planning to sue the company, that they were going to use the same lawyer, and that

Gogel was the ringleader. As noted, Jackson subsequently met with Gogel who, in

denying any collusion with Ledbetter, also denied having had any significant

recent meetings with Ledbetter, contrary to the reports of Williams and Grimes.

Based on all of this information, Jackson concluded that Gogel had in fact

encouraged and recruited Ledbetter to sue Kia. 25 As a result, Jackson decided that

he had “no alternative but to discharge” Gogel, as he had lost both confidence in

Gogel’s loyalty and the trust that was necessary for her to function in her position

as Team Relations manager. Gogel has offered no evidence that would call into

question the genuineness of the beliefs that led Jackson to this conclusion.

W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271–72 (3d Cir. 2007); Stratienko v. Cordis

Corp., 429 F.3d 592, 597–98 (6th Cir. 2005); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

898 (5th Cir. 2002); Traylor v. Brown, 295 F.3d 783, 790–91 (7th Cir. 2002).

25

Our dissenting colleague, Judge Rosenbaum, argues that Jackson should have done a

more thorough investigation before reaching this conclusion. But as we have previously noted

when dealing with a similar objection to an employer’s personnel action based on the employer’s

good faith belief: “[I]n carrying out its business and in making business decisions (including

personnel decisions), the employer can lawfully act on a level of certainty that might not be

enough in a court of law. In the workaday world, not every personnel decision involving a false

statement (or a cover-up) has to be treated as something like a trial for perjury. Therefore, an

employer, in these situations is entitled to rely on its good faith belief about falsity, concealment,

and so forth . . . . ‘Pretext is not demonstrated by showing simply that the employer was

mistaken.’” Total Systems Servs., 221 F.3d at 1176. Here, Gogel has offered no evidence from

which one could reasonably infer that Jackson did not genuinely believe that Gogel had recruited

Ledbetter to sue the company and had provided her with the name of a lawyer to use in that

endeavor.

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In summary, an employee’s oppositional conduct under Title VII is not

protected if the means by which the employee has chosen to express her opposition

so interferes with the performance of her job that it renders her ineffective in the

position for which she is employed. Kia held a good faith belief that Gogel had

abandoned her responsibility to try to resolve an employee’s dispute without

litigation when she instead actively solicited a complaining employee to sue the

company and provided the employee with the name of an attorney to use. Once

aware of Gogel’s conduct, Kia determined it could no longer keep her as its

Manager of Team Relations, the department to which unhappy employees were

sent to air their complaints. In other words, Kia could no longer trust Gogel to do

her job.

Stated another way, Kia did not fire Gogel because she opposed some of its

employment practices. Gogel had expressed her opposition to various employment

practices repeatedly throughout her tenure through internal complaints to

management, with no adverse action taken against her for that opposition. Rather,

Kia fired Gogel because, by recruiting Ledbetter to sue the company, Gogel chose

to act in a way that conflicted with the core objectives of her sensitive and highly

important position. Her actions having rendered her entirely ineffective as

manager of the Team Relations department, the manner of her oppositional

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conduct with respect to Ledbetter was necessarily unreasonable, and the conduct

was not protected under Title VII.

III. CONCLUSION

For all the above reasons, Gogel’s retaliation claim fails, and we affirm the

district court’s grant of summary judgment to Kia as to all claims.

AFFIRMED.

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WILLIAM PRYOR, Chief Judge, concurring:

I join the majority opinion in full. I write separately to respond to the

suggestion of my dissenting colleagues that a difference of opinion among judges

about whether to affirm a summary judgment reveals the presence of a jury

question that precludes summary judgment. Because 13 appellate judges are

“divided in their views” on whether the district court correctly granted summary

judgment in this employment-discrimination suit, Judge Martin’s dissent suggests

that the absence of a jury question is “improbable.” Martin Dissenting Op. at 71.

Of course, it should go without saying that counting judicial noses cannot tell us

whether a genuine dispute of material fact exists. See Fed. R. Civ. P. 56(a). But if

nose counting is relevant, the dissenters fail to mention that nine of the 14 judges

to consider the issue—including the district judge who granted summary

judgment—concluded there was no jury question. Only five think otherwise. So

instead of making the absence of a jury question “improbable,” Martin Dissenting

Op. at 71 (emphasis added), judicial nose counting suggests the opposite. See

Probable, Webster’s New International Dictionary (2d ed. 1959) (“Having more

evidence for than against.”). And more importantly, so does legal analysis. As the

majority opinion explains, faithful application of our precedent leaves no doubt

that the district court correctly granted summary judgment for the employer.

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JORDAN, Circuit Judge, concurring in the judgment:

I agree with much of what Judges Martin and Rosenbaum have written in their

dissents. The majority, for example, does not take all of the facts in the light most

favorable to Ms. Gogel, fails to explain where in the McDonnell Douglas framework

it is conducting its protected conduct analysis, and relies too heavily on cases that

arose in procedurally different postures. Despite these concerns with aspects of the

majority opinion, I concur in the judgment.

Ms. Gogel, who was the manager of team relations at Kia, has always denied

encouraging or soliciting other employees to sue the company. See, e.g., D.E. 101-

1 at 14–15 (Ms. Gogel’s declaration). In her deposition, Ms. Gogel testified that

when Mr. Jackson accused her of “colluding” with Ms. Ledbetter against Kia, she

denied the accusation and provided proof that her meetings with Ms. Ledbetter were

for legitimate work-related matters. See D.E. 117 at 66. For her part, Ms. Ledbetter

similarly denied that Ms. Gogel encouraged her to file an EEOC claim against Kia.

See D.E. 101-2 at 3–4 (Ms. Ledbetter’s declaration).

Because we are at the summary judgment stage, and must consider the

evidence in the light most favorable to Ms. Gogel, we have to assume that she did

not encourage or solicit others to take legal action against Kia. As a result, there is

no need to consider whether, as an abstract matter, any actual solicitation by Ms.

Gogel would constitute protected conduct under Title VII.

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Taking her version of events as true, Ms. Gogel established a prima facie case

on her opposition and retaliation claims. But Kia presented a non-discriminatory

reason for its termination decision—that it believed that Ms. Gogel recruited,

encouraged, or solicited Ms. Ledbetter (and maybe Mr. Tyler) to sue the company.

On this record, I do not believe Ms. Gogel created a jury issue as to pretext under

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143–46 (2000).

Kia had evidence that Ms. Gogel, Ms. Ledbetter, and Mr. Tyler were being

represented by the same law firm. It also had the statements of another managerial

employee about what Ms. Gogel was supposedly doing. Mr. Williams, an assistant

manager working under Ms. Gogel, informed Kia that Ms. Ledbetter had told him

(a) that she, Mr. Tyler, and Ms. Gogel were planning to sue the company using the

same law firm; (b) that the three of them were “talking together and working

together;” and (c) that Ms. Gogel was the ringleader. See D.E. 123 at 52, 79.

Ms. Gogel denied having significant interactions with Ms. Ledbetter when

questioned, but given the circumstances Kia was not required to accept her denials.

We have long said that “[t]he inquiry into pretext centers upon the employer’s

beliefs, and not the employee’s own perceptions of [her] performance.” Holifield v.

Reno, 115 F.3d 1555, 1565 (11th Cir. 1997). Indeed, we have held that where an

employer relies on a report of an employee’s alleged wrongdoing, the question is not

whether the report is accurate, but rather whether the employer “reasonably

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believed” that it was. See Hawkins v. Ceco Corp., 883 F.2d 977, 980 n.2 (11th Cir.

1989). Based on the information it had, Kia reasonably believed that Ms. Gogel had

solicited other employees to sue the company, and that this conduct by a managerial

employee was an unreasonable way of demonstrating her opposition. See generally

Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989)

(“some otherwise protected conduct may be so disruptive or inappropriate as to fall

outside Title VII’s protection”).

With respect to retaliation, sometimes temporal proximity between the

protected activity and adverse action is enough to take a case to the jury. But even

in cases where the plaintiff has established temporal proximity, the employer can

rebut inferences of improper motive by articulating non-discriminatory reasons for

the adverse action. Given cases like Holifield and Hawkins, I think Kia has done

that here. See Walden v. Centers for Disease Control and Prevention, 669 F.3d

1277, 1290 (11th Cir. 2012) (holding, in a Title VII case, that a temporal proximity

of three weeks was not enough to overcome evidence showing that the employee

was removed for a legitimate reason). Cf. Wascura v. City of S. Miami, 257 F.3d

1238, 1247 (11th Cir. 2001) (holding, in an ADA case, that where ample legitimate

reasons supported a termination decision, temporal proximity alone was insufficient

to meet the plaintiff’s burden of showing that the employer’s articulated reasons for

termination was pretextual).

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I recognize that an employee can sometimes create an issue of fact as to

pretext by showing that the employer’s purported non-discriminatory reason is

simply untrue. See Reeves, 530 U.S. at 143–46. In my view, however, Kia

reasonably believed that Ms. Gogel had engaged in soliciting lawsuits by other

employees based on Mr. Williams’ statements about what Ms. Ledbetter had said

and the evidence that Ms. Gogel, Ms. Ledbetter, and Mr. Tyler were being

represented by the same law firm. Accepting as true her denials of improper

conduct, Ms. Gogel has not presented sufficient evidence to permit a jury to find that

Kia’s proffered reason for her termination is “unworthy of credence.” Id. at 143

(internal citation and quotation marks omitted).

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WILSON, Circuit Judge, concurring in part and dissenting in part:

Had Andrea Gogel not filed her own discrimination claim, I would join the

majority’s opinion in full. Indeed, I concur with the majority’s view that Title VII

does not protect an employee’s opposition conduct if the conduct so interferes with

the performance of her job duties that it renders her ineffective for the position for

which she was employed. Kia says it fired Gogel because she encouraged other

employees, including Diana Ledbetter, to file a charge of discrimination against the

company, which was inconsistent with her responsibility as a Human Resource

employee to protect the company from liability. Title VII’s opposition clause does

not protect such conduct. And if that were her only claim, Gogel would rightfully

lose at summary judgment.

But that is not her only claim; she also brings a claim under Title VII’s

participation clause. And there is more than enough circumstantial evidence in this

record that a jury could reasonably rely upon to conclude that Gogel was fired in

retaliation for filing her own charge of discrimination, which is protected activity

under Title VII’s participation clause, separate and apart from her conduct under

the opposition clause. Summary judgment on that claim should have been denied.

As Gogel stated in her Amended Complaint, “[Kia’s] retaliation against

[her] was on account of her participation in the [Equal Employment Opportunity

Commission (EEOC)] charge filing process and because of her opposition to

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discrimination . . . .” She further alleged that, “[b]ut for her act of filing an EEOC

charge, she would not have been terminated.”

As we have stated, Title VII prohibits an employer from retaliating against

an employee “because the employee has opposed any unlawful employment

practice” (the opposition clause), or “because of participation in a Title VII

investigation or hearing” (the participation clause).” Furcron v. Mail Ctrs. Plus,

LLC, 843 F.3d 1295, 1310 (11th Cir. 2016) (alterations accepted); accord 42

U.S.C. § 2000e-3(a). Indeed, § 2000e-3(a) explicitly protects someone, such as

Gogel, who “has made a charge.” Consequently, when Gogel filed her charge of

discrimination with the EEOC on November 10, 2010, she engaged in protected

conduct under the participation clause, which provides near limitless protection

against retaliatory acts. See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353

(11th Cir. 1999) (holding that § 2000e-3(a)’s “participated in any manner” clause

includes and protects an employee’s participation in an employer’s post-charge

internal investigation, a form of participation more indirect than Gogel’s).

This is the relevant timeline for Gogel’s participation-clause claim: Gogel

filed her charge of discrimination with the EEOC alleging sex- and national-origin

discrimination on November 10, 2010. Kia received notice of it on November 22,

2010. On December 3, 2010, Gogel was placed on administrative leave pending

her signature on an “acknowledgement” document created by Kia, which she

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signed on December 6, 2010. Curiously, Kia gave her a $12,000 bonus check on

December 22, 2010, and, according to Gogel, told her “she was doing a good job,”

which a factfinder could interpret various ways. But then she was admonished

about issues related to Diana Ledbetter (which the majority details), and she

received her termination letter on January 21, 2011. On February 8, 2011, she

filed the second charge with the EEOC based on retaliation.

Absent direct evidence of discrimination, we analyze claims for

discrimination under the framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) and subsequently modified in Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). See also Standard v. A.B.E.L.

Servs., Inc., 161 F.3d 1318, 1331–32 (11th Cir. 1998). “Under this framework, a

plaintiff alleging retaliation must first establish a prima facie case by showing that:

(1) [s]he engaged in a statutorily protected activity; (2) [s]he suffered an adverse

employment action; and (3) [s]he established a causal link between the protected

activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th

Cir. 2009). “Once a plaintiff establishes a prima facie case of retaliation, the

burden of production shifts to the defendant to rebut the presumption by

articulating a legitimate, non-discriminatory reason for the adverse employment

action.” Id. at 1308. “After the defendant makes this showing, the plaintiff has a

full and fair opportunity to demonstrate that the defendant’s proffered reason was

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merely a pretext to mask discriminatory actions.” Id. As we have held,

“[d]emonstrating a prima facie case is not onerous; it requires only that the plaintiff

establish facts adequate to permit an inference of discrimination [or retaliation].”

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam); see also

Burdine, 450 U.S. at 253–54.

Kia concedes that Gogel can satisfy the elements of a prima facie case of

retaliation for her termination. In its reply in support of its motion for summary

judgment, Kia stated that it “does not contest that [Gogel’s] filing of her personal

EEOC charge on November 3, 2010 was protected activity, and for the purpose of

summary judgment, assumes that [she] has made out the minimal requirements of a

prima face case.”

In any event, a prima facie case is established here: (1) Gogel filed her

charge; (2) she was fired; and (3) these events were separated by two months. See

Bryant, 575 F.3d at 1307–08. “The burden of causation can be met by showing

close temporal proximity between the statutorily protected activity and the adverse

employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007) (per curiam). We construe the causal-link element broadly; “a plaintiff

merely has to prove that the protected activity and the negative employment action

are not completely unrelated.” Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460

(11th Cir. 1998). In Olmstead, we determined that the plaintiff’s termination was

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casually related to his complaints of racial discrimination and was appropriately

submitted to the jury, even though the period between his complaint and

termination was about five- to six-months apart. Id. at 1459–61. In Gogel’s case,

the filing of the charge and the date of termination were only two months apart.

The burden then shifts to Kia to articulate a legitimate reason for Gogel’s

termination. See Bryant, 575 F.3d at 1308. Kia says Gogel was terminated

because the company lost confidence in her ability to perform her job duties after

an investigation showed that she had solicited Ledbetter to file a charge against

Kia, which was in violation of the agreement they made her sign on December 6,

2010. That is a legitimate reason. Kia has thus discharged its burden of

production, and the burden shifts back to Gogel to show that this assertion is

merely a pretext for discrimination and retaliation. See id.

To survive summary judgment Gogel must point to sufficient evidence to

create a genuine issue of material fact regarding whether the reason Kia gives for

her termination is merely a pretext for retaliation and discrimination. See id. Her

evidence must reveal “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in [Kia’s] proffered legitimate reasons for its

action that a reasonable factfinder could find them unworthy of credence.” Combs

v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). The reason for this

framework is obvious—what sophisticated employer, after 54 years of Title VII

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jurisprudence, would state in a termination letter that the employee is fired for

bringing a discrimination complaint against the company? So, Gogel can create an

issue of fact at the pretext stage by (1) presenting evidence that Kia’s proffered

reason is not worthy of belief; or (2) presenting evidence that retaliation was, in

fact, Kia’s real reason. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000). Evidence establishing the prima facie case and any inferences

drawn therefrom may also be considered when determining whether pretext has

been shown. Id. at 143; see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993).

Gogel’s evidence in support of pretext is more than sufficient to defeat

summary judgment. A Title VII plaintiff can meet the pretext burden by showing

temporal proximity between her protected conduct and the adverse employment

action. Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.

2000). Only weeks after Gogel filed her charge with the EEOC, she was

threatened with the loss of her job and suspended until she signed a document

promising to forego her rights to support her charge. Less than two weeks later,

she was fired. In Thomas, we concluded that a three- to four-month period

between when an employee filed a sexual-harassment complaint and when she was

fired was not enough, on its own, to establish a causal connection. 506 F.3d at

1364. Here, the temporal proximity is much closer, as Gogel was terminated just

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two months after the date Kia received notice of her charge. That is surely close

enough that a factfinder could infer retaliation.

And unlike the plaintiff in Thomas, Gogel points to additional evidence

tending to show causation. Before the district court, Gogel argued that certain “me

too” evidence demonstrated that Kia retaliated against other employees who made

internal complaints and filed EEOC charges. Gogel pointed to evidence regarding

two incidents related to her case. The first was that Robert Tyler, another Human

Resources employee who lodged an internal discrimination complaint and filed an

EEOC charge, testified that he was terminated on January 6, 2011, shortly before

Gogel was terminated. And the second was that Ledbetter attested that Kia

coerced her to drop her EEOC charge. We have said before that “me too” evidence

can be used “to prove the intent of [an employer] to discriminate and retaliate.”

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008).

Moreover, Gogel testified at her deposition that she did not encourage,

solicit, or coerce Ledbetter to file a charge of discrimination. And Ledbetter

attested that she decided on her own to file her EEOC charge, and that Gogel “did

not encourage [her] nor solicit [her] to get an attorney and sue the company or file

an EEOC Charge.” Ledbetter also attested that there was no collusion. More

specifically, she declared that she “never told Arthur Williams that [Gogel] was the

‘leader’ of [her] and [Tyler] in filing a Charge with the EEOC” or that “all three of

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[them] were going to sue [Kia] and had the same attorney.” While this testimony

matters little in the opposition-clause context, it matters in the participation-clause

context. If true, it could support that Kia’s belief that such conduct occurred was

unreasonable. In any event, Kia is entitled to impeach Gogel’s credibility about

these crucial facts on cross-examination at a trial. Credibility evaluations are

within the province of the jury, not this court.

Viewing the evidence in this record in the light most favorable to Gogel,

which we are obligated to do, there is a genuine issue of fact about whether Kia

terminated Gogel because she filed a charge of discrimination against the

company. Unfortunately, the majority does not view the evidence in the light most

favorable to Gogel. Instead, it adopts the role of factfinder, ignores Gogel’s

evidence, and tips the scales in Kia’s favor.

Simply put, a reasonable jury could conclude that Kia’s reason for

terminating Gogel—that she counseled Diana Ledbetter to file an EEOC charge—

was pretextual. Although her conduct may not be protected under Title VII’s

opposition clause, the charge of discrimination that she filed on her own behalf

constitutes protected conduct under Title VII’s participation clause. The case

should have gone to the jury on that basis.

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MARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR,

Circuit Judges, dissenting:

Andrea Gogel was fired after she challenged gender discrimination at Kia

Motors Manufacturing, Georgia (“Kia”). Instead of allowing a jury to decide the

facts in dispute about Kia’s true motivations for firing Ms. Gogel, this Court has

now dedicated nearly four years and the extensive attention of 13 judges, divided

in their views, to reach the improbable conclusion that there is no such dispute.

The result is a majority opinion that incorrectly applies the law governing

opposition conduct protected by Title VII; glosses over disputes of fact about Ms.

Gogel’s core job responsibilities; and fails to consider evidence suggesting that the

reasons Kia gave for Ms. Gogel’s dismissal were a pretext for unlawful retaliation.

The six separate opinions that make up this en banc ruling on Ms. Gogel’s case,

written by as many judges, paint a rich picture of the many triable issues of fact

about whether Kia fired her because she engaged in activities protected by Title

VII. I would reverse the grant of summary judgment to Kia on Ms. Gogel’s claim

for unlawful retaliation. I dissent from the majority’s judgment in favor of Kia

here.

I.

I begin by setting forth the standard for applying the burden-shifting

framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.

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Ct. 1817 (1973). McDonnell Douglas imposes a three-step framework for

evaluating workplace discrimination claims based on circumstantial evidence.

First, the employee must show a prima facie case of discrimination. Then, the

employer must respond by articulating a legitimate, nondiscriminatory reason for

its adverse employment action. Finally, the employee must show that the reason

given by the employer was “mere pretext.” Quigg v. Thomas Cnty. Sch. Dist., 814

F.3d 1227, 1237 (11th Cir. 2016). This Court has relied on this familiar and well-

worn analytic tool for well over four decades. Its purpose is to “progressively . . .

sharpen the inquiry into the elusive factual question of intentional discrimination”

and thereby “help[] . . . determine whether the litigants have created an issue of

fact to be decided by the jury.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 255 n.8, 101 S. Ct. 1089, 1094 n.8 (1981).

The central question of Ms. Gogel’s case is the nature of her opposition

conduct and whether it was protected by Title VII. In most circumstances, firing

an employee for assisting a coworker with filing an Equal Employment

Opportunity Commission (“EEOC”) complaint—the primary basis of Ms. Gogel’s

dismissal—amounts to retaliation for protected opposition conduct. See Hobgood

v. Ill. Gaming Bd., 731 F.3d 635, 642–43 (7th Cir. 2013); see also Rosser v.

Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221, 223 (5th Cir.

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1980). 1 But of course the protections of Title VII’s opposition clause are not

absolute. To qualify for protection, “the manner in which an employee expresses

her opposition to an allegedly discriminatory employment practice must be

reasonable.” Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d 397, 401 (11th Cir.

1989) (per curiam). Our precedent has recognized two principal ways in which an

employee’s opposition conduct may be unreasonable and thus fall outside of the

protection of the statute: (1) if that conduct is highly disruptive, see id. at 400-01,

or (2) if that conduct “so interferes with the performance of [the employee’s] job

that it renders [her] ineffective in the position for which [s]he was employed,”

Rosser, 616 F.2d at 223. Whether opposition activity was so unreasonable as to

fall outside the protection of the statute is a “case by case” determination made by

“balancing the purpose of the statute and the need to protect individuals asserting

their rights thereunder against an employer’s legitimate demands for loyalty,

cooperation and a generally productive work environment.” Rollins, 868 F.2d at

401.

Our precedent is clear that the question of whether opposition conduct falls

under the protections of Title VII should, at the summary judgment stage, be

evaluated within the three-step McDonnell Douglas burden-shifting framework,

1

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981. Id. at 1209.

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rather than under the “clearly erroneous” standard applied following an

employment discrimination trial. Compare Payne v. McLemore’s Wholesale &

Retail Stores, 654 F.2d 1130, 1144 (5th Cir. Unit A Sept. 1981) (applying

McDonnell Douglas at summary judgment) with Jones v. Flagship Int’l, 793 F.2d

714 (5th Cir. 1986) (explaining that district court findings would not be reversed

unless they were clearly erroneous).

A. The majority improperly relies on precedent governing appellate

review after trial.

The three McDonnell Douglas steps are designed to flush out proof of an

employer’s “single, true reason for an adverse action.” Quigg, 814 F.3d at 1237

(quotation marks omitted). However, the majority opinion misapplies the

McDonnell Douglas burden shifting process because it relies on our Circuit

precedent governing the review of trials conducted in employment cases. We

should instead abide by the precedent of our Circuit that governs how employment

cases are decided at the summary judgment stage.

In today’s ruling against Ms. Gogel, the majority analogizes her case to

cases in which the suing employee received a trial: Jones v. Flagship International,

793 F.2d 714, and Hamm v. Members of the Board of Regents, 708 F.2d 647 (11th

Cir. 1983). See Maj. Op. at 30–33. Of course, a different standard of review

applies to appeals from decisions made after trial. And Ms. Gogel never got a trial.

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The majority says that Jones is similar to Ms. Gogel’s case and recites the

Fifth Circuit’s conclusion that “given Jones’s particular job responsibilities, her

solicitation of others to sue the company was not protected conduct for purposes of

a retaliation claim.” Maj. Op. at 33. However, the majority opinion relies on

Jones even though the Fifth Circuit arrived at this conclusion based on the record

from a three-day trial, on an appeal of the District Court’s entry of a judgment after

that trial. Jones, 793 F.2d at 718. Beyond that, in Jones, the Fifth Circuit was

reviewing a District Court finding (again, after trial) that there was “not the

slightest hint that race was even a factor in any of Flagship’s employment

decisions regarding Jones.” Id. And the Fifth Circuit plainly stated that it would

not reverse the District Court’s fact finding on this point unless it was “clearly

erroneous.” Id. Nothing in the majority’s opinion here, or anything else I am

aware of, suggests that “clearly erroneous” is the proper standard for reviewing the

District Court’s grant of summary judgment to Kia here. Rather, we review the

grant of summary judgment de novo. See Raney v. Vinson Guard Serv., Inc., 120

F.3d 1192, 1196 (11th Cir. 1997). Ms. Gogel never got a trial, and no court or jury

has ever decided the facts of her dispute with Kia. The majority was mistaken

when it relied on Jones’s “clearly erroneous” review of a District Court’s fact

finding in deciding Ms. Gogel’s case.

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The majority makes the same mistake when it points to Hamm. In doing so

it relies on this court’s affirmance of a fact-based ruling, made after a trial, to

support its conclusion that Ms. Gogel is not entitled to a trial here. Phyllis Hamm,

like Benita Jones in her Fifth Circuit case, appealed (among other things) the

District Court’s dismissal of her claims against her employer after the close of her

case at trial and pursuant to Federal Rule of Civil Procedure 41(b). Hamm, 708

F.2d at 649. The Hamm panel reviewed the District Court’s findings of fact in

support of this dismissal subject to “the clearly erroneous standard of review.” Id.

at 650. Here again, the majority opinion relies on a decision applying a standard of

review that is not the proper one for evaluating Ms. Gogel’s case.

B. When the majority does rely on this court’s precedent governing the

application of the McDonnell Douglas framework at the summary

judgment stage, it does not faithfully apply that precedent.

And when the majority did look to our Circuit precedent governing summary

judgment rulings in employment cases, it mistakenly applies that precedent as well.

When making her prima facie case at the first step in the McDonnell Douglas

framework, the employee is not charged with showing that her opposition conduct

was reasonable. See Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716

(11th Cir. 2002) (holding that, in order to show a causal connection between

protected conduct and retaliation, a plaintiff need only show “that the decision-

makers were aware of the protected conduct, and that the protected activity and the

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adverse actions were not wholly unrelated.”). Once the employee successfully

makes her prima facie showing, it falls to the employer to explain its actions. See

Raney, 120 F.3d at 1196. The employer can meet its burden of showing a

legitimate, nondiscriminatory reason for the adverse employment action by

producing evidence that the employee’s conduct fell outside the protection of Title

VII. See Rollins, 868 F.2d at 401. Then, the plaintiff may, in turn, rebut this

evidence by showing that the employer’s reason was merely a pretext for unlawful

retaliation. See Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1036

(5th Cir. 1980).

When discussing Ms. Gogel’s retaliation claim based on her assistance to

Ms. Ledbetter, the majority does not clearly or consistently apply the McDonnell

Douglas framework. Instead, the majority opinion winds its way through the

framework without referencing which step of the framework it is analyzing. But a

careful application of the framework is essential to determining whether there is a

dispute of fact at the summary judgment stage. Because the majority opinion lacks

clarity in its application of the framework, I fear it will result in mistakes in future

employment discrimination decisions.

As one example, the majority simply accepts Kia’s invocation of the

importance of “loyalty” as the last word in finding her conduct unreasonable as a

matter of law. Maj. Op. at 55–56. In doing so, it overlooks the fact that Ms.

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Gogel’s conduct, the nature of her job, and Kia’s motivations for terminating her

were all in dispute. These are precisely the kinds of factual questions that the

McDonnell Douglas framework was designed to resolve, because they go directly

to whether Kia’s reasons for terminating Ms. Gogel were pretextual. The Supreme

Court has explained that McDonnel Douglas serves “simultaneously to meet the

plaintiff’s prima facie case by presenting a legitimate reason for the action and to

frame the factual issue with sufficient clarity so that the plaintiff will have a full

and fair opportunity to demonstrate pretext.” Burdine, 450 U.S. at 255–56, 101 S.

Ct. at 1095. The majority opinion ignores these factual disputes. As a result, Ms.

Gogel never got her “full and fair opportunity to demonstrate pretext.” Id.

II.

In this section, I will properly apply the McDonnell Douglas framework,

showing how it compels the holding that Ms. Gogel came forward with sufficient

evidence to create a triable issue of fact about Kia’s motivations for firing her.

This record demonstrates that Ms. Gogel successfully made a prima facie showing

of unlawful retaliation that Kia rebutted by coming forward with a permissible,

non-retaliatory reason for her dismissal. My view of the record also shows that at

the third stage of the McDonnell Douglas analysis, Ms. Gogel produced sufficient

evidence that Kia’s reason for her dismissal was pretextual, such that it is error for

the majority to grant summary judgment to Kia here.

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A. Ms. Gogel made a prima facie showing of retaliation, which Kia

successfully rebutted.

Ms. Gogel pointed to sufficient record evidence to support a prima facie case

of retaliation against her. We know that the burden of making a prima facie case

“is not onerous.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1094. Rather, at the

prima facie stage a plaintiff need only “offer evidence that creates a valid inference

that her employer’s conduct was in fact illegal[].” Lewis v. City of Union City,

918 F.3d 1213, 1222 n.8 (11th Cir. 2019) (en banc).

No one disputes that one reason Kia gave for firing Ms. Gogel was that she

assisted Ms. Ledbetter in filing an EEOC complaint.2 Kia stated as much in its

termination letter to Ms. Gogel, which said she was being fired in part because she

“encouraged or even solicited the filing of [an EEOC charge].” And Title VII

prohibits subjecting an employee to an adverse employment action “because [s]he

has opposed any practice made an unlawful employment practice by this

subchapter, or because [s]he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing under this subchapter.”

2

While Ms. Gogel disputes that she actually encouraged Ms. Ledbetter to seek outside

counsel or file a discrimination complaint, the issue is not whether she in fact engaged in this

conduct but whether Kia “in good faith believed” in the factual basis of its adverse employment

action. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quotation marks

omitted); see also Heffernan v. City of Paterson, N.J., 578 U.S. ___, 136 S. Ct. 1412, 1418

(2016) (holding that an employee could challenge an employer’s retaliation for protected First

Amendment conduct even if that retaliation was based on the employer’s factual mistake about

the employee’s behavior).

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42 U.S.C. § 2000e-3(a). Assisting fellow employees in filing EEOC charges is

squarely protected activity. See EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174

(11th Cir. 2000). 3 While Kia argues its true concern was that the assistance Ms.

Gogel provided Ms. Ledbetter made Ms. Gogel ineffective in her job, that is a

question for the second stage of the McDonnell Douglas framework. At the prima

facie stage, Ms. Gogel’s termination letter is enough to show a causal connection

between protected conduct (assisting Ms. Ledbetter) and adverse employment

consequences (Ms. Gogel’s discharge). See Shannon, 292 F.3d at 716.

Kia, in turn, met its burden of rebutting Ms. Gogel’s prima facie case by

producing evidence that it suspended and fired her for a legitimate,

nondiscriminatory reason. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1265 (11th Cir. 2010). The employer’s burden, at this stage, is only “one

of production—not persuasion” and it “need not persuade the court that it

was actually motivated by the proffered reason.” Kidd v. Mando Am. Corp., 731

F.3d 1196, 1205 (11th Cir. 2013) (alteration adopted) (quotation marks omitted).

3

The majority acknowledges that a firing on these grounds would normally give rise to a

prima facie case of unlawful retaliation. Indeed, Kia conceded at oral argument that Title VII

generally prohibits firing an employee, other than a human resources employee, who engaged in

this conduct. Oral Argument at 32:57–33:38. But the majority distinguishes Ms. Gogel’s case

based on Kia’s asserted concern that her conduct rendered her ineffective in her role as Team

Relations manager. This fact would be appropriate to rely upon if it had ever been found by the

trier of fact, like in Hamm. Here, though, there remain significant factual disputes over both the

propriety of Ms. Gogel’s helping her co-worker with her EEOC charge, as well as Gogel’s

effectiveness as a manager.

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And the majority is correct in saying that, in some instances, an employee’s

opposition conduct may “‘so interfere[] with the performance’ of her job duties

‘that it renders her ineffective in the position for which she was employed’” such

that it is therefore unreasonable and not protected by Title VII. Maj. Op. at 29

(alterations adopted) (quoting Rosser, 616 F.2d at 223).

Here, Kia recognizes that the reason it fired Ms. Gogel was retaliation for

protected conduct, but it says that because the conduct conflicted with Ms. Gogel’s

core job responsibilities it was therefore unreasonable. The record before us

supports a holding that Kia met its burden to put forward a legitimate business

reason for firing Ms. Gogel. Deposition testimony and Ms. Gogel’s termination

letter support Kia’s claim it terminated Gogel because management believed her to

be actively recruiting other employees to file lawsuits against Kia. Kia also

produced evidence that it believed this conduct to be in direct conflict with Ms.

Gogel’s job responsibilities. These responsibilities, according to Kia, included

working to ensure that team members did not involve third parties—by way of

litigation, government organizations, and labor unions—in the resolution of

workplace disputes. I think this was sufficient for Kia to meet its burden of

showing a legitimate, non-retaliatory reason for dismissing Ms. Gogel. But I also

believe there remain factual disputes about whether this reason was pretextual.

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B. Ms. Gogel presented sufficient evidence that Kia’s reasons for

dismissing her were pretextual.

Having addressed the first two steps of the McDonnell Douglas framework,

I will now outline the factual disputes raised by Ms. Gogel in her assertion that

Kia’s reasons for her firing were a pretext for its discrimination against her. First,

there are factual disputes over the nature of her core job responsibilities and

whether her conduct rendered her unable to properly perform them. These disputes

go to whether Ms. Gogel’s activities were “reasonable under the circumstances and

were warranted by [her] employer’s conduct.” Payne, 654 F.2d at 1145. Second,

there is a dispute over whether Ms. Gogel’s inability to perform her core job

responsibilities was the actual reason for her dismissal. This goes to whether the

reason given for her dismissal was a pretext for unlawful retaliation. Lewis, 918

F.3d at 1221. My review shows that Ms. Gogel produced sufficient evidence to

create a triable issue of fact on both of these questions at the final stage of

McDonnell Douglas.

1. Ms. Gogel’s responsibilities as Team Relations manager

First, Ms. Gogel pointed to sufficient record evidence to raise an issue of

fact about whether her job involved the resolution of Title VII disputes. The

majority opinion fails to recognize the factual disputes over Ms. Gogel’s duties as

Team Relations manager, and improperly accepts Kia’s version instead. See Evans

v. Stephens, 407 F. 3d 1272, 1278 (11th Cir. 2005) (en banc) (holding that “when

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conflicts arise between the facts evidenced by the parties, we credit the nonmoving

party’s version” (emphasis omitted)). It is not for judges to decide whether Ms.

Gogel’s conduct was reasonable. Rather, this is a classic fact question reserved for

a jury to decide. 4

Kia hired Ms. Gogel as Team Relations manager in March 2008. The stated

purpose of the Team Relations department was to create standards and policies to

support “an environment of positive team relations,” develop standards around

behavior, help “set a positive culture,” and help employees “understand what the

rules and guidelines of the workplace were.” Ms. Gogel’s job responsibilities

included “promot[ing] high team member morale and prevent[ing] unwelcomed

activity within [Kia].”

But there is conflicting evidence over what, precisely, “prevent[ing]

unwelcomed activity” entailed. Kia says the primary role of the Team Relations

department was to resolve employment disputes before employees resorted to help

from an outside party, such as an attorney, labor union, or the EEOC. If true, this

would support the conclusion of the majority opinion that actively recruiting staff

to participate in a discrimination lawsuit was directly contrary to Ms. Gogel’s

primary role. But nothing in Ms. Gogel’s job description says she was tasked with

4

The Civil Rights Act of 1991 entitles a Title VII plaintiff seeking the award of

compensatory or punitive damages to a jury trial. Civil Rights Act of 1991 § 102, 42 U.S.C.

§ 1981a(c).

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resolving discrimination complaints internally. Beyond that, the parties offer

conflicting testimony on this question. Ms. Gogel testified that she understood

“unwelcome activity” to mean “union organizing activity,” as opposed to EEOC

charges or lawsuits. On the other hand, Arthur Williams, assistant manager of the

Team Relations department, testified that the role of the Team Relations

department was to “help team members stay out of legal situations and try to

resolve problems prior to them getting that bad.” Latesa Bailey, Kia’s Rule

30(b)(6) witness, testified that one of Ms. Gogel’s roles was to avoid employment

conflicts before employees resorted to outside parties. And Robert Tyler, the

Human Resources Manager at the Georgia plant, said ensuring that team members

did not turn to third parties to resolve disputes was only “one of the

responsibilities” of the Team Relations department.

As this review of the record makes clear, the only evidence about whether

Ms. Gogel’s job required her to prevent employees from resorting to litigation to

resolve discrimination claims comes from contradicted deposition testimony.

Thus, resolving this question requires weighing witness credibility. And again, it

is not the role of judges to pick between conflicting factual accounts at the

summary judgment stage of a case. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255, 106 S. Ct. 2505, 2513 (1986) (stating that resolving contradictory

testimony requires making credibility determination and weighing evidence, which

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are improper at summary judgment because they “are jury functions, not those of a

judge”); Evans, 407 F. 3d at 1277. Notably, this factual dispute goes to the heart

of Ms. Gogel’s retaliation claim. If preventing discrimination litigation was not

part of Ms. Gogel’s job, or was only incidental to it, then Kia cannot credibly claim

the assistance she provided Ms. Ledbetter rendered Gogel so ineffective in her job

that she was due to be fired. Indeed, if a factfinder decided that preventing

discrimination litigation was not a part of Ms. Gogel’s job, this would strongly

support the further finding that Kia’s dismissal of Ms. Gogel was prohibited

retaliation. Rather than address this dispute, however, the majority improperly

credits the deposition testimony presented by Kia over the contradictory testimony

offered by Ms. Gogel. Maj. Op at 44–47; see also id. at 50.

The majority leans heavily on Kia’s claim that Ms. Gogel’s job duties

included assisting Kia’s legal department in investigating EEOC charges. True,

the Team Relations department, which Ms. Gogel headed, occasionally conducted

investigations into policy violations, attendance issues, and internal discrimination

claims. However, the parties’ accounts of how important these investigations were

to Ms. Gogel’s job are quite different. Ms. Gogel says that EEOC investigations

were not central to her job and that her primary role was to prevent union

organizing activity and ensure that Kia employees “understand what the rules and

guidelines of the workplace were.” In support, she introduced evidence that the

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Team Relations department only investigated EEOC charges at the direction of Kia

legal counsel and that her role did not include the resolution of these issues. Ms.

Gogel understood the Team Relations department, in contrast to the Kia Legal

Department, was tasked primarily with “building . . . systems and processes to

ensure fair and equitable treatment, and . . . facilitat[ing] high employee morale.”

As before, the majority resolves this dispute by accepting Kia’s version of

the facts. And on this issue, like the first, the specific responsibilities of Ms.

Gogel’s job are central to resolving whether the form of opposition imputed to

her—soliciting another employee to file a discrimination charge against Kia—was

reasonable. See Hochstadt v. Worcester Found. for Experimental Biology, 545

F.2d 222, 230–31 (1st Cir. 1976) (holding that, in balancing the scope of

reasonable opposition conduct, “[t]he requirements of the job and the tolerable

limits of conduct in a particular setting must be explored”). If Ms. Gogel’s job

required her to assist in EEOC investigations only rarely, it would render Kia’s

claim that her opposition conduct made her ineffective in her position significantly

less credible and more likely to be pretextual.

The majority’s failure to recognize the disputes over Ms. Gogel’s job

requirements is particularly consequential here, where Kia has never pointed to a

clear company policy that she violated. By Ms. Gogel’s account, her job

responsibilities were significantly different than those of the plaintiffs in Hamm,

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Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir.

1980), and Jones. In those cases there was evidence that the plaintiff employees

had violated either clear administrative protocols for handling discrimination

complaints, see Hamm, 708 F.2d at 653; Whatley, 632 F.2d at 1326–27, or a clear

obligation to represent the employer in administrative proceedings and attempt to

resolve discrimination complaints in a manner favorable to the company, Jones,

793 F.2d at 716–17. Kia, in contrast, emphasizes Ms. Gogel’s breach of the trust

that management placed in her and the loyalty it expected from her. Whether any

employee has met this general and aspirational job requirement is not readily

apparent, unlike those policies violated in the cases relied upon in the majority

opinion.

In the absence of a clear violation of company policy, a jury should decide

whether it was reasonable for Kia to fire Ms. Gogel because her opposition

conduct made her ineffective at her job. Again, it is not for judges to resolve

disputes of fact about Ms. Gogel’s specific job duties and responsibilities. And

when the majority opinion anchors its decision on Kia’s assertions that it lost

“trust” in Ms. Gogel, it necessarily gives credence to one side’s facts over the

other. By taking over this fact-finding function, our court has reduced the scope of

Title VII’s protections for thousands of people whose positions in human resources

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put them in incidental contact with EEOC complaints. 5 This undermines the

overall effectiveness of Title VII, which “depends for its enforcement upon the

cooperation of employees who are willing to file complaints and act as witnesses.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 2414

(2006). Thus, today’s ruling chips away at the statute’s goal of “strik[ing] at the

entire spectrum of disparate treatment of men and women in employment.” Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986)

(quotation marks omitted).

2. Ms. Gogel’s own EEOC complaint

Separate from the question of whether Ms. Gogel’s opposition conduct was

reasonable, there is also a dispute about whether she was fired because she filed

her own EEOC charge. As the majority acknowledges, filing an EEOC charge is

protected participation conduct and is therefore not a permissible basis for an

adverse employment action. Maj. Op. at 43. Again here, this evidence creates a

triable issue of fact concerning Kia’s reason for firing Ms. Gogel. It therefore

5

Amici from the Florida and Georgia chapters of the National Employment Lawyers

Association point us to statistics kept by the Bureau of Labor Statistics, which now show that in

2018 there were over 625,000 “human resources specialists” and 150,000 “human resources

managers” in the United States. See Br. of Amici Curiae National Employment Lawyers

Association, Florida and Georgia Chapters at 19–20; Bureau of Labor Statistics, U.S. Dep’t of

Labor, Occupational Outlook Handbook, “Human Resources Specialists,”

https://www.bls.gov/ooh/business-and-financial/human-resources-specialists.htm (last visited

March 19, 2020), and “Human Resource Managers,”

https://www.bls.gov/ooh/management/human-resources-managers.htm (last visited March 19,

2020).

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provides another independent ground for reversing the grant of summary

judgment.6

First, Ms. Gogel points to the timing of the filing of her EEOC charge and

her suspension and firing. Close temporal proximity can support a finding of

causation between a statutorily protected activity and an adverse employment

action. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (per curiam). Ms. Gogel filed her first EEOC charge on November 10,

2010. Kia received it on November 22. Ms. Gogel was fired less than two months

later. This evidence supports the inference that her filing of the EEOC charge,

rather than concerns about her effectiveness in her position, was the real reason for

her discharge. Even if the two-month gap between the filing of Ms. Gogel’s

6

The majority points to the holding in the original panel opinion that Ms. Gogel could

not prove causation for her gender and national origin claim based solely on the fact that she

filed her own EEOC charge. See Maj. Op. at 27 n.17. True, the now-vacated opinion said that,

although the timing of Ms. Gogel’s filing of her EEOC charge tended to show that the reason

offered by Kia for her firing was pretextual, that evidence failed to show that the “real reason”

was national origin or gender discrimination. See Gogel v. Kia Motors Mfg. of Ga., Inc., 904

F.3d 1226, 1239 (11th Cir

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