By Honore N. Hishamunda and Brett C. Bartlett

Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity, and that an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

Title VII and Section 1981 prohibit employers from retaliating against employees because they have engaged in statutorily protected activity, including – among other things – opposing unlawful practices or filing a charge of discrimination with the EEOC. Employers remain free to take adverse employment actions, including discipline up to and including termination, against employees who have engaged in protected activity but only when there is a legitimate, non-retaliatory reason for taking the adverse action.

What happens when employee engages in misconduct and statutorily protected activity at the same time?  Does the employee’s activity lose the benefit of statutory protection because they engaged in misconduct?  To the extent the activity is still protected, can the employer discipline or fire the employee for the underlying misconduct?

These were the very questions presented to the United States Court of Appeals for the Eleventh Circuit in its recent decision – Gogel v. Kia Motors Manufacturing of Georgia, Inc.. The court’s answers provided clarity on (a) how employers may take legitimate, non-retaliatory employment actions against employees engaged in workplace misconduct even though such misconduct touches on protected activity; and (b) when otherwise protected activity may lose statutory protection.

Andrea Gogel previously worked in Kia’s human resources department as a Team Relations Department Manager. In her role, she was responsible for overseeing workplace investigations, notifying the HR department’s manager about the results of the investigations, and making recommendations about what to do next. While still employed with Kia, Ms. Gogel filed a charge of discrimination with the EEOC alleging that Kia discriminated against her because of her gender and national origin by not naming her as head of department. Straightforward so far, but the plot thickens.

After learning from the EEOC of her charge, Kia received reports from multiple employees that Ms. Gogel not only encouraged a co-worker to sue Kia for alleged workplace discrimination and harassment but also recommended that her co-worker use her lawyer to do so. Despite Ms. Gogel’s efforts to deny her co-workers’ reports, Kia was understandably distressed that an HR professional on its team might have been encouraging employees to make employment law claims against it. This was certainly not something appearing in her job description, and undoubtedly not only impacted her ability to perform her job but also denied anyone else in the organization – whether that be employees in the HR team or the legal team – to do their jobs in mitigating legal risk. Accordingly, having lost confidence in her ability to do her job and no doubt feeling betrayed, the company, unsurprisingly, bid her farewell, terminating her employment for her dereliction of critical job duties.

Ms. Gogel filed a lawsuit in the United States District Court for the Northern District of Georgia alleging, among other things, that Kia unlawfully retaliated against her because she had filed her charge of discrimination with the EEOC. The District Court granted Kia’s motion for summary judgment, finding that the company terminated the HR professional for a legitimate, non-retaliatory reason – soliciting a coworker to file a charge against Kia, an act that was in direct conflict with the responsibilities of her important role.

Ms. Gogel appealed to the Eleventh Circuit arguing that Kia’s stated reason for firing her was actually pre-text for retaliation, and that soliciting a coworker to sue the company was, in addition to filing a charge, in and of itself protected activity. The Eleventh Circuit rejected Ms. Gogel’s arguments and affirmed the District Court’s order granting summary judgment for her employer.

The Eleventh Circuit held that though Ms. Gogel engaged in protected activity by filing her charge, Kia had a legitimate, non-retaliatory reason for terminating her employment that she could not establish was pretext for unlawful retaliation. The Court found that:

  • Despite Ms. Gogel denying that she recruited another employee to sue Kia, the company had a good-faith belief that she did so given the multiple reports from co-workers;
  • Kia had a legitimate reason, non-retaliatory reason for firing Ms. Gogel – recruiting another employee to sue the company;
  • Though Kia exited her within a few months of her charge, Ms. Gogel failed to show that the company’s reason for doing so was pretext for unlawful retaliation because Kia (i) had given her a discretionary bonus and commended her for her good work after she filed her charge but before learning about her workplace misconduct; and (ii) only fired her after learning about her possible workplace misconduct.

The appellate court also held that though Ms. Gogel’s decision to recruit another employee to sue Kia may be characterized as opposition to potentially unlawful conduct, it did not constitute protected activity. The court highlighted several key legal principles (noted below) that should help guide employers as they navigate the limits of protected activity:

  • An employee’s statutory protections are not absolute;
  • An employee must express protected activity in a reasonable manner, and reasonableness is determined by balancing the need to protect individuals asserting their statutory rights with “an employer’s legitimate demands for loyalty, cooperation, and a generally productive work environment”;
  • An employee’s otherwise protected activity loses statutory protection when it so interferes with the performance of their job duties that it renders the employee ineffective in their job – something the EEOC’s own Enforcement Guidance on Retaliation and Related Issues recognizes in providing that:
  1. “[T]he protection of the opposition clause only applies where the manner of opposition is reasonable”
  2. “Opposition to perceived discrimination also does not serve as license for the employee to neglect job duties”
  3. “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”
  • An employee’s otherwise protected activity also loses statutory protection even where it doesn’t interfere with an employee’s job duties if the activity “is expressed in a manner that unreasonably disrupts other employees or the workplace in generally”

The Eleventh Circuit then found that Ms. Gogel’s decision to recruit an employee to sue Kia was “in direct conflict with her [HR] job responsibilities.”  Further, the court noted that the company “could no longer trust” her to do her job given that she was “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 [internal] complaint, such as the filing of an EEOC charge and a subsequent lawsuit.”

This decision confirms the fundamental axiom that employers may take appropriate disciplinary action against employees engaged in protected activity so long as they have a legitimate, non-retaliatory reason for doing so. It also highlights a more nuanced, but no less important, principle: an employee’s right to engage in protected activity is not absolute and, instead, an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

If you have any questions regarding this area of law, need assistance in evaluating whether an employee has engaged in protected activity or in assessing the legal risks associated with disciplining or terminating an employee who has engaged in possible protected activity, or require representation in defending a charge of discrimination or lawsuit, do not hesitate to contact either of the authors, your Seyfarth attorney, or a member of the Firm’s Workplace Policies and Handbooks or the Labor & Employment Teams.