CLOVER v. TOTAL SYSTEM SERVICES, INC., 176 F.3d 1346 (11th Cir. 1999)
D. LISA CLOVER, Plaintiff-Appellee, versus TOTAL SYSTEM SERVICES, INC.,
Defendant-Appellant.
No. 97-9229
United States Court of Appeals, Eleventh Circuit.
DECIDED May 27, 1999
Page 1347
Page 1348
Marcus B. Calhoun, Jr., George C. Boyd, Jr., Columbus, GA, for
Defendant-Appellant.
Howard R. Evans, Robert Dallas, Shaw & Evans, LLC, Atlanta, GA,
for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle
District of Georgia, D.C. Docket No. 4:96-CV-5-DF.
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior
Circuit Judge.[fn*]
[fn*] This decision is rendered by a quorum, due to Judge
Henderson's death on May 11, 1999. 28 U.S.C. § 46(d).
ON PETITION FOR REHEARING
CARNES, Circuit Judge:
[1] Our previous opinion in this case, which is published at
157 F.3d 824 (11th Cir. 1998), has already been vacated.
See Clover v. Total Sys. Servs., Inc.,
(11th Cir. 1999). In its place, on petition for
rehearing, we file this revised opinion.
[2] Plaintiff D. Lisa Clover, a former employee of defendant
Total System Services, Inc. ("TSYS"), brought this lawsuit,
claiming that TSYS discharged her in retaliation for her
participation in a TSYS investigation conducted in response to
TSYS' receipt of an EEOC notice of charge of discrimination.
After a jury awarded Clover $25,000 in compensatory damages and
$160,000 in punitive damages, TSYS moved for judgment as a matter
of law, contending that the evidence Clover adduced at trial was
insufficient to support a claim of retaliatory discharge. The
district court denied that motion, and TSYS appeals the denial.
We reverse.
I. BACKGROUND
[3] Lisa Clover began working for TSYS, a credit and debit card
data processor, in 1988. At the time of her termination on March
24, 1995, she was working as a microfiche clerk in the Support
Services Division. Her immediate supervisor was Annette Jones.
Jones' supervisor was Allen Pettis. The entire Support Services
Division was managed by Senior Vice President Walter Miller.
[4] On March 22, 1995, Audrey Hollingsworth, Assistant Vice
President of TSYS' Human Resource Management Division ("Human
Resources"), asked Jones to have Clover report to the Human
Resources office on March 23, 1995 for a meeting.
Page 1349
Apparently, there was some confusion about the meeting time. While
Clover believed that the meeting was set for 9:15 a.m., Hollingsworth
thought that it was scheduled for 9:00 a.m.
[5] Worried that the purpose of the meeting might be to inform
her of downsizing in her department, Clover spent the evening of
March 22, 1995 preparing a resume. The next morning, Clover
reported to the Human Resources office a few minutes after 9:15.
She concedes that she arrived late. Clover told Hollingsworth
that her lateness was the result of running a school errand for
her nephew.
[6] At the Human Resources meeting, Hollingsworth and Marcus
Calhoun, TSYS' legal counsel, informed Clover that they were
conducting an internal TSYS investigation concerning allegations
of sexual harassment made by Courtney Waters, a former Clover co-worker,
against Pettis. Although the record does not indicate
that Clover knew it at the time, TSYS had commenced this
investigation in response to receiving the notice of Waters'
charge of discrimination from the EEOC.[fn1] For thirty
to forty minutes, Hollingsworth and Calhoun asked Clover
questions concerning her knowledge of the office interaction
between Waters and Pettis. Once the meeting ended, Hollingsworth
told Clover she was free to return to her own office, which was
located across town.
[7] Because Clover had left her wallet at home, she did not
return directly to her office. She arrived at her office around
10:45 a.m., at which time Jones informed her the Human Resources
meeting was confidential and she should not tell anyone about it.
Jones also told her that she needed to speak with her about her
most recent tardiness. Although Clover was generally a good
worker, she was often tardy and had been threatened with
probation in the past because of her lateness. Jones was aware
that Clover had arrived late at the Human Resources office and
also knew that Clover had not promptly returned to work after the
meeting.
[8] Jones arranged a meeting with Pettis and Clover to discuss
Clover's tardiness. At Clover's request, Miller joined the
meeting. At that meeting, Clover admitted she had been late to
the Human Resources meeting. At trial there was some dispute
about the explanation Clover gave for being late. According to
Miller, Clover claimed during their meeting that she was late
because she was preparing a resume the night before. However, at
the Human Resources meeting, Clover had told Hollingsworth that
she was late because she ran an errand for her nephew.
Thereafter, Jones recommended that Clover be terminated
immediately, but Miller disagreed. He said he would look into
the possibility of finding a job for Clover in another
department.
[9] The next day, Miller informed Clover he was terminating her
employment because she had given conflicting explanations for her
tardiness. Miller said he had learned from Hollingsworth that
Clover had told her she was late to the Human Resources meeting
because she had an errand to run for her nephew, which conflicted
with the explanation Clover gave him, namely that she had been up
late preparing her resume. After some discussion, Miller agreed
to reconsider his decision if Clover could work out her
differences with Hollingsworth. Clover subsequently met with
Hollingsworth, but they failed to reach an agreement.
Hollingsworth called Clover on March 27, 1995 to tell her that
Miller was terminating her because she had given "false
information."
[10] Clover subsequently sued TSYS, alleging unlawful retaliation
in violation of 42 U.S.C. § 2000e-3(a). Specifically, she
claimed that TSYS terminated her in retaliation for her
participation in the investigation of the sexual harassment
allegations against Pettis and for her opposition to
Page 1350
that alleged sexual harassment. A jury found in Clover's favor and
awarded her $25,000 in compensatory damages and $160,000 in punitive
damages. TSYS filed a motion for judgment as a matter of law on
Clover's retaliation claim and her claim for compensatory damages.
The district court denied that motion and TSYS appealed.
II. STANDARD OF REVIEW
[11] We review de novo a denial of judgment as
a matter of law. See, e.g., Wideman v.
Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998).
III. DISCUSSION
[12] TSYS contends that the district court erred in denying it
judgment as a matter of law on Clover's retaliation claim. Its
contention potentially raises three issues: (1) whether the
district court erred in concluding Clover presented sufficient
evidence for the jury to find that Clover engaged in statutorily
protected conduct under 42 U.S.C. § 2000e-3(a); (2) whether
the district court erred in concluding Clover presented
sufficient evidence for the jury to find that Clover established
the requisite causal connection between her protected conduct and
her termination; and (3) whether the district court erred in
concluding Clover presented sufficient evidence for the jury to
find that TSYS' proffered nondiscriminatory reason for Clover's
termination was a pretext for discrimination. For the reasons
discussed below, we conclude that Clover engaged in statutorily
protected conduct under § 2000e-3(a)'s participation clause,
but that TSYS was entitled to judgment as a matter of law because
Clover failed to present sufficient evidence to establish the
requisite causal link between her protected conduct and her
termination. In light of our decision that Clover failed to
establish causation, we need not decide whether Clover presented
sufficient evidence of pretext.
[13] A. WHETHER THE DISTRICT COURT ERRED IN CONCLUDING CLOVER
PRESENTED SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT CLOVER
ENGAGED IN STATUTORILY PROTECTED CONDUCT
[14] The statutory provision that Clover asserts prohibited TSYS
from taking adverse employment action against her, 42 U.S.C. § 2000e-3(a),
recognizes two forms of statutorily protected
conduct. An employee is protected from discrimination if (1) "he
has opposed any practice made an unlawful employment practice by
this subchapter" (the opposition clause) or (2) "he has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter" (the
participation clause). 42 U.S.C. § 2000e-(3)a. The case was
submitted to the jury under both clauses, and Clover contends
that the facts presented at trial support a verdict in her favor
under either clause. We believe that although Clover's conduct
was not protected by the opposition clause, it did fall within
the scope of the participation clause.
[15] 1. Did Clover Engage in Protected Conduct Under the
Opposition Clause?
[16] Clover contends that the statements she made in her meeting
with Hollingsworth and Calhoun constituted opposition to an
unlawful employment practice, namely, sexual harassment. At the
meeting, Clover says she "described acts that she believed to
have been inappropriate or unusual behavior for a member of
senior management [i.e., Pettis]." Specifically, she testified
that she told Hollingsworth and Calhoun that Pettis engaged in
the following conduct:
(i) Pettis made frequent visits without any "business
purpose" to Waters' work area.
(ii) Pettis would call Waters on her personal beeper during
work hours.
(iii) Pettis would sometimes knock on the department door
where Waters, Clover
Page 1351
and other employees worked "to get Waters' attention and to
call Waters out into the hall to talk." However, if Clover
or another worker looked up, "Pettis would dart behind the
door out of sight."
(iv) Pettis hung up "the phone on anybody who answered other
than Waters during the day."
(v) Waters responded "to the attention of Pettis in a
flirting kind of style."
[17] Clover claims that her answers and statements during the
interview constitute opposition to an unlawful employment
practice. We assume for present purposes that answering
questions in such an interview can constitute "opposition."
[18] The parties agree that an employee who seeks protection under
the opposition clause must have a "good faith, reasonable belief"
that her employer has engaged in unlawful discrimination.
See Little v. United Techs., Carrier Transicold
Div., 103 F.3d 956, 960 (11th Cir. 1997). TSYS concedes
that Clover had a good faith belief that TSYS engaged in unlawful
sexual harassment, but argues that her belief was not objectively
reasonable. We agree.
[19] The objective reasonableness of an employee's belief that her
employer has engaged in an unlawful employment practice must be
measured against existing substantive law. See
Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385,
1388 n. 2 (11th Cir. 1998) (failure to charge the employee
who opposes an employment practice with substantive knowledge of
the law "would eviscerate the objective component of our
reasonableness inquiry").
[20] To establish a hostile environment claim premised on sexual
harassment, a plaintiff must establish, among other things, that
the harassment occurred because of her sex, and "that the
harassment was sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive working
environment." Watkins v. Bowden, 105 F.3d 1344, 1355
(11th Cir. 1997). Clover contends that her belief that Pettis
engaged in sexual harassment attributable to TSYS was objectively
reasonable "based on the nature of [Pettis'] conduct in
connection with [Waters,] a seventeen year old high school
student combined with Pettis' position in the company [as an
assistant vice-president.]" However, the disparity between
Pettis' and Waters' ages and positions in the company does not
make Clover's belief objectively reasonable. None of the conduct
that Clover described comes anywhere near constituting sexual
harassment, regardless of the relative positions of the employees
involved. As the Supreme Court recently stated:
[T]he statute does not reach genuine but innocuous
differences in the ways men and women routinely interact with
members of the same sex and of the opposite sex. The
prohibition of harassment on the basis of sex requires
neither asexuality nor androgyny in the workplace; it forbids
only behavior so objectively offensive as to alter the
"conditions" of the victim's employment.
[21] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
118 S.Ct. 998, 1002-03 (1998). The Supreme Court has said that the
conduct in question must be severe or pervasive enough that a
reasonable person would find it hostile or abusive. That requirement
is crucial "to ensur[ing] that courts and juries do not mistake
ordinary socializing in the workplace-such as . . . intersexual
flirtation-for discriminatory `conditions of employment.'"
Id. at 1003.
[22] We do not mean to hold that the conduct opposed must actually
be sexual harassment, but it must be close enough to support an
objectively reasonable belief that it is. The conduct Clover
described misses the mark by a country mile. It follows that
Clover's belief the conduct created a sexually hostile
environment for Waters was not objectively reasonable.
Similarly, Clover could not have formed an objectively reasonable
belief that Pettis, or anyone else, had subjected Waters to quid
pro quo sexual harassment because she failed to relate any facts
at all supporting such a claim.
Page 1352
[23] Nor does the fact that Pettis engaged in conduct which led
Waters to file an EEOC complaint and for the company to initiate
an in-house investigation alter our conclusion that Clover could
not have held an objectively reasonable belief she was opposing
an unlawful employment practice. To begin with, the company's
in-house investigation, which began before Clover was
interviewed, was not based on anything Clover said but instead
was a response to the EEOC complaint Waters had filed.
[24] Moreover, for purposes of determining whether Clover
satisfied the objective reasonableness component of the test it
is critical to distinguish between the conduct that Clover
opposed, i.e., what she saw or heard and then reported during the
in-house interview, and the actual conduct Waters experienced and
reported in her complaint to the EEOC. There is nothing in the
record to suggest that the two are the same. For opposition
clause purposes, the relevant conduct does not include conduct
that actually occurred-or that was averred in an EEOC complaint
by the alleged victim-but was unknown to the person claiming
protection under the clause. Instead, what counts is only the
conduct that person opposed, which cannot be more than what she
was aware of. Additional conduct or allegations unknown to the
opposing person are not relevant to the opposition clause
inquiry. Clover's belief that the conduct she described created
a sexually hostile environment was objectively unreasonable.
Therefore, she did not engage in statutorily protected conduct
under the opposition clause.[fn2]
[25] 2. Did Clover Engage in Protected Conduct Under the
Participation Clause?
[26] As we mentioned earlier, in response to receiving the notice
of Waters' charge of discrimination from the EEOC, TSYS commenced
an investigation into the merits of that charge. Clover
participated in that investigation by answering questions
concerning her knowledge of the office interaction between Waters
and Pettis. Clover contends that she engaged in statutorily
protected conduct under the participation clause because her
participation in TSYS' investigation constitutes "participat[ion]
in any manner in an investigation . . . under this subchapter
[i.e., subchapter VI of Chapter 21 of Title 42 (42 U.S.C. § 2000e)]."
42 U.S.C. § 2000e-3(a). TSYS, on the other hand,
contends that Clover did not engage in protected conduct because
she simply participated in an internal employer investigation,
which is not "participat[ion] in any manner in an
investigation . . . under this subchapter." It relies upon dicta
from Silver v. KCA, Inc., 586 F.2d 138, 141
(9th Cir. 1978), that participation conduct is
"participation in the machinery set up by Title VII to enforce
its provisions." Thus, the issue we must resolve is whether an
employee's participation in an investigation conducted by her
employer in response to an EEOC notice of charge of
discrimination is "participat[ion] in any manner in an
investigation . . . under this subchapter."
[27] In addressing that issue, we begin by noting that although
subchapter VI of chapter 21 of title 42 does not define the term
"investigation . . . under this subchapter," it is clear that, at
a minimum, the
Page 1353
term encompasses EEOC investigations of alleged unlawful discrimination.
See 42 U.S.C. § 2000e-5(b) ("Whenever a charge is filed
by . . . a person . . . alleging that an employer . . . has engaged
in an unlawful employment practice, the [EEOC] . . . shall make an
investigation thereof.").
[28] In conducting its investigation, the EEOC can of course
consider evidence gathered by its own investigators, but the EEOC
may also consider evidence from other sources, including
employers. The pertinent regulation provides that, "[a]s part of
[the EEOC's] investigation, the [EEOC] will accept any statement
of position or evidence with respect to the allegations of the
charge which . . . the respondent [employer] wishes to submit."
29 C.F.R. § 1601.15(a). In addition, the EEOC's standard
form providing an employer with notice of a charge of
discrimination expressly informs the employer that any statement
of position or evidence the employer submits to the EEOC "will be
made a part of the file and will be considered" during the EEOC's
investigation. EEOC Form No. 131 (Oct. 1994) ("Notice of Charge
of Discrimination").
[29] Thus, an employer receiving a form notice of charge of
discrimination knows that any evidence it gathers after that
point and submits to the EEOC will be considered by the EEOC as
part of the EEOC investigation. Though this is an indirect means
of gathering evidence to investigate a charge of discrimination,
the EEOC considers employer-submitted evidence on an equal
footing with any evidence it gathers from other sources. Because
the information the employer gathers as part of its investigation
in response to the notice of charge of discrimination will be
utilized by the EEOC, it follows that an employee who
participates in the employer's process of gathering such
information is participating, in some manner, in the EEOC's
investigation.
[30] To be sure, this form of participation is more indirect than,
for example, an employee giving an interview to the EEOC's own
investigators. But Congress chose to protect employees who
"participate[] in any manner" in an EEOC investigation.
42 U.S.C. § 2000e-3(a) (emphasis added). The words
"participate in any manner" express Congress's intent to confer
"exceptionally broad protection" upon employees covered by Title
VII. See Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998, 1006 n. 18 (5th Cir. 1969). As we pointed
out in Merritt v. Dillard Paper Co., 120 F.3d 1181,
1186 (11th Cir. 1997), "the adjective `any' is not
ambiguous. . . . [It] has an expansive meaning, that is, one or
some indiscriminately of whatever kind. . . . [A]ny means all."
(internal quotations and citations omitted). Because
participation in an employer's investigation conducted in
response to a notice of charge of discrimination is a form of
participation, indirect as it is, in an EEOC investigation, such
participation is sufficient to bring the employee within the
protection of the participation clause.[fn3]
[31] Our previous opinion erred by its exclusive focus on whether
the employee was participating in an EEOC investigation or an
internal investigation conducted by the employer. Here, we
recognize that, at least where an employer conducts its
investigation in response to a notice of charge of
discrimination, and is thus aware that the evidence gathered in
that inquiry will be considered by the EEOC as part of its
investigation, the employee's participation is participation "in
any manner" in the EEOC investigation. Accordingly, by
participating in her employer's investigation conducted in
response to an EEOC notice of charge of discrimination, Clover
engaged in statutorily protected conduct under the participation
clause.
Page 1354
[32] B. WHETHER THE DISTRICT COURT ERRED IN CONCLUDING CLOVER
PRESENTED SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT CLOVER
ESTABLISHED THE REQUISITE CAUSAL CONNECTION BETWEEN HER PROTECTED
CONDUCT AND HER TERMINATION
[33] In order to prevail on a retaliation claim, a plaintiff must
establish the requisite causal connection between her statutorily
protected conduct and the adverse employment action.
See Goldsmith v. City of Atmore, 996 F.2d 1155,
1163 (11th Cir. 1993). To establish that
causal connection, a plaintiff need only show "that the protected
activity and the adverse action were not wholly unrelated."
Simmons v. Camden County Bd. of Educ., 757 F.2d 1187,
1189 (11th Cir. 1985). "At a minimum, a plaintiff must generally
establish that the employer was actually aware of the protected
expression at the time it took adverse employment action. The
defendant's awareness of the protected statement, however, may be
established by circumstantial evidence." Goldsmith,
996 F.2d at 1163 (internal citations omitted).
[34] In this case, TSYS contends Clover failed to present
sufficient evidence for a jury to conclude that Clover
established the requisite causal connection between her protected
conduct  i.e., her participation in the investigation of
Waters' sexual harassment claim against Pettis  and her
termination. Specifically, TSYS argues Miller was the only
decision-maker responsible for Clover's termination and Clover
failed to present evidence that he was aware of Clover's
protected conduct at the time he terminated her.
[35] Clover offers two arguments in response. First, she says
Miller was aware of Clover's protected conduct and his awareness,
combined with the temporal proximity of that protected conduct to
her termination, are sufficient to establish causation. Second,
Clover says there was sufficient evidence for the jury to find
Hollingsworth was also a decision-maker in her termination and
Hollingsworth's undisputed awareness that Clover had engaged in
protected conduct combined with the temporal proximity of her
protected conduct to her termination, are sufficient evidence to
establish causation.
[36] If Clover is correct that there was sufficient evidence to
show that either (1) Miller was aware of her protected conduct or
(2) Hollingsworth was a decision-maker, then she created a jury
issue on the causal link requirement of her retaliation claim.
See Goldsmith, 996 F.2d at 1163-64 (awareness
by decision-maker of protected conduct, in conjunction with
temporal proximity of adverse employment action to protected
conduct, is sufficient to create a factual issue about the causal
link requirement). However, for the reasons set forth below, we
conclude that there was insufficient evidence to support either
theory of causation.
[37] With regard to her first theory, Clover concedes that there
is no direct evidence Miller was aware of her participation in
the investigation of Waters' sexual harassment claim against
Pettis. Miller unequivocally denied being aware of it. In the
face of that denial, Clover offers the following circumstantial
evidence in her effort to establish that Miller was aware of her
protected conduct:
(i) Miller was Pettis' friend and manager.
(ii) Prior to his decision to terminate Clover, Miller knew
Pettis had been investigated about something, but did not
know the details.
(iii) Miller spoke with Hollingsworth, at some point after
Clover participated in the investigation on March 23 but
before Miller informed Clover she was being terminated March
24.
[38] Clover argues that a jury could infer Miller knew that Pettis
was being investigated for sexual harassment from the fact he was
Pettis' friend and manager and Miller's admission that he knew
Pettis had been investigated about something. Clover
Page 1355
further argues that given the timing of Miller's conversation
with Hollingsworth  i.e., shortly after Clover met with
Hollingsworth as part of the investigation and shortly before
Miller decided to terminate Clover  a reasonable jury
could infer that Hollingsworth told Miller that Clover had
participated in the investigation of Pettis. Thus, Clover
contends she presented sufficient evidence to establish Miller's
awareness of her protected conduct.
[39] Clover cites our decision in Goldsmith v. City of
Atmore, 996 F.2d 1155 (11th Cir. 1993), to
support her argument. In that case, Goldsmith, a black employee
of the City of Atmore, sought to prove that she had been
transferred by the mayor in retaliation for engaging in conduct
protected under Title VII. Goldsmith had applied for a position
as city clerk. After learning the position would be filled by a
white female, Goldsmith informed one of the city council members
that she was going to file an EEOC complaint. The next morning
the council member met with the city's mayor. After the meeting,
the mayor met with Goldsmith and told her the clerk position she
sought was filled and "there was nothing [Goldsmith] could do
about it." Id. at 1157. Three weeks later the mayor
told Goldsmith to clean out her desk, because she had been
transferred to the city library. See id.
[40] A key issue at trial and on appeal was whether Goldsmith had
presented sufficient evidence to establish that the mayor was
aware of her protected activity-i.e., her complaints to the
council member and threat to file an EEOC complaint. At trial,
the mayor denied talking about Goldsmith during his meeting with
the councilman but was impeached by his deposition testimony
stating that he "may" have discussed Goldsmith's complaints
during their meeting. See id. at 1363 & n.
12. We held that those facts were sufficient for a jury to find
that the mayor was aware of the employee's protected activity for
purposes of satisfying the causal link requirement of Goldsmith's
retaliation claim. See id. According to
Clover, the evidence she presented was sufficient, under
Goldsmith, for a reasonable jury to find that Miller
was in fact aware of her protected conduct. We disagree.
[41] Although Clover's evidence raises the inference that Miller
was aware, in some fashion, that TSYS was investigating Pettis,
that evidence is insufficient for any reasonable jury to find
that Miller was aware of Clover's participation in that
investigation when he decided to terminate her. The evidence
that Miller and Hollingsworth spoke in the time period between
Clover's participation in the investigation and Miller's decision
to terminate her shows, at most, that Hollingsworth could
conceivably have told Miller about Clover's participation. But
because "could have told" is not the same as "did tell," it would
be pure speculation to infer that Hollingsworth actually told
Miller about Clover's participation. The fact that the vice-president
who heads a corporate division and the vice-president
in charge of Human Resources talk regularly is not surprising,
nor is it enough to support a reasonable inference that they
discussed a specific topic, much less an inference concerning
what they said about it. A jury finding that Miller was aware of
Clover's protected conduct must be supported by reasonable
inferences from the evidence, not mere speculation.
[42] Goldsmith is not to the contrary. In that case,
plaintiff Goldsmith had evidence to impeach the mayor's denial
that he had discussed her protected conduct with the councilman.
In contrast, Clover offered no evidence to impeach Miller's
unequivocal denial that he had any knowledge of Clover's
participation in the Pettis investigation or that he had ever
discussed the subject with Hollingsworth. Nor did Clover even
ask Hollingsworth during the trial if she had told Miller about
Clover's participation in the investigation. Clover did not
introduce any evidence that it would have been Hollingsworth's
standard practice to inform Miller his subordinates were involved
in investigations conducted by Human Resources. Accordingly, we
Page 1356
conclude that Clover failed to present sufficient evidence to
establish that Miller was aware of her protected conduct.[fn4]
[43] With regard to her second theory of causation, Clover relies
primarily on two pieces of evidence to support her position that
Hollingsworth was a decision-maker. We find neither persuasive.
First, she points to Hollingsworth's testimony that it was the
general practice of the Human Resources Department, of which
Hollingsworth was Assistant Vice-President, to review and
evaluate termination decisions at TSYS. Clover argues that
Hollingsworth's role in reviewing and evaluating termination
decisions was enough for a reasonable jury to infer that she was
a decision-maker in TSYS' termination of Clover. The problem with
that argument, however, is that Hollingsworth did not testify
that she actually had the authority to overrule the decision of
Miller, a senior vice-president, to terminate Clover. Nor did
Clover present any evidence showing Hollingsworth had such
authority. Furthermore, the undisputed testimony of both
Hollingsworth and Miller was that Hollingsworth made no
recommendation at all to Miller concerning whether he should
terminate her. There is no evidence to contradict that
unequivocal testimony.
[44] Second, Clover points to her testimony that Miller told her
that he would revoke his decision to terminate her if she could
work out her differences with Hollingsworth concerning the
scheduled time of Clover's March 23 meeting with the Human
Resources. According to Clover, she did work out those
differences, and Hollingsworth promised to tell Miller. Although
Clover argues that this made Hollingsworth a decision-maker in
her termination, we cannot agree. At most, the evidence shows
Hollingsworth supplied Miller with information (apparently
favorable to Clover) which he may or may not have considered in
making his decision to terminate Clover. It does not show that
Hollingsworth made the decision. To the contrary, Clover's own
testimony was that when Hollingsworth called her on March 27,
1995, Hollingsworth told her that it was Miller who had
decided to terminate her for falsifying information.
Accordingly, we conclude that Clover failed to present sufficient
evidence to establish that Hollingsworth was a decision-maker in
her termination.[fn5]
[45] In sum, because Clover failed to present sufficient evidence
either that (1) Miller was aware of her protected conduct or (2)
anyone other than Miller was a decision-maker, we conclude she
did not present sufficient evidence to permit a jury to
reasonably find the requisite causal connection between her
protected activity and her termination. Because Clover was
required to establish that causal connection in order to prevail
on her retaliation claim, the district court erred in denying
TSYS' motion for judgment as a matter of law.
IV. CONCLUSION
[46] The judgment is REVERSED.
[fn1] Prior to Waters' filing of an EEOC charge of discrimination
and TSYS' receipt of notice of that charge, TSYS had conducted
another in-house investigation of Waters' allegations of sexual
harassment. Clover did not participate in that
investigation.
[fn2] We also reject the EEOC's argument, raised for the first
time in an amicus brief filed with Clover's petition for
rehearing, that TSYS' decision to conduct an in-house
investigation in response to the notice of charge of
discrimination made it objectively reasonable for Clover to
believe she was opposing unlawful discrimination. As we pointed
out above, the objective reasonableness of an employee's belief
that her employer has engaged in an unlawful employment practice
must be measured against existing substantive law. See
Harper, 139 F.3d at 1388 n. 2. While the fact that TSYS
was conducting an investigation may have contributed to Clover's
subjective belief that she was opposing unlawful
discrimination, TSYS' decision to conduct such an inquiry has no
bearing on the issue of whether the conduct Clover was "opposing"
by answering questions during TSYS' investigation was an unlawful
employment practice as measured against the existing substantive
law.
[fn3] We have no occasion to decide in this case whether the
participation clause extends to cover an employee's participation
in an investigation conducted by her employer before receiving a
notice of charge of discrimination from the EEOC.
[fn4] Clover also asserts that Miller knew of Clover's
participation in the investigation because Jones, Clover's
immediate supervisor, told him. That assertion, however, is mere
speculation. Even assuming Jones knew of Clover's participation,
there is no evidence that Jones told Miller.
[fn5] Clover does not contend that anybody besides Hollingsworth
and Miller were possible decision-makers in her termination.
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