“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit Judge Elizabeth Branch wrote, and Trump judge Britt Grant joined, a 7-4 opinion effectively reversing a 3-judge panel and affirming a grant of summary judgment without a trial against a woman who contends she was fired for raising gender and national origin discrimination claims. The July 2020 case is Gogel v. Kia Motors.
Andrea Gogel began working for Kia Motors of Georgia in 2008 as its Team Relations Department Manager in its HR department. Top management at Kia is Korean. In November 2010, Gogel filed a complaint with the Equal Employment Opportunity Commission (EEOC) contending that she did not receive a promotion due to discrimination based on gender and national origin. Against her will, Gogel then signed an agreement that she would not “solicit or influence” other team members to make claims against Kia or make any written or verbal statements to them that “malign the company.” In late December, she received a $12,000 bonus and was told she was doing a “good job.”
Earlier in December, Diane Ledbetter had filed an EEOC charge against Kia based on gender, national origin, and her “Caucasian” race. Ledbetter used the same law firm as Gogel, prompting suspicion by upper management. Gogel and Kia disagreed on whether Gogel had encouraged Ledbetter and others to file charges against Kia and whether Gogel had violated the agreement. Kia put Gogel on administrative leave and then fired her in mid-January, 2011, claiming that she had in fact committed those acts, created at the very least an “appearance of conflict of interest,” and that Kia had “lost confidence” and “faith” in Gogel “as a manager.”
Gogel then filed suit against Kia, claiming discrimination based on gender and national origin and retaliation for filing her initial EEOC complaint. A lower court granted summary judgment for Kia, but a 3-judge panel of the Eleventh Circuit partly reversed that decision, finding that summary judgment was improper on Gogel’s retaliation claim and sending the case back to the court below. The full Eleventh Circuit decided to rehear the case.
In a 7-4 decision written by Trump judge Branch and joined by Trump judge Grant, the Eleventh Circuit affirmed the lower court grant of summary judgment without trial on Gogel’s retaliation claims. All the judges agreed that Gogel had made an initial showing (or prima facie case) that she was fired at least in part in retaliation for her discrimination claim, and that Kia had come forward with a nondiscriminatory reason for firing her—Kia’s belief that she had encouraged and helped other employees like Ledbetter to file discrimination claims against Kia and therefore became “ineffective” in her position.
Branch’s opinion also found, however, that Gogel had failed to provide sufficient evidence for a “reasonable factfinder” to conclude that Kia’s reason was just a pretext and that Kia would not have fired her if she had not made her discrimination claim. Branch also rejected the contention that Gogel’s conduct with respect to other employees could be considered “opposition” to alleged unlawful employment practices at Kia which could not serve as the basis for firing her, claiming that the record showed that Kia believed in good faith that Gogel had recruited Ledbetter to sue the company and that action “so interfere[d] with Gogel’s “performance of her job” in HR that it “render[ed] her ineffective” in her position with the company.
The four dissenters strongly disagreed. Judge Charles Wilson explained that summary judgment should have been denied because there was “more than enough” evidence in the record that a jury could “reasonably rely upon” to conclude that Gogel was fired in retaliation for her “own charge of discrimination,” including the “temporal proximity” between her EEOC charge and her termination, evidence that Kia “retaliated against other employees” who made similar complaints, and evidence that she did not encourage Ledbetter to file a complaint. Rather than viewing the evidence “in the light most favorable to Gogel” as required in evaluating a summary judgment decision, Wilson went on, the majority improperly “adopts the role of factfinder,” weighs the evidence itself, and “tips the scales in Kia’s favor.” Judge Beverly Martin similarly explained that key facts about “Ms. Gogel’s conduct, the nature of her job,” and Kia’s true “motivation for terminating her were all in dispute,” and that the majority improperly resolved these disputes by “accepting Kia’s version of the facts.”
Judge Robin Rosenbaum’s dissent, joined by several others, went even further. She explained that a “reasonable jury” could find that Kia “did not really believe” that Gogel had encouraged Ledbetter to file charges against it, but that officials had worked to “doctor up the charge as a pretext” for retaliating against her. In addition, Martin pointed out, Branch’s opinion improperly “bans any employee with any type of Title VII-related responsibilities” such as Gogel’s HR position “from so much as discussing Title VII’s EEOC process with any other employee,” and “effectively immunizes employers’ illegitimate demands for loyalty” even when they “discriminate and retaliate” against their employees. Rosenbaum explained in detail that this was because in rejecting the contention that Gogel’s conduct with respect to Ledbetter and other employees constituted opposition to unlawful employment practices that could not serve as the basis for firing her, Branch’s opinion failed to follow “binding precedent” that requires “balancing” the need to “protect individuals” asserting their Title VII rights against a company’s “legitimate demands” for loyalty and cooperation. Instead, Rosenbaum continued, the majority had given “zero consideration” to the first part of the test and applied a “rubber stamp” of approval to Kia’s demands. The result, Martin wrote, could well be a “devastating blow to the Title VII rights” of both the 775,000 “human-resources employees” in the US and “the employees they serve.”
As a consequence of Branch’s majority opinion joined by Grant and others, however, Gogel will not have the opportunity to prove to a jury that she was fired by Kia in retaliation for filing an EEOC discrimination charge. In addition, as Judge Rosenbaum explained, the opinion may well strike a “devastating blow” to Title VII rights of employees.