Senior Judge Julie Carnes (left) and Judge Robin Rosenbaum, U.S. Court of Appeals for the Eleventh Circuit. (Photos: John Disney/ALM)

Serving as a human tennis ball is an occupational hazard for lawyers arguing before appellate courts, and that fate fell to Meredith Carter of Smyrna in a curious employment discrimination case.

Carter stood before the 12 judges of the U.S. Court of Appeals for the Eleventh Circuit on behalf of her client, who claims executives at Kia's Georgia manufacturing plant illegally fired her after she filed a discrimination claim based on gender and national origin.

The company maintains it sacked Andrea Gogel because she became ineffective at her human resources job after allegedly encouraging two other employees to file discrimination claims.

A trial judge tossed Gogel's claims, but an Eleventh Circuit panel split 2-1 in favor of reinstating her retaliation claim. The full court agreed to rehear the case, leading to Carter's moment in the crossfire Tuesday.

Moments after Carter started her presentation, Senior Judge Julie Carnes broke in to ask why Gogel's solicitation of other lawsuits against the company didn't forfeit her Title VII protections.

"That is a disputed fact," Carter responded. Gogel claimed all she did was give a colleague the name of an attorney she was considering hiring for herself.

Carnes shot back that Kia executives had a "good faith belief" that Gogel was soliciting lawsuits.

Judge Robin Rosenbaum noted Gogel reported she had been stopped from investigating alleged improper behavior by a top Kia executive and was told to destroy her records. "Is that a company operating in good faith?" she asked Carter.

Carnes came back, saying she wanted to test the limits of Carter's argument. How many employees could Gogel encourage to sue the company? Five? Ten? Could she set up an agency in the office to "sic on the company?"

Carter reemphasized her point that Gogel hadn't solicited anyone to sue Kia and said her actions were protected.

"That answers my question," Carnes said. "It's unlimited."

Gogel filed a complaint with the Equal Employment Opportunity Commission after hearing complaints that the company's Korean executives discriminated against women and Americans and began to consider herself a victim as well.

Anne King of the Equal Employment Opportunity Commission, which backs Gogel in the case, followed Carter to the podium, and Rosenbaum again echoed Carnes' language to make the opposite point.

Rosenbaum noted some jobs require a duty of loyalty to employers, but "isn't there some kind of limit" to the loyalty a company can require?

King said that might depend on factors at each company, then moved to argue Gogel's behavior was far less disruptive than in cases Kia cited to support its firing.

Although Gogel may not have been screaming from her cubicle, Carnes said "you don't think it'd be just as disruptive" to be soliciting suits against the company?

"What was Kia supposed to do?" she asked.

Later, Judge Elizabeth Branch told King that under the court's case law "we won't second guess employers" acting in good faith.

Representing Kia, Jonathan Martin of Constangy, Brooks, Smith & Prophete in Macon focused on Gogel's alleged "failure to do her job" to alleviate human resources problems internally.

Judge Britt Grant posed a hypothetical where an assembly line worker was soliciting lawsuits. Martin said that employee couldn't be fired because, assuming her work was sufficient, she wasn't ineffective at her job the way Kia argued Gogel was.

Judge Beverly Martin, who authored the panel decision favoring Gogel, said, "There is a dispute of fact about what her duties were." She noted some of the cases Kia relied on—unlike the Gogel case—went to trial.

Judge Charles Wilson added, "Why can't we let the jury decide?"

The case is being watched closely. The U.S. Chamber of Commerce and the Association of Global Automakers back Kia, while the National Employment Lawyers Association is supporting Gogel.

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11th Circuit Weighs 'Loyalty and Trust' in HR Rep's Lawsuit Against Kia