Six Opinions and Sharp Jabs Highlight Court's Ruling for Kia in Retaliation Case
For the majority, Judge Elizabeth Branch held that Judge Robin Rosenbaum's dissent offered an "amorphous and unworkable" principle, while Rosenbaum said Branch's decision "goes off the rails."
July 29, 2020 at 06:58 PM
5 minute read
A bitterly divided federal appeals court held Wednesday that a human resources worker at Kia's plant in Georgia can't sue the automaker on claims she was the victim of retaliation for filing a sex discrimination charge.
Judges of the U.S. Court of Appeals for the Eleventh Circuit voted 8-4 and 9-3, on two aspects of law, holding that Kia could fire the HR worker because it believed she was recruiting other workers to sue the company.
Six judges wrote separate opinions across 150 pages, with Judge Elizabeth Branch's majority ruling sharply countering dissents by Judges Beverly Martin and Robin Rosenbaum, who were each joined by Judge Jill Pryor.
"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," Branch wrote. "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 … 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," Branch wrote.
Chief Judge William Pryor, Judge Britt Grant and Senior Judges Gerald Tjoflat, Ed Carnes, Stanley Marcus and Julie Carnes joined the majority decision. Judge Adalberto Jordan concurred in the judgment, and Judge Charles Wilson agreed with the majority on one issue and with the dissenters on another.
Judges Robert Luck, Barbara Lagoa and Andrew Brasher, who took office after last fall's oral argument, did not participate in the decision.
At issue is Andrea Gogel, a human resources director at the company who heard complaints that the company's Korean executives discriminated against women and Americans. When she came to believe she was a victim herself, she filed a complaint with the Equal Employment Opportunity Commission—which soon afterward received two more complaints from Kia employees.
After company executives noticed the same firm—Atlanta's Barrett & Farahany—represented Gogel and two co-workers who filed claims within a month of her, they fired Gogel for violating her job duties, which one executive said was "to prevent lawsuits," not encourage them.
Gogel added a retaliation claim, but in 2016, U.S. District Judge Timothy Batten of the Northern District of Georgia granted Kia's motion for summary judgment. Gogel appealed, and last year an Eleventh Circuit panel agreed with Batten on tossing the gender and national origin claims, but it split 2-1 in favor of reinstating Gogel's retaliation claim.
The full court then reheard the case last fall, with Martin, who wrote the panel decision favoring Gogel, and Rosenbaum sparring with Judge Julie Carnes, who wrote the dissent favoring Kia.
On Wednesday, Martin wrote, "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 13th judge refers to a visiting judge who sat on the initial panel.)
"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," she added.
Chief Judge Pryor responded directly to Martin in a separate concurrence, noting that the score of judge votes was heavily against her position.
"So instead of making the absence of a jury question 'improbable,'" he wrote, "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."
In her dissent, Rosenbaum said the majority opinion "recognizes a valid concern that employers legitimately demand employee loyalty where those employers attempt in good faith to comply with Title VII."
But, she added, the majority "goes off the rails when it ignores the rest of what our precedent requires; that is, today's ruling effectively immunizes employers' illegitimate demands for loyalty when those employers consistently discriminate and retaliate against their employees and obstruct any efforts to comply with Title VII."
The lead lawyer for Kia, Jonathan Martin, said in an email, "Our client is pleased with the decision, and we thank the court for their thoughtful and thorough analysis of the legal issues and the record. We also wish to acknowledge our gratitude to the United States Chamber of Commerce and the Global Automakers Inc. and their excellent counsel for their insightful amicus briefs."
Meredith Carter, who, with Lisa Lambert, represents Gogel, said they were still absorbing the opinion.
"We're obviously disappointed," she said. "We're concerned for all workers in the Eleventh Circuit and for anyone in HR positions."
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