No. 12-12777
____________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and MELISSA POSTEN,
Plaintiff-Intervenor-Appellant,
v.
JIUDICY, INC. d/b/a LABOR FINDERS and VICTOR MORROW,
Defendants-Appellees.
____________________________________________
On Appeal from the United States District Court
for the Northern District of Georgia, No. 2:09-cv-163-WCO-SSC
Hon. William C. O’Kelley, Senior United States District Judge
____________________________________________
REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT
____________________________________________
P. DAVID LOPEZ ERIC A. HARRINGTON
General Counsel Attorney
CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT
Acting Associate General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE
Washington, DC 20507
(202) 663-4716
eric.harrington@eeoc.gov
TABLE OF RECORD REFERENCES IN THE BRIEF
I. The EEOC demonstrated a prima facie case of retaliation.
B. The EEOC has demonstrated the requisite causal connection.
B. A reasonable factfinder could conclude that Posten believed that Morrow made the harassing calls.
C. A reasonable factfinder could conclude that Jiudicy’s investigation was a sham.
III. Total System is no longer good law and nothing in Jiudicy’s brief demonstrates the contrary.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).......................... 4, 26
Burlington Northern & Sante Fe Railway Co. v. White,
.... 548 U.S. 53 (2006)..................................................................................... 26
Butler v. Alabama Department of Transportation,
.... 421 F.3d 734 (11th Cir. 2008)................................................................. 4, 5
Cleveland v. Home Shopping Network, Inc.,
.... 369 F.3d 1189 (11th Cir. 2004)........................................................... 22, 23
*Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., 555 U.S. 271 (2009)............................................................................................ 26, 28
*EEOC v. Total System Services, Inc., 221 F.3d 1171 (11th Cir. 2000).... passim
Faragher v. Boca Raton, 524 U.S. 775 (1998)............................................ 4, 26
Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).................................. 10
*Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734 (8th Cir. 2005) 27
In re Emp’t Discrimination Litig. Against State of Ala.,
.... 198 F.3d 1305 (11th Cir. 1999)................................................................. 26
Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004)......................................... 5
Johnson v. Perkins Restaurant, 815 F.2d 1220 (8th Cir. 1987)....................... 29
Leach v. Pan Am. World Airways, 842 F.2d 285 (11th Cir. 1988).................. 26
*Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766 (7th Cir. 2008)............... 4
Physician Care, P.C. v. Caremark, Inc.,
.... 16 F. Supp. 2d 806 (E.D. Mich. 1998)....................................................... 10
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)................... 21
Scarbrough v. Bd. of Trustees Fla. A&M Univ., 504 F.3d 1220 (11th Cir. 2007) 22
Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011)................. 26
.... 204 Ga. App. 428, 419 S.E.2d 507 (Ga. App. 1992)................................ 10
Statutes
Ga. Code Ann. § 17-7-95.......................................................................... 10, 11
42 U.S.C. § 2000e-3(a)............................................................................. passim
47 U.S.C. § 223(a)(1)(D)................................................................................ 12
Rules & Regulations
Federal Rule of Evidence 410.................................................................... 10, 11
Other Authorities
New Oxford American English Dictionary (2010).......................................... 24
Elizabeth Prileau, Seductress (2003).............................................................. 5, 6
Richard Wright, The Moral Animal (1994)................................................... 5, 6
Vault, Office Romance Survey (2010)............................................................ 18
Brief Page # Docket #
5 EEOC and Posten’s Statement of Material Facts 105-2
Presenting Genuine Issues
5, 9, 23–25 Deposition of Melissa Posten 105-3
5, 9 Transcript of Hearing before Magistrate, State of 105-4
Georgia, Part I
7–8, 13–17, Depostion of Gary Johnson 105-9
21, 24
8, 9, 13–16, Depostion of Joseph Beresford 105-8
18–19, 21, 24
8, 19–20 Depostion of Anthony Giudicy 105-11
9–10 December 17, 2007 Cumming Police Department 105-7
Incident Report
10 Final Disposition of Victor Morrow’s State 105-16
Disorderly Conduct Charge
11 Plaintiff EEOC’s Notice to take Morrow’s Deposition 75
11 Order sent to Victor Morrow returned as undeliverable 85
11 Order sent to Victor Morrow returned as undeliverable 86
11 Order sent to Victor Morrow returned as undeliverable 90
11 Order sent to Victor Morrow returned as undeliverable 94
11 Order sent to Victor Morrow returned as undeliverable 103
11 Order sent to Victor Morrow returned as undeliverable 125
11 Order sent to Victor Morrow returned as undeliverable 137
11 Order sent to Victor Morrow returned as undeliverable 139
16–17, 19–20 Depostion of Fitzroy Pinnock 105-15
21–22 District Court Decision Granting Summary 134
Judgment Motion
25 Magistrate’s Report and Recommendation 126
This case is the not the stuff of summary judgment. Jiudicy must demonstrate the absence of disputed material facts. But its brief demonstrates not their absence but their abundance. After a 15-page fact section, Jiudicy devotes over 44 pages of argument (pages 23 through 67) to disputing the facts as conveyed in the EEOC’s brief.
At bottom, this case turns on what story a factfinder accepts. If Total System remains good law, the question is: did Johnson, Giudicy, and Beresford conclude that Posten falsely accused Morrow before any investigation and then set out on a bad-faith investigation to find reasons to terminate her? If so, Jiudicy is liable for retaliation.
If Total System is no longer good law, the question becomes: did Posten believe in good faith that Morrow made harassing calls and did Jiudicy fire her because it believed—wrongly—that she made it up? If so, Jiudicy is liable for retaliation.
Viewing the facts in the light most favorable to the EEOC, a reasonable factfinder could answer yes to both questions, and thus, this Court should reverse the summary judgment grant.
On the other hand, to believe Jiudicy’s contention that Posten fabricated her complaint and that its investigation uncovered this, one would have to conclude that Posten persuaded a man—a co-conspirator—to call her phone and make masturbatory noises on at least two different occasions. She then played one of those voicemails for Morrow and others, including Beresford. She and the co-conspirator timed the voicemail to correspond nearly exactly with Morrow’s calls. She had this same co-conspirator call her during lunch with her fiancé. She feigned being frightened by the calls on several occasions and filed two false police reports. In her first call to the police, she reserved accusing Morrow—her true target—but suggested someone else.
All this, according to Jiudicy, was a scheme to punish Morrow for refusing to allow her to bring her children to work or for reprimanding her for attendance problems. Morrow, an innocent man, pled nolo contendere to a disorderly conduct charge stemming from this elaborate ruse. But Posten’s scheme was discovered through the good-faith investigation of three men—one who casually invoked the term “slut” in a deposition, another who had been “falsely” accused of sexual harassment himself, and yet another who was uncomfortable from the beginning just being in the same room with Posten. They uncovered this scheme not by discovering the co-conspirator or some other part of it, but by talking to Posten’s former lover, who—as all recognize—had absolutely nothing to do with the calls and told a story not of Posten’s deception, but of shared anguish and regret. Moreover, during their 48-hour investigation, they discovered six additional legitimate reasons to fire Posten, none of which have anything to do with her sexual harassment complaint.
A jury would not be compelled to accept Jiudicy’s extraordinary version of the events. Thus, summary judgment was inappropriate.
Jiudicy argues that even if Morrow made anonymous, masturbation-filled calls to an employee who—as he knew—was alone at a publicly open office, Jiudicy could lawfully fire her for complaining because her complaints did not constitute protected activity. To Jiudicy, the phone calls were not bad enough yet—they “compris[ed] approximately 2.5 total minutes of call time, on three separate days, across two weeks where many of the calls either went to voicemail, proved to be inaudible, on [sic] involved boorish sexual comments.”[1] Jiudicy Br. 25.
While this approach might undermine a hostile environment claim, it is beside the point when assessing the reasonableness of an employee’s response to sexual harassment. Otherwise, employees are placed on a knife’s edge: complain too early and they can be fired; complain too late and they have failed to take advantage of the employer’s remedial policies, and as such, under Faragher and Ellerth, the employer cannot be held liable for the harassment. See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). To effectuate the purposes of Title VII’s anti-retaliation provision, therefore, the objective reasonableness of Posten’s belief “is not assessed by examining whether the conduct was persistent or severe enough to be unlawful, but merely whether it falls into the category of conduct prohibited by the statute.” Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008).
There can be little doubt that intimidating, anonymous calls which consist of heavy breathing, masturbatory noises, and requests to perform oral sex are the type of conduct that if pervasive enough would constitute unlawful harassment. Yet Jiudicy relies on Butler v. Alabama Department of Transportation, 536 F.3d 1209, 1213 (11th Cir. 2008), to argue that since “complaining about isolated racial epithets does not constitute protected activity, then complaining about isolated sexual phone calls [does not either].” Jiudicy Br. 25–26. Butler presented a very different situation. There, this Court concluded that opposing a racist comment was not protected activity because the comment was uttered by a co-worker, on one occasion, and did not (as the plaintiff conceded) affect her job, and the employee did not complain about the utterance for three months. Butler, 536 F.3d at 1214. Here, the harassing sexual phone calls were from a supervisor, persisted over weeks, occurred on several occasions, and terrified Posten, and she complained about them immediately. R.105-2, at 5; R.105-3, at 20, 47; R.105-4, at 59, 65.
Jiudicy argues that “[e]ven assuming that Posten engaged in protected activity, she cannot allege a proper causal nexus between that activity and her termination.” Jiudicy Br. 26. Yet Jiudicy also concedes that it “deci[ded] to terminate Posten for her false accusation, among other reasons.” Id. 18. This concession satisfies the causation element as a matter of law: her complaint set in motion the process that led to her termination, and thus, her termination and complaint “are not completely unrelated.”[2] Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
“Biobehaviorist [Robert] Wright still warns darkly that the dichotomy between the domestic angel and the quick-trick Jezebel is ‘rooted firmly in the male mind.’” Elizabeth Prioleau, Seductress 8 (2003) (quoting Robert Wright, The Moral Animal 139 (1994)). Regardless of whether such views are actually “rooted firmly in the male mind,” they are rooted firmly in our culture. From the Sirens of Greek mythology, who lured sailors with their music and voices to shipwreck on the coasts, to the biblical Jezebel, who used her feminine wiles to trick her King-husband to convert from Judaism to Baalism and murder the Jewish prophets, to Sharon Stone’s character in Basic Instinct, the archetype of the femme fatale who uses her sexuality to get what she wants, places men under her spell, and eventually uses (or at least attempts to use) her spellbinding powers to destroy men is ubiquitous throughout Western culture.
Jiudicy’s brief and Johnson, Giudicy, and Beresford’s testimony read as an attempt to fit Posten into this archetype. Jiudicy says that Posten has a “penchant for underhanded behavior,” engaged in “manipulative behavior,” “sabotaged” men “with sex-based allegations,” had “psychiatric issues,” and “fabricated her complaint.” Jiudicy Br. 16, 17, 23, 33.
And according to Johnson, Posten was such a Siren. He believed that, “[Posten] encouraged all this alleged misbehavior from at least three individuals, one being Morrow, one being a loan officer from a credit union . . . , and another from Pinnock; and, also, Joe Beresford.” R.105-9, at 22. He agreed when asked “do you think [Posten] encouraged Morrow to make obscene phone calls?” Id. at 22. Posten, according to Johnson, even tried to seduce Beresford during the investigation: “Her behavior as relayed to me—by . . . Beresford and . . . Pinnock [is] that she becomes—how can I put this—unwelcomely friendly physically with folks to the point where Beresford refuses to go back into the office.” Id.
Yet Jiudicy minimizes Johnson’s testimony, arguing that “no evidence exists that Johnson thought that Posten encouraged any calls at the time of the investigation.” Jiudicy Br. 49. According to Jiudicy, “Johnson did not believe that Posten had received any calls” and “only revised his view after a significant (although perhaps inadvertent) misrepresentation in the deposition that Morrow had pled guilty to calling Posten.” Id. at 48. While Jiudicy blames the questioner for Johnson’s testimony, his testimony speaks for itself—he said that he believed that Posten “encouraged all this alleged misbehavior” and never suggested that he first concluded this during his deposition.
Johnson’s “slut” comment also provides an important window into his thinking. While being questioned about Posten’s truthfulness, he volunteered, “Let’s pick any other female. I think she’s a slut. Her partner might just think she’s horny.” R.105-9, at 18. Again, he thought that Posten was a femme fatale who encouraged Morrow’s behavior—some might call that “slutty,” others just “horny” in Johnson’s parlance.
Jiudicy disputes this characterization too, arguing that Johnson’s “salty” invocation of the term “slut” did not intimate that he thought Posten was a slut, as he clarified in response to a leading question from his counsel. Jiudicy Br. 51–52. But a reasonable jury can reject this interpretation and conclude instead that Johnson’s own words better reflect his views.
Beresford also displayed troubling attitudes. He likewise feared Posten’s Siren powers, testifying that he did not feel comfortable interviewing her about Morrow’s calls because “[he] didn’t want to put [him]self in a position of getting in the same boat Victor [Morrow] was. [He] just felt uncomfortable” even though he “didn’t have a reason for it.” R.105-8, at 20.
Giudicy, for his part, claimed to have been a victim of a femme fatale himself. He testified that he had been accused a few years earlier of sexual harassment, but that Johnson concluded that that allegation was “fabricated,” and just a scheme to get Giudicy fired. R.105-11, at 5.
While Jiudicy dismisses Johnson, Beresford, and Giudicy’s bias, arguing instead that Posten made it all up, a jury could interpret the events and the “investigators’” attitudes differently.
Jiudicy argues that “Posten fabricated her complaint against Morrow,” and that “no evidence exists that Morrow made sexually harassing phone calls to Posten.” Jiudicy Br. 24. Both are wrong.
Posten testified that she received anonymous calls filled with masturbatory sounds and sexual requests. Posten’s fiancé also heard one of those calls . R.105-3, at 25; R.105-4, at 10. When Posten checked her phone records, they showed that Morrow had called her during the same times as the harassing calls. R.105-3, at 26. She played one of the voicemails with the masturbatory noises for others, including Beresford and Morrow. Id. at 22. The phone records show that the timestamp on that voicemail correlates (within two minutes) with a call from Morrow, and that no calls occurred between Morrow’s call and the voicemail. R.105-8, at 17. And once Posten identified Morrow as the caller, the calls stopped and never resumed. All this evidences that Morrow was the caller.
Posten told a police officer of the calls, who reported that “[w]hen officer arrived, . . . Posten . . . was in tears and shaking.” R.105-7, at 3. He instructed her “to talk to the Forsyth County magistrate judge about action she might p[u]rsue on Mr. Morrow.” Id. A jury could conclude that the officer believed her and that she was telling the truth, and that Johnson’s reaction to the same story—in their first conversation he threatened to fire her for filing a police report—demonstrates his bad faith.
There is more: Morrow was eventually charged with disorderly conduct for making the calls, and pled nolo contendre. R.105-16, at 2. Jiudicy argues that, under Georgia law, a nolo plea is not an admission of guilt. Jiudicy Br. 38 & n.133. That is not entirely accurate. Under Georgia law “a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.” Ga. Code Ann. § 17-7-95 (emphasis added); see also Fortson v. Hopper, 247 S.E.2d 875, 876–77 (Ga. 1978) (“[A] plea of nolo contendere . . . constitutes a plea of guilty except that it cannot work any civil disqualification upon the defendant.”). But it can be used as an admission in other settings. See Yarbrough v. SAS Sys., Inc., 419 S.E.2d 507, 509 (Ga. App. 1992) (concluding that nolo plea can be used against a plaintiff because “[a nolo plea] is a shield not a sword”). Indeed, in Physician Care, P.C. v. Caremark, Inc., 16 F. Supp. 2d 806, 815–17 (E.D. Mich. 1998), that court allowed a nolo plea to be admitted against another party because the protections the federal analog to Georgia’s nolo rule—Federal Evidence Rule 410—extend solely to “the defendant” who made the plea, not to parties “once removed” like Jiudicy.
Moreover, Jiudicy uses the fact that the EEOC did not depose Morrow to imply that the EEOC feared his testimony. Jiudicy Br. 38 n.134. But, as Jiudicy well knows, the EEOC wanted to depose Morrow and attempted several times to serve a subpoena. R.75; see also R.85, 86, 90, 94, 103, 125, 137, 139.
Nevertheless, according to Jiudicy, its elaborate theory that “Posten alleged a willfully false complaint against Morrow” is not only more plausible than the theory that Morrow made harassing calls, but is so much more plausible that a factfinder, as a matter of law, must conclude that Morrow did not make the calls. Jiudicy Br. 31. But Jiudicy’s own brief shifts from arguing that Morrow made no calls to arguing that Morrow made the calls at the times confirmed by the phone records, but they were not sexual in nature. (Again, Jiudicy’s brief rejects Johnson’s notion that Morrow made the sexually explicit calls but that Posten really invited them.)
Indeed, Beresford and Johnson conceded that the phone records confirmed that Morrow called Posten at the times she said she received harassing calls. But they defended Morrow, not by arguing that he made no calls because he was having dinner, as Morrow asserted, see Jiudicy Br. 12, but by contending that such calls were normal. To Beresford, the calls “didn’t prove anything” even though many of them were in rapid succession. Jiudicy dismisses the record of Morrow’s pattern of repeated calls to Posten’s phone at the time Posten received the harassing calls, as just a normal business practice, Jiudicy Br. 36–37, even though a pattern of repeated calls is not normally the practice of business calls, but is a tell-tale sign of harassing calls, cf. 47 U.S.C. § 223(a)(1)(D) (defining criminal phone harassment as “mak[ing] or caus[ing] the telephone of another or continuously to ring”). Had Jiudicy actually investigated Morrow’s dinner alibi—something it admittedly did not do until much later—as opposed to just believing Morrow, dismissing the phone records, and targeting Posten, it would have realized that the dinner alibi was no alibi at all.
Why then did Jiudicy reject Posten’s straightforward story and evidence and accept instead Morrow’s inconsistent denial? In the EEOC’s view, a jury could conclude that Johnson, Giudicy, and Beresford were biased from the beginning, and engaged not in a good-faith investigation, but one designed to find reasons to remove Posten, the Siren, and protect, in Giudicy’s words, the “good guy” Morrow.
Jiudicy argues that its “multi-step” investigation should preclude the conclusion that it predetermined what happened and then sought facts to support that conclusion. Jiudicy 34–36. But the “steps” listed in Jiudicy’s brief are not inconsistent with a sham investigation.
More important, Jiudicy’s investigation does not eradicate the suspicion that Johnson decided to blame the victim from the start; it reinforces it. Johnson “chewed” Beresford out for not involving him sooner and directed that no one talk to Morrow before he did. R.105-8, at 12. Johnson, after one conversation with Morrow—a man whom he had never met and, as Johnson knew, who had a criminal past—concluded that Morrow could be trusted. R.105-9, at 20–21.
He even invited Morrow to tell him why Posten would make a false accusation. Id. at 27, 29. Once he obtained Morrow’s denial, he decided not that he needed to investigate the denial, but that he “needed to know whether he had any further information that would indicate that this might be a false claim.” Id. at 27.
Neither Johnson nor his investigators investigated Morrow’s background, previous employment, or anything else. R.105-8, at 25. Johnson never talked to the police officers who twice responded to Posten’s calls or to her fiancé, who heard one of the calls and observed Posten’s reactions. R.105-9, at 56.
And when he first called Posten, he threatened to fire her for filing a police report. Id. Johnson dismissed Posten’s allegations, finding her as “less than credible” because she was reluctant to repeat the caller’s language in sufficiently graphic detail—she used the words “private parts” to convey the caller’s words instead of “balls.” Id. at 36.
Johnson did not review Posten’s phone records, and his reasons have been inconsistent or just plain untrue. Yet Jiudicy now claims that Johnson “reviewed Morrow’s phone records, but could not determine whether the calls constituted business calls or harassing calls.” Jiudicy Br. 11. That is inaccurate. Johnson initially testified that he “thought” he reviewed Posten’s phone records, but later claimed that he did not see her records. His testimony:
Q: So you never saw during the time of your investigation anything showing Melissa Posten’s phone calls?
Johnson: That’s correct.
R.105-9, at 32.
Johnson then testified that “we were trying to get a hold of [the records] . . . throughout that investigation, they weren’t available.” Id. at 32–33. That too was untrue. Beresford reviewed them, but when he did, he asserted that the records “do[]n’t prove anything.” R.105-8, at 33. He never checked her phone to determine whether the blocked calls corresponded with Morrow’s calls on her phone records, which he could have done. Id. at 20.
Now Jiudicy claims that Beresford was concerned by the fact that one of the messages indicated that the call was at 5:25 pm while Posten’s phone records indicated the last call from Morrow’s phone came at 5:23 pm. on December 5, 2007. Jiudicy Br. 13. Why a discrepancy of two minutes between the timestamp on the voicemail and the record of Morrow’s calls would mean that Morrow did not call at all is unclear, especially given that no other calls occurred during that time. And, in any event, Beresford took no action to resolve this “discrepancy,” nor did Johnson.
A jury could conclude that Johnson was uninterested in reviewing the records or investigating Morrow—he was interested in investigating Posten.
As Jiudicy’s brief recognizes, the investigation focused not on Posten’s allegation, but on Morrow’s. Jiudicy argues that its investigation revealed that “Posten previously used sex-based allegations to sabotage her Northside supervisor in retribution for his ending their relationship” and because of that, “Labor Finders determined that Posten, as with Pinnock, had attempted to sabotage Morrow for purposes of settling some grudge.” Jiudicy Br. 18, 35–36.
Proving this theory was the point of contacting Pinnock in the first place. Although Johnson claimed they contacted Pinnock to “find out . . . whether or not this guy is, you know, making [the] phone calls,” R.105-9, at 20, that was untrue. Beresford testified that he contacted Pinnock not to determine whether Pinnock was the harasser, but to investigate “whether . . . she had some kind of history of bringing false . . . unmerited accusations against another manager.” R.105-8, at 22. Jiudicy claims that “[t]his is not a case where Labor Finders investigated Posten’s past until it found something it could use against her.” Jiudicy Br. 43–44. But Beresford’s testimony contradicts this: “[A]ll I was looking for was to say to my superiors there is another incident out there, it seems that she has done this before.” R.105-8, at 22.
Moreover, Pinncock’s story does not support the hypothesis that Posten had a pattern of making false, sex-based allegations to sabotage men. Pinnock described a relationship that “developed into a friendship that went beyond the boundary of friendship.” R.105-15, at 7. Pinnock worked for a contractor, but he was Posten’s supervisor; she, his subordinate. Id. They eventually engaged in an intimate affair. Pinnock, who was married, broke off the relationship after about a month—after his wife learned of the affair and demanded its end. Id. at 9–10.
Posten, according to Pinnock, urged him to continue it. Id. This led to rancor between the two of them. Posten was upset and heartbroken that Pinnock had ended the relationship. Id. at 11. As Pinnock testified, “We both were [hurt]. . . . [I]t never should have happened. You know, but we kind of allowed our emotions to get the best of us.” Id.
Because of this difficulty—she was having trouble functioning at work, as was Pinnock—Posten told her superiors about their relationship. Id. at 10. As Pinnock testified, “[The] relationship ended right around August somewhere. And between that time it was very hard from a work standpoint seeing her every day, especially with the letters and the cards and the guilt and the emotion.” Id. at 12. But she told the truth throughout, and Pinnock supports that assertion. As Pinnock made clear, Posten never filed a complaint, much less a false one, against him. Id. at 13. When asked whether he lied to Beresford or Giudicy, he testified, “There was nothing to lie about. We had a personal relationship and because the relationship ended she basically, you know, she did what she had to do. There was nothing to lie about.” Id. at 23.
Pinnock was ultimately transferred not because Posten falsely accused him, but because the contractor he worked for, Morrison, had an anti-fraternization policy with client employees, such as Posten. R.105-15, at 6, 13. Pinnock transferred at a lower position but eventually worked his way back up to the position he held at Northside. R.105-15, at 6. Their communications ceased and Pinnock did not see or hear from Posten again until he was subpoenaed to testify in Morrow’s criminal proceeding. Id.
But under Jiudicy’s view, Posten and Pinnock’s affair and their subsequent difficulty demonstrates a “penchant for underhanded behavior toward her supervisors . . . and the inescapable appearance of bad faith.” Jiudicy Br. 23–24. A workplace affair that sours and subsequently results in workplace difficulty does not demonstrate “underhanded behavior” or the “inescapable appearance of bad faith” to a good-faith observer. A recent survey, for example, states that nearly 60% of respondents have engaged in some form of workplace romance. Vault, Office Romance Survey 2010, available at http://blogs.vault.com/blog/workplace-issues/office-romance-survey-2010. And, as one of those surveyed cautioned, “If it doesn’t work out, no one wants to have to face the person if there was an awkward or somewhat bad break-up.” Id.
Moreover, much of the story Beresford and Giudicy claim Pinnock told them was denied by Pinnock, which means that Beresford and Giudicy simply heard what they wanted to hear, or even worse, they made it up. Yet Jiudicy argues that Beresford’s and Pinnock’s testimony are “materially similar.” Jiudicy Br. 41.
To be sure, there are some similarities in their testimony—that Pinnock told Beresford of the affair and the subsequent fallout. But the material dissimilarities undermine Jiudicy’s contention that it operated in good faith. Beresford claims Pinnock said that:
· Posten falsely accused him of “sex harrassment,” but that Northside concluded that the accusation was “unfounded,” but he was forced to leave and Posten “was dismissed for bringing false allegations.” R.105-8, at 24.
· Pinnock “call[ed] Labor Finders looking for [Posten].” Id. at 23.
· When Beresford told him that he was investigating an incident involving Posten and another employee, Pinnock responded immediately with, “[H]e didn’t do it . . . whatever it is he didn’t do it.” Id. at 22–23.
But Pinnock denied all that, testifying that:
· He “never said that” Posten had filed a sexual harassment complaint against him, or anyone else. R.105-15, at 17.
· He did not tell Beresford that she was terminated for making false accusations; he never knew why she left. Id. at 12.
· Beresford never even asked him whether Pinnock made the harassing calls, and in any event, Pinnock denied calling her altogether. Id. at 15.
· Pinnock did not say “whatever it is he didn’t do it.” Id. at 24–25.
Although Pinnock did discuss Posten’s mental health with Beresford, he did so because Beresford mostly focused on that. So Jiudicy’s argument that Beresford focused not on “one single aspect” which led to an unanticipated discussion of Posten’s mental health is not supported by the record. Jiudicy Br. 44. Instead, as Pinnock made clear, Beresford dug for information about her mental health. He testified: “Most of the questions w[ere] in regard to her behavior, her mental state . . . did she have problems, is she on medications.” R.105-15, at 15. Beresford asked him whether “she was emotionally stable, stuff like that . . . .” Id.
Pinnock’s testimony also contradicts Giudicy’s account. But Jiudicy makes no effort to argue that Pinnock’s and Giudicy’s testimony are “materially similar.” Giudicy testified
· that Johnson directed him to follow up with Pinnock to “find out if maybe [Pinnock] was the one making the calls” and that Pinnock told him that he had called Posten at the Labor Finders’s office “out of being concerned for her”;
· that Posten had falsely accused him and other employees of sexual harassment, and “even made sexual harassment claims against customers in the cafeteria . . . not only people that worked in the cafeteria, but actual customers.” R.105-11, at 23, 24, 85.
But Pinnock contradicted all this too. He testified that
· Giudicy never asked Pinnock whether he made the harassing calls; Pinnock denied calling Posten, stating that he had had no post-Northside contact with her whatsoever; and
· He “never said” that Posten had filed a sexual harassment complaint against him, or anyone else, and had no knowledge of any complaints made by Posten. R.105-15, at 13, 17, 18.
Moreover, Pinnock’s testimony supports the notion that Guidicy arrived not with an open mind but had already decided to protect Morrow and fire Posten. Pinnock testified that the conversation lasted only five minutes and Giudicy mostly talked about his desire to protect Morrow. To Giudicy, Morrow was a “good guy,” whom he did not “want to see anything bad happen to.” R.105-11, at 14, 18–19. Posten was someone who “used to work for them.” Id. at 15.
The litany of shifting reasons for Posten’s termination provides the final proof that the investigation’s purpose was to find a reason to fire her. See Jiudicy Br. 53–67.
Jiudicy does not challenge the EEOC’s contention that this reason is rebutted because Johnson admitted that he did not really believe it either—he testified that Posten never refused to talk to him. R.105-9, at 42–43. And Beresford likewise agreed that Posten cooperated during the investigation. R.105-8, at 26.
But Jiudicy argues that “a difference of opinion or even an issue of fact as to whether Posten cooperated in the investigation of her complaint does not give rise to an inference of retaliatory animus.” Jiudicy Br. 63 (quoting R.134, at 25). That is the wrong standard. The Supreme Court has specifically rejected such a “pretext-plus” standard, and the district court erred in applying it. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146, 120 S. Ct. 2097, 2108 (2000). Therefore, to rebut a legitimate non-discriminatory reason, the plaintiff only must rebut the reason, and not provide additional evidence of retaliatory animus, because “the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Id.
The EEOC argued in its opening brief that this is not a legitimate reason to fire an employee. Jiudicy argues that it is a legitimate reason to fire Posten because “given Labor Finders’ good faith belief that Posten fabricated her claim, it is no great leap to determine that the law does not require, and likely forbids, an employer to stand idly by while one employee continues a bad faith campaign of retribution against a co-employee.” Jiudicy Br. 55. The fact remains that “[a]ccepting [Jiudicy’s] rationale would, for example, permit the termination of an employee who reported a rape by a supervisor to the police,” if the employer disbelieved the rape victim. See Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220 (11th Cir. 2007); see also Jiudicy Br. 54 n.162 (attempting to distinguish Butler on the ground that the employer in that case did not disbelieve the allegation). But this Court has made clear: reporting criminal activity is a protected activity, especially when it is “intertwined and interrelated with alleged sexual harassment.” See Scarbrough, 504 F.3d at 1222.
The EEOC argued, as the district court recognized, R.134, at 25, that this reason was rebutted, and Jiudicy does not contest this.
The termination notice says that Jiudicy fired Posten for “falsely accusing a loan consultant of making harassing telephone calls.” Jiudicy, like Johnson, argues that that meant something completely different—that Johnson believed that Posten lied about filing a police report on December 5. Jiudicy Br. 63. But that is not the reason given in the notice. This reason is rebutted, therefore, because “shifting reasons given by [the decisionmaker] [would] allow[] [a] jury to find [Johnson’s] explanation unworthy of credence.” See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194–95 (11th Cir. 2004).
Moreover, these rationales are inconsistent: if she did not file a police report on December 5, then she did not falsely accuse a loan consultant. Johnson’s story makes no sense and Jiudicy’s attempt to rehabilitate his testimony fails again.
Jiudicy contends that “[i]t is undisputed that Labor Finders found the medication, so the only two possibilities are that it belonged to Posten or it did not.” Jiudicy Br. 56. That is incorrect. As the EEOC made clear, “Taking the facts in the light most favorable to the EEOC, the court must conclude that there were no drugs in her desk.” EEOC Br. 55.
There is no evidence beyond Beresford and Johnson’s testimony—which a factfinder can reject—that there was any medication at all. For her part, Posten denied taking any medications. R.105-3, at 50. If Posten’s prescription drugs really were in her desk drawer, the evidence would be obvious: there would be a prescription bottle with Posten’s name on it. Yet Jiudicy has never produced such a bottle, nor did Beresford even testify that he saw her name on the label.
That Beresford and Johnson cannot keep their story straight also supports the conclusions that there was no prescription and the desk rummaging was a pretext. Johnson testified that he (not Beresford) found medication in her desk, and from that concluded that she must have been taking medication when she applied for the job several months earlier. He testified, “I found medication in her desk drawer.” R.105-9, at 41. Like much of Johnson’s testimony, Jiudicy argues that his words mean something different from their plain meaning: “[Johnson’s claim to have found the drugs] is, at worst, an instance of Johnson misspeaking, or speaking broadly as the individual in charge of the investigation.” Jiudicy Br. 57. A factfinder does not have to accept Jiudicy’s characterization—Johnson’s words speak for themselves.
Jiudicy argues that “Posten absconded with her personnel file.” Jiudicy Br. 58. But Posten of course did not “leave hurriedly and secretly” with her file.[3] She came to the office every day until she was fired. Perhaps Jiudicy meant that she stole the file. But there is simply no evidence, beyond Johnson’s bare assertion, that she took a file or that any file was missing. Beresford—the person in Cummings (Johnson was in Tampa)—testified that Posten’s personnel file was not even available to Posten—it was kept in a locked file cabinet in Beresford’s office—and that he personally reviewed it and did not recall anything missing from the file. R.105-8, at 25, 29, 34. Posten likewise denied removing any documents. R.105-3, at 37. Even Johnson admitted that he reviewed her local file and has no knowledge that anything was actually removed from it. R.105-9, at 28. Like much of his testimony, he also said the opposite, claiming that he was sure it was gone. Jiudicy Br. 62. But a factfinder does not have to accept the most favorable of his inconsistencies. Instead, the inconsistencies themselves evince his mendacity. A factfinder could conclude that Johnson just made up this reason to support Posten’s termination.
Even Johnson’s reasons why this is terminable make no sense—he was concerned about Posten taking “sensitive information” but the only “sensitive information” in her personnel file is her own. See EEOC Br. 56. But to be clear, the EEOC does not, as Jiudicy argues, “quarrel[] with Johnson’s rationale for being upset about the file,” Jiudicy Br. 60; the EEOC quarrels with his honesty.
The magistrate judge put it well, “Because of the factual disputes and inconsistencies surrounding the investigation, . . . a jury must decide whether each of the reasons set forth in Johnson’s termination notice was a pretext and whether Defendant terminated Posten in retaliation for complaining about Morrow’s alleged harassment.” R.126, at 39–40.
Jiudicy does not respond to the EEOC’s argument that the rationales of Thompson v. North American Stainless, LP, 562 U.S. __, 131 S. Ct. 863 (2011), Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006), and Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 129 S. Ct. 846 (2009), substantially undercut Total System. Instead, Jiudicy argues that those cases are distinguishable because they did not explicitly overrule Total System. Jiudicy Br. 71–77. But that is not the EEOC’s argument. As this Court has explained, “When the rationale of our earlier cases is substantially undercut, we are not only free but required to revisit the issue involved.” See Leach v. Pan Am. World Airways, 842 F.2d 285, 286, 288 (11th Cir. 1988); see also In re Emp’t Discrimination Litig. Against State of Ala., 198 F.3d 1305, 1319 (11th Cir. 1999) (same).
The Supreme Court has made clear that: (1) the legality of an adverse employment action turns on whether the action would dissuade a reasonable worker from complaining about unlawful discrimination; (2) the antiretaliation provision must be construed in a way that promotes Faragher and Ellerth’s reporting regime; and (3) a broad construction of the antiretaliation provision is needed to do so. EEOC Br. 29–36. Total System’s rule cannot be squared with those mandates, and Jiudicy does not attempt to reconcile them.
Moroever, Jiudicy’s characterization of the EEOC’s rule is also wrong. “[T]he EEOC advocates in its brief for a workplace summary-judgment standard where employers must construe all conflicts in evidence in favor of a complaining employee.” Jiudicy Br. 32. The EEOC’s rule is that an employer is liable if an employee engages in protected activity and an employer’s mistake of fact about the activity will not save it from liability. If, however, a factfinder determines that Posten lied about the calls, then Jiudicy would not be liable, regardless of whether it construed all conflicts in Posten’s favor.
The EEOC’s fallback rule is even more generous to employers: An employer’s mistake of fact can insulate it from liability but only if the employer relied on an unbiased investigation which resulted in independently verified conclusions—which plainly did not occur here. See EEOC Br. 37–38.
On the other hand, as the Eight Circuit has noted, Jiudicy’s proposed rule places employees on a knife’s edge and risks undermining the antiretaliation regime: “It cannot be the case that any employee who files a Title VII claim and is disbelieved by his or her employer can be legitimately fired. If such were the case, every employee could be deterred from filing their action and the purposes of Title VII in regards to sexual harassment would be defeated.” Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 740 (8th Cir. 2005).
The best Jiudicy offers to respond to this truism is its belief that “[i]f anything, fear that an employer, via investigation, will not only uncover falsehoods in a discrimination/harassment claim, but be free to discipline employees for such behavior can only encourage employees to be truthful. This will only further Title VII’s aims of uncovering and remediating actual claims of discrimination/harassment.” Jiudicy Br. 76–77. How allowing employers to fire employees who it wrongly disbelieves encourages truthful people to come forward about discrimination—which the Supreme Court has made clear is the purpose of the antiretalition provisions—is inexplicable. Employees refrain from complaining because they fear that they and not the harasser will be the target. “This is no imaginary horrible,” the Supreme Court has stated, “given the documented indications that fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Crawford, 555 U.S. at 279, 129 S. Ct. at 852 (internal citations, quotations, and brackets omitted).
Yet Jiudicy argues that it is the EEOC’s proposed rule that places employers on a knife’s edge: “the EEOC’s proposed standard forces the employer into a conundrum when two employees tell diametrically opposed stories; the employer is not free to disbelieve or terminate either employee without bearing the risk of Title VII liability if the employer fires an employee who did not actually lie, but if it fires the harassing employee it risks a Title VII suit from that employee.” Jiudicy Br. 79.
Four responses: First, Jiudicy did not have to fire either, and certainly did not have to fire Posten so hastily. Second, firing someone for sexual harassment is a legitimate, nondiscriminatory reason—such a termination, had it occurred, would have had nothing to do with Morrow’s race. See, e.g., Johnson v. Perkins Rests., Inc., 815 F.2d 1220, 1221 (8th Cir. 1987) (affirming judgment in age discrimination case because plaintiff was fired for sexual harassment the day after he kissed a co-worker). Indeed, Jiudicy’s defense to a suit from Morrow at this point would be much stronger than its defense to a suit from Posten.
Third, the Total System rule does not even deliver on the upside it promises. The Court reasoned that its good-faith rule would prevent “second guessing” of employer’s good faith decisions. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1175 (11th Cir. 2000). But the facts of a particular case will determine whether the employer acted in good faith, and such disputes are often resolved after extensive litigation and discovery. The rule does not operate to insulate employers who claim to have acted in good faith from suit—it merely changes the disputed questions in such a suit.
Fourth, the Total System rule invites bad behavior, and Jiudicy does not respond to this. It encourages employers to target the accuser, as happened here, and this concern—unlike Jiudicy’s speculation that the Total System rule actually supports the reporting regime—has been well-documented. As noted in the EEOC’s opening brief, the practice of targeting women who complain of harassment has become so commonplace that “[e]mployment lawyers even have an expression for it: the ‘nuts and sluts’ defense.” See EEOC Br. 34.
As discussed in the EEOC’s opening brief, this Court should reexamine Total System. But because a factfinder can conclude that Jiudicy’s investigation was a sham, such a reexamination is not necessary to reverse the lower court.
As Jiudicy’s brief demonstrates, this case is replete with material, factual disputes. The EEOC requests that this Court reverse the summary judgment grant and allow a factfinder to resolve them.
Respectfully submitted,
P. DAVID LOPEZ
General Counsel ERIC A. HARRINGTON
Attorney
CAROLYN L. WHEELER
Acting Associate General Counsel U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE
Washington, DC 20507
(202) 663-4716
eric.harrington@eeoc.gov
I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B) and 11th Cir. R. 32-4. This brief contains 6,956 words.
ERIC A. HARRINGTON
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE
Washington, DC 20507
(202) 663-4716
eric.harrington@eeoc.gov
I, Eric A. Harrington, hereby certify that I filed this brief with the Court by sending, this 22d day of October, 2012, via United Parcel Service, the original plus six copies and by uploading an electronic version of the brief via this Court’s Case Management/Electronic Case Filing System (CM/ECF).
I also certify that I have served one copy of the brief, this 22d day of October, 2012, by first-class mail, postage pre-paid, and one electronic version of the brief by electronic mail, to the following counsel of record:
Counsel for Plaintiff-Appellant-Intervenor, Melissa Posten
Benjamin F. Barrett Jr.
Barrett & Farahany, LLP
1100 Peachtree St NE Ste 500
Atlanta, GA 30309
ben@bf-llp.com
Counsel for Defendants-Appellees, Jiudicy, Inc. d/b/a/ Labor Finders and Victor Morrow
Alex M. Barfield
Hawkins Parnell Thackston & Young, LLP
303 Peachtree St NE Ste 4000
Atlanta, GA 30308
abarfield@hptylaw.com
ERIC A. HARRINGTON
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, NE
Washington, DC 20507
(202) 663-4716
eric.harrington@eeoc.gov
[1] As discussed below, there is abundant evidence supporting the notion that Morrow made the calls and that Posten believed that he did. See subpart II.B.
[2] The causation element is also satisfied because of the “close temporal prox-imity”—less than three days—between Posten’s complaint and her termination. EEOC Br. 27.
[3] See New Oxford American Dictionary (2010).