Korean Carmaker Outpowers the Opposition 

Two weeks ago, in a controversial, bitterly divided decision, a federal appellate court held that a Georgia automaker’s decision to fire an HR representative, after it had suspected her of recruiting another employee to sue the Company, was lawful and nonretaliatory.

Facts

In 2010, Kia Motors Manufacturing Georgia (“Kia”), a Korean automobile manufacturer, employed Andrea Gogel as Team Relations Department Manager at its West Point, Georgia plant. As a key member of the HR team, Gogel’s position was highly sensitive and critical to maintaining the Company’s employee relations. Gogel was directly responsible for investigating and attempting to internally resolve workplace complaints, and where possible, avoid externalizing those complaints and having them evolve into EEOC charges or lawsuits. 

In her role, Gogel frequently expressed her personal dissatisfaction with Kia’s employment practices, claiming management to harbor antiquated views toward women. In turn, Gogel reportedly exhibited a strong animus against the Korean management structure and “hated the Koreans.” After being passed over for promotion, on November 10, 2010, Gogel lodged an EEOC charge against Kia, claiming gender and national origin discrimination. A week later, Gogel’s colleague, HR Manger Robert Tyler, filed a charge of discrimination and retaliation. And, merely three weeks later, another employee, Diana Ledbetter, filed a charge of discrimination. 

After receiving three EEOC charges in such close proximity, Kia discovered that Gogel, Tyler, and Ledbetter were represented by the same law firm. Kia also learned that Gogel and Ledbetter frequently met behind closed doors for several hours, several times per week. Based on these observations, among others, Kia became concerned that Gogel and Tyler had recruited and encouraged Ledbetter to file a charge against the Company, further believing that Gogel was spearheading a campaign against the Company. Kia determined that Gogel’s suspected actions created a conflict of interest that rendered her ineffective in her role. As a result, Kia terminated Gogel in January 2011, two months after she filed her charge.

Legal Analysis

Gogel eventually brought a federal lawsuit against Kia, alleging discrimination and contending that she was terminated in retaliation for filing a charge. The trial court dismissed the entirety of Gogel’s claims, finding that Kia had fired her for a legitimate reason – her solicitation of a subordinate to file an EEOC charge against the Company, in contravention of her job responsibilities. Gogel appealed the decision to the Eleventh Circuit Court of Appeals (the highest federal court in Georgia, Florida, and Alabama).

As a matter of law, an employer is prohibited from retaliating against an employee because that employee has opposed an unlawful employment practice. This principle is more commonly referred to as the “opposition clause.” On appeal, the Gogel Court was tasked with deciding whether, in light of Gogel’s special role and responsibilities as Team Relations Manager, her recruitment of a fellow employee to sue Kia constituted protected conduct under the opposition clause. And, if Gogel’s actions were deemed to be protected conduct under the opposition clause, the Court had to opine whether her termination was retaliatory and thus unlawful.

In conducting its analysis, the Gogel Court observed that, in the context of a retaliation claim, an employee’s oppositional conduct is not protected if the means by which the employee has chosen to express her opposition so interferes with the performance of her job, such that it renders her ineffective in her role. Here, the Court concluded that Kia had reasonably believed in good faith that Gogel had abandoned her responsibility to attempt resolution of an employee’s internal complaint when she instead solicited and encouraged that employee to sue the Company. 

Thus, as the Court surmised, Gogel’s actions unreasonably conflicted with the core objectives of her sensitive and highly important position, thereby creating questions of loyalty and effectiveness, and prompting Kia to conclude that it could no longer trust Gogel to do her job. Thus, Gogel’s actions were not protected under the opposition clause because they unreasonably interfered with her job duties. As a result, Kia did not engage in unlawful retaliation when it terminated Gogel for encouraging another employee to bring legal action against the Company.

Takeaway for Employers

The majority of the Gogel Court recognized that employers have a legitimate expectation of effectiveness and loyalty from their human resource professionals, particularly those charged with investigating and resolving workplace complaints. When an HR representative deviates from that role and undertakes unreasonable means – such as aiding and abetting other employees to sue the employer – the employee is not protected from termination. 

However, a number of dissenting judges were troubled that Gogel had filed her own charge of discrimination, opining that, while Gogel’s conduct may not have been protected under the opposition clause, by filing her own charge on her own behalf, she may have engaged in protected conduct under the “participation clause” (an alternative component to the opposition clause). This observation signals that Gogel may have been able to demonstrate retaliation by the fact that she participated in filing a charge on her own behalf and was terminated soon thereafter. 

Given the diametrically opposed viewpoints expressed in this 100+ page decision, future cases bearing similar facts and circumstances will be shrewdly analyzed, bringing close calls and uncertain outcomes. Your mileage may vary. 

The takeaway here is that, in less obvious scenarios, employers should proceed with extreme caution and diligence when taking adverse action against managerial employees who raise internal complaints on their own behalf, while simultaneously championing the cause of other subordinates – as the employer may face a retaliation claim brought under both the opposition and participation clauses. 

Chris Butler is an employment lawyer with Christopher Butler LLC in Atlanta and may be reached at 404.295.1985 or cbutlerlaw@outlook.com.