Appellate Judges

En Banc Granted at Eleventh Circuit in Order to Devastate Kia Employees Retaliation Claims

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.

Trump Judges Cast Key Votes to Uphold Summary Judgment Against Woman’s Retaliation Lawsuit

Originally Published: August 14, 2020 | Republished by LIT: Nov. 16, 2020

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.

The workplace-porn habit of Kia exec Randy Jackson gets unmasked in e-discovery process for retaliation lawsuit brought by former HR manager Andrea Gogel, who apparently was canned for doing her job

Originally Published: Oct. 16, 2019 | Republished by LIT: Nov. 16, 2020

A Kia Motors executive’s workplace-porn habit apparently has been unmasked because of an employment retaliation lawsuit that a former female human-resources employee filed after the company fired her. Ouch!

Memo to big-shot corporate types: If you are going to swap pornography with your buddies in the workplace, don’t fire an employee under dubious circumstances that might lead to a lawsuit and discovery process that could unveil your little secret for the whole world to see.

In fact, the dispute provides a real-world tutorial on how e-discovery works in the modern legal world, with plenty of peril for execs who fire others while engaging in their own workplace misdeeds.

Note: I might have grounds to reinstate my employment/First Amendment lawsuit against UAB — the University of Alabama Board of Trustees — with discovery I was denied the last time by the late crooked federal judge William M. Acker Jr. Such e-discovery could expose unsavory workplace habits from those who unlawfully fired me — and more importantly, it would show Acker, who is now dead, engaged in horrifically corrupt behavior on the bench. More on that in upcoming posts. Did I mention Acker is dead?)

Andrea Gogel

The case of Andrea Gogel v. Kia Motors Manufacturing of Georgia raises significant workplace issues, enough that the entire U.S. 11th Circuit Court of Appeals is set to hear it, with en banc arguments set for Oct. 22.

Gogel is represented by Atlanta-area lawyers Meredith Carter and Lisa Lambert. As for the primary legal issues in Gogel, they are outlined at Daily Report and law,com:

Along with millions of Tellurides, Sorrentos and Optimas, the Kia plant in west Georgia has produced an intricate legal dispute that tests the competing rights of human resources officials and the companies they represent.

The case, set to be argued en banc at the U.S. Court of Appeals for the Eleventh Circuit on Oct. 22, has sparked a debate within the court and drawn the interest of employment lawyers and business groups around the country.

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 Atlanta law firm represented Gogel and two co-workers who filed claims within a month of her, they fired Gogel for violating her job duties. According to the Eleventh Circuit panel decision, one executive said, she was ”paid to prevent lawsuits,” not encourage them.

What was Gogel’s job description? This is from the Outten and Golden law blog:

[Gogel] worked as a Team Relations Manager at Kia’s West Point, Georgia plant. The “overall purpose” of the Team Relations department was to “support an environment of positive team relations.”

Among her duties were “conducted investigations into policy violations, including attendance issues and allegations of harassment or discrimination.”

Between the lines, part of Gogel’s job was to smooth over differences between the American employees and Korean-national management.

Did Gogel essentially get fired for doing her job? That appears to be part of her argument, and it seems to be a strong one. From the EEOC statement on the case:

The record evidence in this case demonstrates that Gogel engaged in protected activity and creates a triable issue as to Gogel’s retaliation claim, particularly in light of testimony from decision-maker Randy Jackson that he fired Gogel for encouraging and assisting another employee in filing an EEOC charge.

That Gogel’s job responsibilities involved managerial and/or equal employment functions does not alter this conclusion.

Indeed, the district court’s narrow focus on this aspect of the record led it to err in analyzing the central issue in this (and any) Title VII case—whether the plaintiff was discriminated against in violation of the statute.

See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983) (“The ‘factual inquiry’ in a Title VII case is ‘whether the defendant intentionally discriminated against the plaintiff.’”).

Here is a summary of Gogel’s procedural path

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 agreed to rehear the case.

The fault lines are delineated between the majority decision by Judge Beverly Martin, who was joined by Senior Judge Diarmuid O’Scannlain of the Ninth Circuit, and the dissent by Senior Judge Julie Carnes of the Eleventh Circuit.

Martin wrote that a 1989 precedent instructed the court to balance the purpose of Title VII and its protection of claimants “against an employer’s legitimate demands for loyalty, cooperation and a generally productive work environment.”

Viewing the facts of the case in light most favorable to Gogel, as required at this stage of a case, Martin held that all Gogel did was provide to a colleague the name of an attorney she was considering hiring for herself.

That activity would be protected activity for anyone who wasn’t in human resources, Martin added, and under these circumstances Gogel was protected, too.

Carnes responded in her dissent that a 1980 precedent held that an employee’s opposition to an employer’s actions—in this case, alleged discrimination—isn’t protected when the means by which she expresses that opposition makes her ineffective at her job.

“It is hard to argue that a high-ranking manager whose job duties include working to resolve employee disputes without litigation can be effective in that position if she instead solicits subordinates to sue the company,” Carnes wrote.

J. Randy Jackson

Perhaps the most entertaining aspect of the case comes courtesy of a Kia executive named J. Randy Jackson.

According to court documents, Jackson was Gogel’s supervisor and the primary decision-maker in Gogel’s firing.

Also, Jackson allegedly made it a habit to swap pornography via his workplace computer, and after being fired, Gogel decided that should be an issue in her lawsuit.

Her efforts to unmask Jackson as a work-place porno guy produced its own separate case, styled Jackson v. Gogel in the Eastern District of Kentucky. Here were the issues considered, from the Jackson opinion (citations omitted):

During discovery, Gogel suggested that Kia include several explicit search terms in their e-discovery process. She explained that she had reason to believe such explicit terms would appear in e-mails:

“For example, we are aware that Randy Jackson circulated offensive pornographic materials on his computer” while employed with Toyota Motor Manufacturing North America, Inc.

Kia adamantly denied the allegations against Jackson, which “”appear[] to have been included solely to harass [him] and compromise his standing with his current employer.”

Gogel then subpoenaed Toyota’s corporate designee to testify at a deposition in Covington, Kentucky.

As you probably can imagine, Jackson squealed like a character in Deliverance upon learning that Gogel was seeking to document his workplace-porn habit. (Note: Jackson died in May 2016, roughly one year after he lost the workplace-porn discovery issue in court.)

Here is how the process played out

The subpoena further required the corporate designee to produce the following documents:

1. J. Randy Jackson’s complete personnel file and/or other files or compilations of documents, including but not limited to all applications for employment, offer letters, performance appraisals, credentials, resumes, commendations, reprimands, warning letters, correspondence relating to employment, resignation letters, and all other documents contained therein for the time period of 1996 through 2003.

2. Any e-mail sent or forwarded by J. Randy Jackson during his employment with Toyota Motor Engineering and Manufacturing North America, Inc. (TEMA), for the period of 1999 through 2003 that was considered offensive, pornographic in nature or sexual in nature, and/or derogatory towards women.

3. The Separation Notice TEMA filed with the Department of Labor regarding the end of J. Randy Jackson’s employment.

4. Any separation agreement or severance agreement between J. Randy Jackson and TEMA.

Here is an example of the kicking and screaming that commenced from Jackson’s side, as part of his effort to quash the subpoena:

In his Objections, Jackson maintains that all of the subpoenaed documents are non-discoverable because they have no relevance to Gogel’s gender discrimination claims. He notes that the requested emails are over a decade old and pertain to his past employment with Toyota.

Although Jackson insists that the emails do not contain sexually explicit material, in the event that they do contain questionable material, he argues that they are still irrelevant because they were sent to a non-employee attorney.

Thus, the emails reveal nothing about his attitude towards female employees.

Jackson also contends that “

[w]hether or not sexual material was sent to a non-employee is not probative of [Gogel’s] claims” because her claims involve an entirely different type of conduct.

Specifically, Gogel bases her gender discrimination claims on Jackson’s alleged failure to promote her and wrongful termination of her employment; there are no allegations of sexual harassment.

Were Jackson’s arguments on target? Not exactly, writes U.S. District Judge David L. Bunning (citations omitted):

Jackson’s argument blurs the line between discoverability and admissibility. . . . While material must be discoverable in order to be admissible at trial, it is not necessarily admissible simply because it is discoverable. Discovery must only be reasonably calculated to lead to the discovery of admissible evidence.

Through these emails, Gogel seeks to discover whether Jackson engaged in inappropriate behavior during his former employment.

She reasons that this information is relevant and discoverable because it illustrates Jackson’s attitude about females in the workplace, which allegedly influenced his decision to terminate her employment.

With this explanation in mind, the Court cannot conclude that the requested documents are not reasonably calculated to lead to the discovery of admissible evidence.

Jackson’s concerns about the age, origin and context of these emails may very well affect their admissibility in later stages of the litigation, but they are not grounds to bar discovery of these documents altogether.

Jackson also insists that this subpoena is intended to harass and annoy him because it was issued just after the parties’ e-discovery dispute.

The Court [finds] that the timing of the subpoena is not inherently suspicious.

As for Jackson’s assertion that releasing these documents will harm his reputation with Kia, the Court finds these concerns to be overstated as well.

As Jackson’s current employer, Kia “already knows — or reasonably should already know — [his] employment record with Toyota.”. Thus, the potential harm to Jackson does not outweigh Gogel’s need for these documents and their relevance to her claims.

Having conducted its in camera review, and after balancing the required factors of relevance, need, confidentiality and harm, the Court concludes that 32 of the 117 pages of email correspondence are discoverable under the applicable standard.

Bottom line: Jackson failed to keep his on-the-job porn habit under wraps.

Will Gogel prevail on her retaliation claim, at least having it revived at the 11th Circuit? We should learn more when oral arguments are heard next week.

A Motion to the Court of Appeals for the Eleventh Circuit Request for ExtraOrdinary Relief; An Answer

A Motion for extraordinary relief, respectfully asking for answers to the pending motions before this honorable court.

The Court of Appeals for the Eleventh Circuit Must be Confused, or Something…

A ruling on a motion, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits. FRAP 27.

Judge Elizabeth Lee ‘Liz’ Branch’s Order Regarding the Rules Pertaining to the CFPB’s Certificate of Interested Persons is Scandalous

Wretchedly, that makes Judge Liz Branch another impartial and bias judge. There is no way it can be interpreted in any other way. It is way too scandalous.

En Banc Granted at Eleventh Circuit in Order to Devastate Kia Employees Retaliation Claims
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