Merritt v. Dillard Paper Co.

• Decision Date: 29 August 1997
• Docket Number: No. 96-6247,96-6247
• Citation: 120 F.3d 1181
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1511, 149 A.L.R. Fed. 761, 71 Empl. Prac. Dec. P 44,977, 11 Fla. L. Weekly Fed. C 475 Harry MERRITT, Plaintiff-Appellant, v. DILLARD PAPER COMPANY, Defendant-Appellee.

Page 1181

120 F.3d 1181

74 Fair Empl.Prac.Cas. (BNA) 1511, 149 A.L.R.

Fed. 761,

71 Empl. Prac. Dec. P 44,977,

11 Fla. L. Weekly Fed. C 475

Harry MERRITT, Plaintiff-Appellant, v. DILLARD PAPER COMPANY, Defendant-Appellee.

No. 96-6247.

United States Court of Appeals,

Eleventh Circuit.

Aug. 29, 1997.

Richard J. Stockham, III, Stockham & Stockham, P.C., Birmingahm, AL, for Plaintiff-Appellant.

William F. Gardner, R. Taylor Abbott, Jr., Cabannis, Johnston, Gardner, Dumas & O'Neal, Birmingham, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, Circuit Judge, and HENDERSON and GIBSON ^*, Senior Circuit Judges.

CARNES, Circuit Judge:

Congress enacted as part of Title VII an anti-retaliation provision that prohibits an employer from taking action against an employee, "because he has ... participated in any manner" in another employee's Title VII proceeding. 42 U.S.C. § 2000e-3(a). At least as we are required to view them at this stage, the facts are that another employee filed a Title VII lawsuit against the employer alleging sexual harassment, and the plaintiff-employee in the present case was fired because he gave deposition testimony in that other lawsuit which was unfavorable to the employer. Those facts would seem to describe a clear cut violation of the anti-retaliation provision, but there is a twist.

The twist is that the plaintiff-employee in this case who was fired for giving the deposition testimony in the other lawsuit was himself one of the sexual harassers, he was opposed to the position of the Title VII plaintiff in the lawsuit in which he gave the deposition testimony, and he did not testify voluntarily. The district court held that these unusual facts took this case outside the scope of the anti-retaliation provision. Faced with the broad and unequivocal language of that provision, we disagree.

I. FACTS AND PROCEDURAL HISTORY

"In reviewing a grant of summary judgment, we view all the evidence in the light most favorable to the party opposing the motion," Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th Cir.1996), in this case Merritt. The "actual" facts, as nearly as our system of justice can determine them, will be decided at trial. For that reason, "what we state as 'facts' in this opinion for purposes of reviewing the ruling[ ] on the summary judgment motion[ ] may not be the actual facts." Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir.1995). "They are, however, the facts for the present purposes, and we set them out below." Id.

Harry Merritt worked as a sales representative at Dillard Paper Company's Birmingham office. By all accounts, the atmosphere of the workplace was not entirely professional and sometimes was downright crude. Employees, both male and female, told off-color jokes and made sexually explicit comments. Banter among employees included profanity, sexual propositions, and comments on sexual prowess. Sexually suggestive cartoons and sexually explicit articles circulated around the office. Merritt participated fully in those activities.

Approximately a year and a half after Janet Moore joined Dillard's Birmingham office as the receptionist, she began complaining to Roland Webb, the vice president and general manager of the Birmingham office, about what she perceived to be sexually harassing activity. Following several complaints from Moore, a meeting of all the men in the office was held in January 1991. Webb told them there had been complaints of sexual harassment in the office and that whoever was involved needed to clean up his act. Despite that warning, Merritt admits to making at least one sexually explicit comment after the meeting.

The month after the January 1991 meeting, Moore filed a charge with the EEOC alleging that she had been subjected to sexual harassment, and she subsequently initiated a Title VII lawsuit claiming hostile environment sexual harassment. Counsel for Dillard took Moore's deposition in that lawsuit in May 1992. In her deposition, Moore testified that five men--Webb, Merritt, and three other salesmen--engaged in a variety of sexually harassing activity, including telling off-color jokes, liberal use of profanity, sexual propositions, and inappropriate and unauthorized touching.

The five alleged harassers also were deposed. No subpoenas were issued to compel their appearance, but Dillard made the men available and told them when and where to show up for their depositions. Merritt's deposition was taken on June 25, 1992. In it Merritt said he could not remember many of the events Moore was complaining about, and he flatly denied that others had occurred. However, Merritt admitted under oath some of the sexually harassing conduct of which Moore complained. He also described Moore as a willing participant in the office's bawdy atmosphere and expressed the opinion that her lawsuit was unfounded.

In January 1993, shortly before trial, Dillard and Moore reached a settlement. After the settlement, Dillard's president, Geoffry Clark, turned his attention to disciplining the five alleged harassers. In order to determine who to discipline and what discipline to impose, Clark read the deposition summaries of all the witnesses in the Moore case (with the exception of Moore's physicians). Clark did not conduct or rely upon any independent investigation of alleged harassment in the Birmingham office, nor did he talk to any of the employees in that office.

Clark decided that the five alleged harassers deserved different levels of discipline. Merritt was terminated. Webb, who had recently been transferred to a Dillard office in North Carolina, was also terminated. One of the other salesmen was suspended for two weeks without pay and was denied an annual salary increase. The other two salesmen received reprimands.

Merritt was terminated on February 11, 1993, when Clark came to Dillard's Birmingham office to inform the four alleged harassers remaining there of his decisions. Clark met with Merritt and explained to Merritt that he was personally embarrassed over the case, and said that if the case had gone to trial, "we would have lost Dillard Paper Company." According to Merritt, Clark further stated: "Your deposition was the most damning to Dillard's case, and you no longer have a place here at Dillard Paper Company."

Following his termination, Merritt filed a charge with the EEOC, alleging that Dillard had retaliated against him because of the deposition testimony he gave in Moore's case. After receiving his right-to-sue letter, Merritt initiated this lawsuit alleging violation of 42 U.S.C. § 2000e-3(a), the anti-retaliation provision of Title VII.

The district court granted summary judgment for Dillard based upon its holding that Title VII's anti-retaliation provision does not protect those who participate in another's case involuntarily and without any intent or desire to assist, as Merritt did in Moore's lawsuit. Alternatively, the court held that even if Merritt's participation in the deposition was protected activity, Dillard was nonetheless entitled to summary judgment. The court reasoned that there was no direct evidence of retaliatory motive, and that any prima facie case of retaliation had been met by Dillard's articulated non-retaliatory motive--firing a sexual harasser--which, the court thought, Merritt had failed to rebut. Merritt appealed.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, using the same legal standard as the district court. See, e.g., Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1374 (11th Cir.1996) (citation omitted).

III. DISCUSSION

A. THE SCOPE OF THE ANTI-RETALIATION PROVISION

The district court did not hold, and Dillard does not contend, that sexual harassers are per se excluded from the scope of 42 U.S.C. § 2000e-3(a), the anti-retaliation provision of Title VII. Instead, the district court stated: "It is entirely conceivable that the day will come when a discriminator or harasser crosses the line from denials with grudging admissions to willing disclosure and assistance and by doing so could be regarded as having participated 'in the process of vindicating civil rights through Title VII.' " However, the district court held that, "[i]t could not rationally be concluded that this plaintiff participated in the process of vindicating Ms. Moore's civil rights," because he did not voluntarily participate, was personally opposed to her position in the lawsuit, and only reluctantly gave answers that were helpful to her side of the case.

An examination of the record bears out the district court's characterization of the nature of Merritt's participation in Moore's lawsuit. Merritt did nothing that assisted Moore in her lawsuit other than give the deposition. He never volunteered to be a witness for Ms. Moore, and he did not voluntarily attend the deposition and testify; his supervisor told him when and where to show up for it. As the district court observed, during Merritt's deposition he was essentially defending himself against Ms. Moore's claims that he was one of the employees who had sexually harassed her. In his deposition in the present case, Merritt stated that he was displeased that Dillard had settled with Ms. Moore, and gave his opinion that he had not violated Dillard's policy against sexual harassment.

In his deposition in Moore's case against Dillard, Merritt also testified that, in his opinion, Ms. Moore had not been sexually harassed. When asked in that deposition if he had made any statements concerning sexual organs or sexual acts to any of the female employees, Merritt first testified that the only thing he could remember saying was "scratch my nuts," which he admitted saying to Moore on a number of occasions. Moore's attorney had to engage in what the district court accurately characterized as "a significant amount of further inquiry" to elicit evidence of additional misconduct by...