Clover v. Total System Services, Inc.

• Decision Date: 27 May 1999
• Docket Number: No. 97-9229,97-9229
• Citation: 176 F.3d 1346
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1500, 12 Fla. L. Weekly Fed. C 878 D. Lisa CLOVER, Plaintiff-Appellee, v. TOTAL SYSTEM SERVICES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1346

176 F.3d 1346

79 Fair Empl.Prac.Cas. (BNA) 1500,

12 Fla. L. Weekly Fed. C 878

D. Lisa CLOVER, Plaintiff-Appellee, v. TOTAL SYSTEM SERVICES, INC., Defendant-Appellant.

No. 97-9229.

United States Court of Appeals, Eleventh Circuit.

May 27, 1999.

Marcus B. Calhoun, Jr., George C. Boyd, Jr., Columbus, GA, for Defendant-Appellant.

Howard R. Evans, Robert Dallas, Shaw & Evans, LLC, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

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

ON PETITION FOR REHEARING.

CARNES, Circuit Judge:

Our previous opinion in this case, which is published at 157 F.3d 824 (11th Cir.1998), has already been vacated. See Clover v. Total Sys. Servs., Inc., 172 F.3d 795 (11th Cir.1999). In its place, on petition for rehearing, we file this revised opinion.

Plaintiff D. Lisa Clover, a former employee of defendant Total System Services, Inc. ("TSYS"), brought this lawsuit, claiming that TSYS discharged her in retaliation for her participation in a TSYS investigation conducted in response to TSYS' receipt of an EEOC notice of charge of discrimination. After a jury awarded Clover $25,000 in compensatory damages and $160,000 in punitive damages, TSYS moved for judgment as a matter of law, contending that the evidence Clover adduced at trial was insufficient to support a claim of retaliatory discharge. The district court denied that motion, and TSYS appeals the denial. We reverse.

I. BACKGROUND

Lisa Clover began working for TSYS, a credit and debit card data processor, in 1988. At the time of her termination on March 24, 1995, she was working as a microfiche clerk in the Support Services Division. Her immediate supervisor was Annette Jones. Jones' supervisor was Allen Pettis. The entire Support Services Division was managed by Senior Vice President Walter Miller.

On March 22, 1995, Audrey Hollingsworth, Assistant Vice President of TSYS' Human Resource Management Division ("Human Resources"), asked Jones to have Clover report to the Human Resources office on March 23, 1995 for a meeting. Apparently, there was some confusion about the meeting time. While Clover believed that the meeting was set for 9:15 a.m., Hollingsworth thought that it was scheduled for 9:00 a.m.

Worried that the purpose of the meeting might be to inform her of downsizing in her department, Clover spent the evening of March 22, 1995 preparing a resume. The next morning, Clover reported to the Human Resources office a few minutes after 9:15. She concedes that she arrived late. Clover told Hollingsworth that her lateness was the result of running a school errand for her nephew.

At the Human Resources meeting, Hollingsworth and Marcus Calhoun, TSYS' legal counsel, informed Clover that they were conducting an internal TSYS investigation concerning allegations of sexual harassment made by Courtney Waters, a former Clover co-worker, against Pettis. Although the record does not indicate that Clover knew it at the time, TSYS had commenced this investigation in response to receiving the notice of Waters' charge of discrimination from the EEOC. ¹ For thirty to forty minutes, Hollingsworth and Calhoun asked Clover questions concerning her knowledge of the office interaction between Waters and Pettis. Once the meeting ended, Hollingsworth told Clover she was free to return to her own office, which was located across town.

Because Clover had left her wallet at home, she did not return directly to her office. She arrived at her office around 10:45 a.m., at which time Jones informed her the Human Resources meeting was confidential and she should not tell anyone about it. Jones also told her that she needed to speak with her about her most recent tardiness. Although Clover was generally a good worker, she was often tardy and had been threatened with probation in the past because of her lateness. Jones was aware that Clover had arrived late at the Human Resources office and also knew that Clover had not promptly returned to work after the meeting.

Jones arranged a meeting with Pettis and Clover to discuss Clover's tardiness. At Clover's request, Miller joined the meeting. At that meeting, Clover admitted she had been late to the Human Resources meeting. At trial there was some dispute about the explanation Clover gave for being late. According to Miller, Clover claimed during their meeting that she was late because she was preparing a resume the night before. However, at the Human Resources meeting, Clover had told Hollingsworth that she was late because she ran an errand for her nephew. Thereafter, Jones recommended that Clover be terminated immediately, but Miller disagreed. He said he would look into the possibility of finding a job for Clover in another department.

The next day, Miller informed Clover he was terminating her employment because she had given conflicting explanations for her tardiness. Miller said he had learned from Hollingsworth that Clover had told her she was late to the Human Resources meeting because she had an errand to run for her nephew, which conflicted with the explanation Clover gave him, namely that she had been up late preparing her resume. After some discussion, Miller agreed to reconsider his decision if Clover could work out her differences with Hollingsworth. Clover subsequently met with Hollingsworth, but they failed to reach an agreement. Hollingsworth called Clover on March 27, 1995 to tell her that Miller was terminating her because she had given "false information."

Clover subsequently sued TSYS, alleging unlawful retaliation in violation of 42 U.S.C. § 2000e-3(a). Specifically, she claimed that TSYS terminated her in retaliation for her participation in the investigation of the sexual harassment allegations against Pettis and for her opposition to that alleged sexual harassment. A jury found in Clover's favor and awarded her $25,000 in compensatory damages and $160,000 in punitive damages. TSYS filed a motion for judgment as a matter of law on Clover's retaliation claim and her claim for compensatory damages. The district court denied that motion and TSYS appealed.

II. STANDARD OF REVIEW

We review de novo a denial of judgment as a matter of law. See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir.1998).

III. DISCUSSION

TSYS contends that the district court erred in denying it judgment as a matter of law on Clover's retaliation claim. Its contention potentially raises three issues: (1) whether the district court erred in concluding Clover presented sufficient evidence for the jury to find that Clover engaged in statutorily protected conduct under 42 U.S.C. § 2000e-3(a); (2) whether the district court erred in concluding Clover presented sufficient evidence for the jury to find that Clover established the requisite causal connection between her protected conduct and her termination; and (3) whether the district court erred in concluding Clover presented sufficient evidence for the jury to find that TSYS' proffered nondiscriminatory reason for Clover's termination was a pretext for discrimination. For the reasons discussed below, we conclude that Clover engaged in statutorily protected conduct under § 2000e-3(a)'s participation clause, but that TSYS was entitled to judgment as a matter of law because Clover failed to present sufficient evidence to establish the requisite causal link between her protected conduct and her termination. In light of our decision that Clover failed to establish causation, we need not decide whether Clover presented sufficient evidence of pretext.

A. WHETHER THE DISTRICT COURT ERRED IN CONCLUDING CLOVER PRESENTED SUFFICIENT EVIDENCE FOR THE JURY TO FIND

THAT CLOVER ENGAGED IN STATUTORILY

PROTECTED CONDUCT

The statutory provision that Clover asserts prohibited TSYS from taking adverse employment action against her, 42 U.S.C. § 2000e-3(a), recognizes two forms of statutorily protected conduct. An employee is protected from discrimination if (1) "he has opposed any practice made an unlawful employment practice by this subchapter" (the opposition clause) or (2) "he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter" (the participation clause). 42 U.S.C. § 2000e-(3)a. The case was submitted to the jury under both clauses, and Clover contends that the facts presented at trial support a verdict in her favor under either clause. We believe that although Clover's conduct was not protected by the opposition clause, it did fall within the scope of the participation clause.

1. Did Clover Engage in Protected Conduct Under the Opposition Clause?

Clover contends that the statements she made in her meeting with Hollingsworth and Calhoun constituted opposition to an unlawful employment practice, namely, sexual harassment. At the meeting, Clover says she "described acts that she believed to have been inappropriate or unusual behavior for a member of senior management [i.e., Pettis]." Specifically, she testified that she told Hollingsworth and Calhoun that Pettis engaged in the following conduct:

(i) Pettis made frequent visits without any "business purpose" to Waters' work area.

(ii) Pettis would call Waters on her personal beeper during work hours.

(iii) Pettis would sometimes knock on the department door where Waters, Clover and other employees worked "to get Waters' attention and to call Waters out into the hall to talk." However, if Clover or another worker looked up, "Pettis would dart behind the door out of sight."

(iv) Pettis hung up "the phone on anybody who answered other than Waters during the day."

(v) Waters responded "to the attention of Pettis in a flirting kind of style."

Clover claims that her answers and statements during the interview constitute opposition to an unlawful employment practice. We assume for present purposes that answering...