Merritt v. Dillard Paper Company, 120 F.3d 1181, 11th Cir. (1997)
Merritt v. Dillard Paper Company, 120 F.3d 1181, 11th Cir. (1997)
Merritt v. Dillard Paper Company, 120 F.3d 1181, 11th Cir. (1997)
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
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.
"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.
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.
7
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.
10
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."
11
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
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.
III. DISCUSSION
A. THE SCOPE OF THE ANTI-RETALIATION PROVISION
14
15
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.
16
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.
17
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 Merritt. Despite
Merritt's lack of candor and reluctance, Moore's attorney through further
questioning did succeed in extracting from Merritt deposition testimony useful
to Moore in proving her Title VII claim. The district court listed that testimony
as follows:
18
19
In connection with a fishing trip, he told her "I guarantee you can come back
with a red snapper."
20
After talking with a customer on the telephone, he said to her, "Janet, he sure is
taken with you, why don't you take care of him sometime."He probably has
communicated jokes containing sexual content to female employees.
21
22
23
He made the statement to Gencie McCann "I had a dream about you last night
and it was so good I feel I owe you money."
24
25
In answer to the question "Have you ever made the statement to Janet Moore,
ooh, baby, I love it when you talk mean to me," he testified "That sounds like
something I could have said." He probably has said that to other female
employees also.
26
In answer to the question "Did you ever recently go into an office where Teresa
Cummings was located and immediately close the door, then reopen the door
and make the statement was it as good for you as it was for me, he replied,
'Could have.' "
27
28
31
The district court rejected Merritt's argument, reasoning that because he had not
voluntarily assisted in Moore's suit, he did not participate in a Title VII
proceeding within the meaning of the statutory language. The district court's
factual premise stacks up well against the evidence, but its legal premise, that
involuntary participation and unwilling assistance are not conduct protected
In construing a statute we must begin, and often should end as well, with the
language of the statute itself. See Good Samaritan Hosp. v. Shalala, 508 U.S.
402, 409, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993); see also Bailey v.
United States, 516 U.S. 137, ----, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995).
As the Supreme Court has admonished, "We have stated time and again that
courts must presume that a legislature says in a statute what it means and means
in a statute what it says there." Connecticut Nat'l Bank v. Germain, 503 U.S.
249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992); see also, e.g.,
United States v. LaBonte, 520 U.S. 751, ----, 117 S.Ct. 1673, 1677, 137
L.Ed.2d 1001 (1997) ("We do not start from the premise that this language is
imprecise. Instead, we assume that in drafting this legislation, Congress said
what it meant."). "When the words of a statute are unambiguous, then, this first
canon [of statutory construction] is also the last: judicial inquiry is complete."
Connecticut Nat'l Bank, 503 U.S. at 254, 112 S.Ct. at 1149 (internal quotation
marks omitted).
33
34
The district court thought that Title VII's anti-retaliation provision does not
cover an involuntary witness who is opposed to the claimant's position, because
that provision was designed to protect those who "aid" and "assist" Title VII
claimants. There are two insurmountable problems with that reasoning. First,
whatever design might be perceived behind the provision, the actual design put
forward through the language of the provision does not require that the
testimony or other participation aid or assist the claimant. Instead of making
assistance to the claimant a prerequisite for protection against retaliation,
Congress chose to make assistance only one of four alternative means of
qualifying for such protection. Congress prohibited retaliation against anyone
who "made a charge, testified, assisted, or participated in any manner." 42
U.S.C. 2000e-3(a) (emphasis added). Under the plain language of the
provision, those who testify or otherwise participate in a Title VII proceeding
are protected from retaliation for having done so, even if it turns out they were
not of any assistance to the Title VII claimant.
36
The second problem with the district court's reasoning is that it equates the
objective effect of participation--whether it aids or assists a claim--with the
subjective intent of the participant. The assumption appears to be that an
involuntary participant cannot be of any use to an enterprise. That is no more
true of conscripted deponents than it is of conscripted soldiers. Even if
assistance were a sine qua non for coverage under the anti-retaliation provision,
a Title VII claimant can be assisted as much or more by the testimony of a
hostile co-employee from whom the truth must be wrenched as by an employee
who earnestly desires to help (but may not be in the position to do so). The
point is well illustrated in this case. He hated to do so, and he tried every way
to avoid it, but Merritt's reluctant deposition testimony did assist Moore in her
claim against Dillard. Indeed, in the words of Dillard's president, that testimony
was "the most damning to Dillard's case." So, even if assistance were a
prerequisite to coverage under the anti-retaliation provision, Merritt did assist
Moore's lawsuit, even though it was against his wishes.
37
The gist of the district court's holding and Dillard's position goes beyond the
question of assistance per se. The underlying proposition is that no conduct
39
Dillard also relies on Whatley v. Metropolitan Atlanta Rapid Transit Auth., 632
F.2d 1325, 1328 (5th Cir.1980), in which this Court's predecessor explained
that "[section 2000e-3(a) ] is the primary source of protection against
retaliation for those who participate in the process of vindicating civil rights
through Title VII." This statement from Whatley, which is descriptive dictum
instead of a holding construing the anti-retaliation provision, is like the
statement Dillard relies upon from McDonnell Douglas. It is true insofar as it
goes. But nowhere in Whatley does the court confine anti-retaliation protection
only to those who "vindicate" rights under Title VII. In fact, the next sentence
of the opinion talks of the "broad protection [ ] afforded to the participant." Id.
(citing Pettway, 411 F.2d at 1006 n. 18). Nothing in either McDonnell Douglas
or Whatley restricts the broad protection afforded by the plain language of the
participation clause only to those who volunteer in the war against
discrimination.
40
We finish up this part of our discussion by addressing two concerns that the
district court had about the "undesirable consequences" which would flow from
interpreting the statute in the manner in which we believe it must be
interpreted. The first consequence the district court foresaw is that such an
interpretation "would mean that employers would be on dangerous ground in
disciplining or discharging employees who have engaged in discriminatory
conduct or are believed in good faith to have done so." The reason is that once
such an employee responded to an EEOC investigation or a lawsuit by making
a statement or giving testimony, he would be protected from any retaliation and
would claim that any adverse employment action against him was retaliation.
That set of circumstances would, the district court feared, have a chilling effect
on compliance with Title VII by making employers more reluctant to fire
sexually harassing employees like Merritt once they have given a deposition or
otherwise participated in a Title VII proceeding. While the district court's
reservation is a legitimate one, such policy concerns cannot alter our
interpretation and application of clear statutory language. Through its
enactments Congress sets the federal policy of this nation in the employment
discrimination area as well as in other areas, and it is up to Congress to make
policy judgments about concerns such as this one. Once Congress has
expressed its resolution of such concerns in a statute, it is the duty of the courts
to give effect to that resolution by applying the statute according to its terms.
We cannot refuse to give effect to the legislative will merely because we think
Congress has acted unwisely.
41
Of course, if giving the words of a statute their plain and ordinary meaning
produces a result that is not just unwise but is clearly absurd, another principle
comes into the picture. That principle is the venerable one that statutory
language should not be applied literally if doing so would produce an absurd
result. See, e.g., Rowland v. California Men's Colony, 506 U.S. 194, 200 & n.
3, 113 S.Ct. 716, 720 & n. 3, 121 L.Ed.2d 656 (1993); United States v. Oboh,
92 F.3d 1082, 1085 (11th Cir.1996) (en banc) (citation omitted), cert. denied, -- U.S. ----, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997). Though venerable, the
principle is rarely applied, because the result produced by the plain meaning
canon must be truly absurd before this principle trumps it. Otherwise, clearly
expressed legislative decisions would be subject to the policy predilections of
judges.
42
This is not a case where the absurd results principle is operative, because we
cannot say that application of the plain meaning of the anti-retaliation
provision's language produces an absurd result. Congress could well have
decided that encouraging truthful testimony by even the sexual harassers
themselves was important enough to vindication of Title VII claims to justify
whatever deleterious effect it might have on the vigor with which employers
discipline guilty employees. Congress could well have decided that even with a
broadly written anti-retaliation provision employers would still have enough
room and sufficient incentive to discipline miscreant employees. We may not
have made the same policy decision had the matter been ours to decide, but we
cannot say that it is absurd, ridiculous, or ludicrous for Congress to have
decided the matter in the way the plain meaning of the statutory language
indicates it did.
43
44
45
The second policy concern the district court had was that interpreting the antiretaliation provision as we have "would have the potential for inundating the
federal judiciary with lawsuits by employees alleging that they could not be
disciplined or discharged for their wrongdoing" because they had responded to
an EEOC investigation or participated in a Title VII lawsuit. It is within the
authority of Congress to decide what federal causes of action should exist.
Because Congress has never shown an overarching concern about the size of
federal court dockets, caseload considerations do not provide a valid basis for
The district court held that even if Merritt's deposition testimony was protected
activity, Dillard was entitled to summary judgment anyway. The court based
that alternative holding on its belief that there was no direct evidence of
discrimination, and that Merritt had failed to present sufficient evidence to
create a genuine issue of material fact that the legitimate reason Dillard gave
for terminating Merritt (his sexually harassing behavior) was pretextual. As we
have held, "Where the non-movant presents direct evidence that, if believed by
the jury, would be sufficient to win at trial, summary judgment is not
appropriate even where the movant presents conflicting evidence." Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996). Accordingly, we
turn to the question of whether there was direct evidence of retaliation in this
case.
48
TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987) (giving virtually
identical example).
50
Merritt contends that the record in this case contains a statement that constitutes
direct evidence of retaliatory motive. Specifically, Merritt points to Clark's
statement that "[y]our deposition was the most damning to Dillard's case, and
you no longer have a place here at Dillard Paper Company." It is uncontested
that Clark, the president of Dillard, was a decisionmaker. It is also uncontested
that Clark took adverse employment action against Merritt: he was fired. As the
first clause in the compound sentence makes clear, Merritt was fired because of
his deposition testimony in Moore's case, which is participation in protected
activity. Clark's statement conforms to the general pattern of statements
constituting direct evidence found in our race and gender discrimination
decisions.
51
52
The direct nature of the evidence the alleged statement in this case provides can
be illustrated another way. Substitute for the explanatory introductory clause
"Your deposition was the most damning to Dillard's case" the following: "You
are black." Is there any doubt that the statement "You are black, and you no
longer have a place at Dillard Paper Company" would be considered direct
evidence of discrimination? We think not. It is immediately obvious that the
second clause "you no longer have a place at Dillard Paper Company" is linked
by the conjunction "and" to the first clause "You are black" in such a way as to
communicate cause and effect.
53
Neither Dillard nor the district court offer any other interpretation of Clark's
statement, any explanation for what was meant if not that Merritt was being
fired because his deposition testimony damaged Dillard's position in the Title
VII lawsuit. We conclude that there is no other reasonable interpretation and
that Clark's statement constitutes direct evidence of retaliation. Because we
hold that Merritt has presented sufficient direct evidence to survive summary
judgment, we do not address his McDonnell Douglas argument and whether he
has presented evidence of pretext.
55
56
In its order granting summary judgment, the district court also struck, as
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit,
sitting by designation
Merritt has testified under oath in the present case that Clark made that
statement when firing him. Clark and another official of the company who was
present deny it, and Dillard has submitted notes taken contemporaneously with
the meeting that do not mention the statement. However, as we explained
earlier, for present purposes we are required to resolve all evidentiary disputes
in favor of Merritt
Merritt argues that the district court also erroneously struck a transcript of a
conversation Merritt had with Joe Strong, Dillard's Birmingham office's vicepresident and general manager. Dillard's motion to strike and the district court's
order only encompass the transcripts with the ten female coworkers. The
Strong transcript was never stricken from the record, and, therefore, we do not
address Merritt's argument regarding it