En Banc Court Affirms Summary Judgment in Sharply Divided Decision

In Gogel v. Kia Motors Manufacturing of Georgia, Inc., 2020 WL 4342677 (11th Cir. July 29, 2020), a divided en banc court affirmed the grant of summary judgment to an employer on retaliation claims under Title VII and § 1981, reversing the original panel opinion and producing some testy exchanges among members of the court.  Plaintiff Gogel alleged that she was the victim of gender and national origin discrimination and retaliation after she filed an EEOC charge against Defendant Kia.  Judge Branch authored the majority opinion, in which Chief Judge William Pryor and Circuit Judges Grant, Tjoflat, Ed Carnes, Marcus, and Julie Carnes joined.  Though they have taken senior status, Judges Tjoflat, Marcus, and Ed Carnes were able to participate in the en banc deliberations because of Eleventh Circuit Rule 35-9, which permits senior judges “to participate in the decision of a case that was heart or reheard by the court en banc at a time when such judge was in regular active service.”  Senior Circuit Judge Julie Carnes elected to participate in this decision pursuant to 28 U.S.C. § 46(c), because she was a member of the original panel.

Chief Judge William Pryor filed a concurring opinion joining the majority opinion in full, but addressing certain arguments raised in dissents.  Judge Jordan filed an opinion concurring in the judgment, in which he discussed his concerns with aspects of the majority opinion, and stated that he agreed with much of what Judges Martin and Rosenbaum wrote in their dissents.  Judge Chuck Wilson filed an opinion concurring in part and dissenting in part, in which he joined the majority’s opinion in full, concurring “that Title VII does not protect an employee’s opposition conduct if the conduct so interferes with the performance of her job duties that it renders her ineffective for the position for which she was employed.”  Judge Chuck Wilson also found that the majority improperly adopted the role of factfinder, ignored evidence, and tipped the scale in Defendant Kia’s favor.

The sharp divisions continued to show through the two dissents.  Judge Beverly Martin filed a dissenting opinion, in which Judges Rosenbaum and Jill Pryor joined.  Judge Martin observed that the majority’s conclusion that there was no material factual dispute seemed anomalous, since “this Court has now dedicated nearly four years and the extensive attention of 13 judges, divided in their views, to reach the improbable conclusion that there is no such dispute.”  Judge Robin Rosenbaum weighed in with a 22-page dissenting opinion, in which Judges Martin and Jill Pryor joined.

Posted by Laura Smithman.

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