                                                                                [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT       FILED
                                                                  U.S. COURT OF APPEALS
                       ------------------------------------------- ELEVENTH CIRCUIT
                                                                         JAN 29 2001
                                    No. 99-13196
                                                                     THOMAS K. KAHN
                      --------------------------------------------         CLERK
                     D.C. Docket No. 96-00147-CV-4-DF-4

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                        Plaintiff-Appellant,

    versus

TOTAL SYSTEM SERVICES, INC.,

                                                        Defendant-Appellee.



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




Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.


PER CURIAM:

    A member of the Court in active service having requested a poll on the
reconsideration of this cause en banc, and a majority of the judges in active service

not having voted in favor of it, Rehearing En Banc is DENIED.



                                       ENTERED FOR THE COURT:


                                       /s/ R. LANIER ANDERSON, III
                                       CHIEF JUDGE




                                          2
BARKETT, Circuit Judge, dissenting:


       I respectfully dissent from the court’s denial of rehearing en banc. I believe

that the panel’s opinion holding that an employee’s participation in an employer’s

internal investigation is not protected from retaliation under Title VII’s

participation clause unless an EEOC complaint has been filed1 is an important legal

issue that should be addressed by the entire court. I also believe that the panel’s

opinion in this regard does not comport with a proper reading of Title VII, or with

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc.

v. Ellerth, 524 U.S. 742 (1998).2



                                        DISCUSSION



       Title VII does not state that protection for retaliation exists only when an

EEOC complaint has been filed. Instead, the statute provides that:


   1
     “[B]ecause no EEOC complaint had been filed before [the employee’s] termination, the
taking part in Defendant’s internal investigation did not constitute protected expression under the
participation clause of Title VII.” EEOC v. Total System Serv., Inc. at 3295.
   2
     The panel opinion rejects the use of Faragher and Ellerth by the EEOC, stating that “[t]hese
decisions decided the proper level of vicarious liability that employers have for the acts of
supervisors.” EEOC at 3295 n.3. While this is correct, it does not address other aspects of these
opinions which include their impact on an employee’s protection during an internal
investigation.

                                                3
      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees . . . because he has made a
      charge, testified, assisted, or participated in any manner in an
      investigation, proceeding, or hearing under this subchapter.


42 U.S.C. § 2000e-3. The panel opinion says that “an investigation . . . under this

subchapter” means that an EEOC complaint has been filed. However, this

conclusion is unsupported by any analysis under the well-established canons of

statutory construction which mandate that a remedial statute, such as Title VII, be

construed liberally to give effect to its underlying purpose. These rules of

construction under Supreme Court precedent, Eleventh Circuit precedent, and case-

law from our sister circuits require that we interpret ambiguities in Title VII in

light of the congressional purpose animating the statute as a whole. Analyzing the

undefined phrase “investigation . . . under this subchapter” pursuant to these rules

of construction yields the conclusion that an employee’s participation in an

employer’s internal investigation constitutes protected expression under the

participation clause of Title VII.



1.    The Supreme Court has made clear that courts are to interpret

      statutory ambiguity in Title VII to address the “evil [the statute was]




                                           4
       designed to remedy.”3



       In Robinson v. Shell Oil, 519 U.S. 337 (1997), the Supreme Court

articulated a two-step analysis to be followed by courts facing questions of

statutory interpretation under Title VII. First, courts must look to “the [statutory]

language itself, the specific context in which that language is used, and the broader

context of the statute as a whole” to “determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the case.”

Id. at 340. If the language is “unambiguous” and “the statutory scheme is coherent

and consistent,” the inquiry ends there. Id. (quoting United States v. Ron Pair

Enter. Inc., 489 U.S. 235, 240 (1989)). If an ambiguity is identified, however,

courts must look to “[t]he broader context provided by other sections of the

statute” to resolve it. Robinson, 519 U.S. at 345. As the Robinson Court

demonstrated, this step requires courts to (1) identify the broader goals of the

statute as a whole, (2) determine how the proposed alternative readings of the


   3
     Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). Since Holy Trinity
Church, the Supreme Court has reaffirmed on several occasions this approach to interpretation of
broad statutory schemes. See, e.g., Crandon v. United States, 494 U.S. 152, 158 (1990) (“In
determining the meaning of the statute, we look not only to the particular statutory language, but
to the design of the statute as a whole and to its object and policy.”); K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988) (interpreting § 526 of the Tariff Act); Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 51 (1987) (interpreting § 514(a) of ERISA).


                                                5
statute would comport with those goals, and (3) resolve the case in favor of the

reading that best helps to realize the goals of the statute. Several circuits, including

our own, have explicitly recognized the principle that interpreting Title VII

requires courts to attend to the broader purposes behind the statute.4

   4
     In Bailey v. USX Corp., 850 F.2d 1506 (11th Cir. 1988), this Court addressed the same
question as the Robinson Court did nine years later: whether the protections of § 2000e-3 extend
to former employees. The Bailey Court noted that every court to have addressed the question
answered it in the affirmative on the basis of “a common sense reading in keeping with the
purpose of the statute,” and followed suit. Id. at 1509 (“While it is true that the language of a
statute should be interpreted according to its ordinary, contemporary, and common meaning, this
plain-meaning rule should not be applied to produce a result which is actually inconsistent with
the policies underlying the statute.”) (citations omitted); see Sherman v. Burke Contracting, Inc.,
891 F.2d 1527 (11th Cir. 1990) (reaffirming this method for interpreting ambiguities in Title
VII).
         In EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993), the Sixth Circuit held that §
2000e-3 extends protection to employees retaliated against for another employee’s participation
in investigations of Title VII violations. While the Sixth Circuit acknowledged that the language
of § 2000e-3 does not expressly cover such “third party reprisals,” it found that, “[in] enacting §
2000e-3, Congress unmistakably intended to ensure that no person would be deterred from
exercising his rights under Title VII by the threat of discriminatory retaliation.” Id. at 543.
Because “tolerance of third-party reprisals would, no less than the tolerance of direct reprisals,
deter persons from exercising their protected rights under Title VII,” the Sixth Circuit concluded
that third party employees were covered by § 2000e-3. Id.; see also id. at 545 (“[C]ourts have
routinely adopted interpretations of retaliation provisions in employment statutes that might be
viewed as outside the literal terms of the statute in order to effectuate Congress’ clear purpose in
proscribing retaliatory activity. . . [C]ourts have frequently applied the retaliation provisions of
employment statutes to matters not expressly covered by the literal terms of these statutes where
the policy behind the statute supports a non-exclusive reading of the statutory language.”).
         In McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996), Judge Posner held that § 2000e-
3's protections extend to an employee retaliated against for failing to prevent co-workers from
filing sexual harassment complaints. Although a literal interpretation of the provision would not
allow for such a claim, Judge Posner reasoned that, were § 2000e-3 held not to apply, “the result
would be that employers could obtain immunity from the retaliation statute by directing their
subordinates to take steps to prevent other workers (as by threat of dismissal or other discipline)
from complaining about discrimination,” and that “it would be very odd to suppose” that
Congress intended this result. Id. at 262; see also Castellano v. City of New York, 142 F.2d. 58,
69 (2d Cir. 1998); Pantchenko v. Dolge Co., Inc., 581 F.2d 1052, 1054 (2d Cir. 1978) (“There is
no surer guide in the interpretation of a statute than its purpose when that is sufficiently

                                                 6
2.    Application of the interpretive method mandated by Robinson leads to
the conclusion that the term “investigation” in § 2000e-3 includes an
employer’s internal investigations of complaints under Title VII.

       A.      Statutory ambiguity

       Under Robinson, a statutory term is considered “ambiguous” when it is

susceptible to various interpretations. Id. at 340-41. Subchapter VI of Chapter 21

of Title 42 does not define the term “investigation . . . under this subchapter,” see

Clover, 176 F.3d at 1352, and there is more than one possible interpretation of the

term “investigation” as it is used in the § 2000e-3 context. Although

“investigation” in § 2000e-3 must include official EEOC investigations, nothing in

the text or context of the provision indicates that the meaning of the term is

confined to investigations undertaken by the EEOC, or in response to an EEOC

complaint. The panel reads this term to require at least an official EEOC complaint

in order for the participation clause to apply.5 An equally plausible reading is that


disclosed; nor any surer mark of solicitude for the letter than to wince at carrying out that
purpose because the words used do not formally quite match with it.”) (internal quotations
omitted).
   5
      This issue is one of first impression in this Circuit. In Clover v. Total System Serv., Inc.,
176 F.3d 1346 (11th Cir. 1999), the Court noted that it had “no reason to decide in this case
whether the participation clause extends to cover an employee’s participation in an investigation
conducted by her employer before receiving a notice of charge of discrimination from the
EEOC.” Id. at 1353.
        The panel cites to cases in the Fifth, Sixth and Ninth Circuits in support of the view that
an official EEOC complaint is required in order for the participation clause to apply. However,
Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000), has no applicability because
it did not involve the participation clause as there was no internal investigation at all in Byers.

                                                 7
the term “investigation” includes employers’ internal investigations. Indeed,

employer’s internal investigation procedures for addressing sexual harassment

likely would not exist if Title VII did not impose civil liability. Thus, under

Robinson, a court must determine which of these meanings comports with

congressional intent.



               B. Determining which interpretation of the statute is in keeping
               with “the broader context of the statute as a whole”

       The Supreme Court has delineated the congressional intent of Title VII on a

number of occasions. In Ellerth, the Supreme Court noted that “Title VII is

designed to encourage the creation of antiharrassment policies and effective

grievance mechanisms.” Ellerth, 524 U.S. at 763. Title VII aims both to protect


The issue in Byers was whether the plaintiff had suffered retaliation for opposing unlawful
employment practices. The court ruled on the merits that he had not.
        Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989), is likewise
inapplicable. In Booker, the Sixth Circuit addressed retaliation claims under a state law, not
Title VII. Id. at 1309. Furthermore, the Booker court’s interpretation of the statutory scheme
has been called into question. See McLemore v. Detroit Receiving Hosp. & Univ. Med. Ctr.,
493 N.W.2d 441, 443 (Mich Ct. App. 1992) (“We strongly disagree with [the Booker court’s]
interpretation of the act . . . . We will not interpret the act to allow employers to peremptorily
retaliate against employees with impunity.”). See also Ozturk v. Motorola, Inc., 1998 WL
182515 (N.D.Ill 1998) (noting that the Booker interpretation of the statute “has since been
rejected.”).
        The only opinion to have addressed the issue here is Vasconcelos v. Meese, 907 F.2d 111
(9th Cir. 1990), which reads the statute as the panel does here. The Vasconcelos court, however,
likewise failed to conduct the statutory analysis required by Robinson, simply stating its
unsupported conclusion. Moreover, Vasconcoles was decided before the decisions in Faragher
and Ellerth.

                                                8
employees in the workplace and to encourage employers to be proactive in

maintaining a good working environment for their employees. See Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324 (1977); McKennon v. Nashville Banner

Publ’g. Co., 513 U.S. 352, 358 (1995) (Congress designed Title VII’s remedial

measures to “serve as a spur or catalyst to cause employers to self-examine and to

self-evaluate their employment practices and to endeavor to eliminate, so far as

possible, the last vestiges of discrimination.”) (internal quotations and citation

omitted).

      Mindful of Title’s VII’s intent, we look to resolve the ambiguity between the

plausible alternative readings of the term “investigation” by considering “a primary

purpose of [Title VII’s] antiretaliation provisions,” that of “[m]aintaining

unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346.

Any disincentives employees face to providing investigators – internal or external

– with pertinent information regarding Title VII violations run counter to this

purpose. As the EEOC itself has recognized, “if retaliation for engaging in such

protected activity were permitted to go unremedied, it would have a chilling effect

upon the willingness of individuals to speak out against employment

discrimination.” 2 EEOC Compl. Manual (BNA) § 614. 1 (f)(2), at 614:0007 (Apr.

1988). The panel opinion will create precisely this chilling effect. It fashions a


                                           9
disincentive to employees’ participation in internal investigations by drastically

reducing their protection against retaliation unless the investigation arises as a

result of a specific complaint filed by the EEOC. Furthermore, participants in

internal investigations are more vulnerable to retaliation, as they are conveying

potentially damaging information, not to neutral EEOC investigators, but to the

very people who wield absolute control over their employment situation, and who

stand to be sued if the complaint proves valid. It thus seems more likely, not less,

that employees will face retaliation for their participation when no EEOC official is

on hand to oversee the process or to provide a buffer between the employer and the

participating employee. The panel opinion’s denial of protection cannot be

squared with what Congress intended when it explicitly enshrined protection

against retaliation in Title VII.

       In distinguishing this case from Clover v. Total System Serv., Inc., 176 F.3d

1346, 1353 n.3 (11th Cir. 1999),6 the panel opinion suggests that protecting the

participation of employees in internal investigations under the participation clause


   6
     In Clover, prior to the filing of an EEOC charge of discrimination and the employer’s
receipt of notice of that charge, the employer had conducted another in-house investigation into
the same allegations of sexual harassment. Id. at 1349. Under the rule of this case, had Clover
also participated in the earlier investigation (she did not), she would not have been protected for
statements made during that investigation, yet would have been protected for statements made in
the internal investigation following the filing of the EEOC charge. Given that both investigations
focused on the same incident, it does not make sense that Clover would have exposed herself to
retaliation by cooperating earlier in the process.

                                                10
would render the opposition clause meaningless. This, however, would not be true.

There are many other means by which an employee can oppose discrimination in

the workplace, aside from participating in internal investigations. The EEOC has

identified a number of examples of “opposing” conduct that are protected by Title

VII, including “complaining to anyone (management, unions, other employees, or

newspapers) about allegedly unlawful practices; refusing to obey an order because

the worker thinks it is unlawful under Title VII; and opposing unlawful acts by

persons other than the employer–e.g., former employers, union, and co-workers.”

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000) (citing the

EEOC Compliance Manual, (CCH) ¶ 8006). Moreover, the person claiming

retaliation need not be the person who engaged in the opposition, as Title VII

prohibits retaliation against someone closely related to or associated with the

person exercising his or her statutory rights. Id. at 580 (quoting EEOC Compliance

Manual (CCH) ¶ 8006).

      The only interpretation of the statute that is consistent with Congress’ goal

of encouraging internal investigations of Title VII violations is that Congress

intended to hold employers liable for harassment when they knew or should have

known about it and failed to take steps to remedy the problem, an interpretation

that the Supreme Court found in Faragher and Ellerth. See Faragher, 118 S. Ct. at


                                         11
2290-2292 (1998); Ellerth, 118 S. Ct. at 2270 (1998).



3.    Denying Title VII protection to employees who participate in internal
      investigations does not comport with Faragher or Ellerth

      In keeping with the intent of Title VII of “encourag[ing] the creation of

antiharrassment policies and effective grievance mechanisms,” Ellerth, 524 U.S. at

763, the Supreme Court established the affirmative defense for employers found

vicariously liable to an employee who is a victim of sexual harassment when no

“tangible employment action” has been taken: “(a) that the employer exercised

reasonable care to prevent and correct promptly any sexually harassing behavior,

and (b) that the plaintiff employee unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the employer or to avoid harm

otherwise.” Faragher, 524 U.S. at 807, Ellerth, 524 U.S. at 765. Under this rule,

the employee essentially is required to take advantage of any preventive or

corrective opportunities provided by the employer. Thus, if the corrective

grievance process provided by the employer includes an internal investigation, then

the employee must participate in such investigation, even though he or she will not

be protected from retaliatory acts for her statements in participating in the

investigation. Equally important, if an employer asks an employee to participate in

an internal investigation, the employee will not be protected under the participation

                                          12
clause against retaliatory acts by the employer under the rule in this case.7 Yet

failure to participate in the internal investigation would provide the employer with

an affirmative defense. Such a situation exposes employees to precisely the type of

risks against which Title VII was intended to guard.

       Given the well established principle that Title VII, as remedial legislation,

should be construed broadly, and mindful of the Supreme Court’s directive that the

EEOC’s interpretation of Title VII is entitled to “great deference” by the courts,

see Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971),8 it seems that Title VII’s

participation clause must cover internal investigations, even in the absence of an

EEOC notice of charge of discrimination. To hold otherwise would defeat the

purpose of the participation clause and expose employees to significant risk of

retaliation.




   7
     There is incentive for employers to “keep things in-house” by conducting internal
investigations, thereby avoiding negative publicity and resource-consuming litigation that can
come with formal charges. However, employees would have a disincentive to cooperate, if their
participation in internal investigations is not protected.
   8
    The EEOC has assigned responsibility for sexual harassment of employees to employers
who knew or should have known about the harassment, “unless [they] can show that [they] took
immediate corrective action.” See also 29 C.F.R. § 1604.11.

                                              13
EDMONDSON, Circuit Judge, concurring:


       I dissent from Judge Barkett’s dissent.

       In other words, I concur in the majority’s denial of rehearing en banc. I

believe the panel’s decision is correct given the facts of the case. I will not repeat

everything that was said in the panel opinion, but I do think these three points are

important.

       First, the panel’s decision does not hold (nor does it suggest) that a

retaliation claim is impossible unless someone has first filed an applicable EEOC

complaint. To read the opinion differently is inaccurate. We recognize that a

plaintiff -- in circumstances similar to those in this case, that is, a private

employer’s internal investigation with no government involvement -- might have

protection under Title VII and that this protection would flow from the “opposition

clause” of the Act.1



   1
     In this case, the defendant employer fired its employee because the employer, in good faith,
believed she lied in an internal investigation that the employer was conducting on sexual
harassment charges made about one of its supervisors, charges made by another employee. This
supervisor was, by the way, fired for harassment.
        The reason we distinguish between the participation and the opposition clauses is the way
the EEOC argued its case to the panel. The EEOC drew sharp distinctions between the
protection available under these clauses. “Unlike protection under the opposition clause, which
is conditioned on the reasonableness of an employee’s opposition, protection under the
participation clause is absolute, protecting an employee even when she lies.” Appellant Brief at
p. 10-11 (citations omitted).

                                               14
       Second, because the pertinent statutory language is not really ambiguous, we

are not free to engage in some kind of statutory construction to widen its scope.

We avoided a forced reading; we read the whole statutory section in the ordinary

way. The words “under this subchapter” appear at the end of the participation

clause;2 and therefore, the qualifying phrase “under this subchapter” applies only to

the immediately preceding clause: the participation clause protects employees who

participated in an investigation conducted “under this subchapter.” Those kinds of

investigations are investigations tied to charges before the EEOC.

       Third, applying the law as the panel does, does not defeat the plain purpose

of Title VII. While policy implications should make little difference to a court

once it -- from the language of the statute itself -- has determined what the law is, I

do not concede that our decision creates bad policy or frustrates the spirit of the

law. Applying the law as the panel does, may significantly advance the fulfillment

of Title VII’s goals by encouraging employers to take responsibility, to engage in

self-examination, and to resolve -- speedily, internally and voluntarily -- disputes



   2
    The pertinent statute is written this way:
              It shall be an unlawful employment practice for an employer to discriminate
              against any of his employees . . . [1] because he [the employee] has opposed any
              practice made an unlawful employment practice by this subchapter, or [2] because
              he [the employee] has made a charge, testified, assisted, or participated in any
              manner in an investigation, proceeding, or hearing under this subchapter. (Words
              and numbers in brackets added.)

                                             15
involving claims of discrimination: resolutions without waiting for government

intervention (itself a limited resource) and without too much fear (as long as the

employer acts honestly) of potential, troublesome and costly litigation. Also, while

we recognize some competing interests (as articulated in the important Faragher

and Ellerth decisions) in Title VII cases between employees and employers, we

believe that we do not disobey Faragher and Ellerth and that Congress, in the

statute, has already balanced those interests. An employee who participates in an

employer’s own internal investigation of discrimination is within the scope of the

opposition clause and can be protected by the clause: for example, an employer

cannot throw up just a pretext and get away with punishing an employee for

speaking out. But, at the same time, an employer is allowed a bit more freedom in

some of its personnel decisions when the employer acts voluntarily to investigate

wrongful discrimination and takes the initiative in rooting out discrimination in the

workplace: for example, an employee’s knowingly false statements are not

protected.




                                         16
