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09-3002 Hatmaker v. Memorial Medical Center

Employment
Retaliation

The participation clause in Title VII does not prohibit retaliation for participation in an internal investigation.
The ‘investigation’ to which section 2000e-3 refers does not include an investigation by the employer, as distinct from one by an official body authorized to enforce Title VII. (A possible exception, discussed below, is irrelevant to this case.) The participation clause prohibits retaliation against an employee who ‘has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under’ Title VII. A purely internal investigation does not involve a ‘charge,’ or testimony, and neither is it a ‘proceeding’ or a ‘hearing.’ To bring an internal investigation within the scope of the clause we would have to rewrite the statute. We therefore join the courts that interpret the participation clause as being limited to official investigations. EEOC v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990); contra, Hashimoto v. Dalton, 118 F.3d 671, 679-80 (9th Cir. 1997). We take no position on whether participation in an internal investigation begun after a charge is filed with the EEOC should be treated as participation in the official investigation, on the theory, embraced by some courts, that any fruits of the participant’s activity are bound to feed into that investigation. Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003). As stated in Clover v. Total System Services, Inc., 176 F.3d 1346, 1353 (11th Cir. 1999), ‘an employer receiving a form notice of charge of discrimination knows that any evidence it gathers after that point and submits to the EEOC will be considered by the EEOC as part of the EEOC investigation. Though this is an indirect means of gathering evidence to investigate a charge of discrimination, the EEOC considers employer-submitted evidence on an equal footing with any evidence it gathers from other sources. Because the information the employer gathers as part of its investigation in response to the notice of charge of discrimination will be utilized by the EEOC, it follows that an employee who participates in the employer’s process of gathering such information is participating, in some manner, in the EEOC’s investigation.’ That is not this case.”

Affirmed.

09-3002 Hatmaker v. Memorial Medical Center

Appeal from the United States District Court for the Central District of Illinois, Scott, J., Posner, J.

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