United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-2460

___________

Randy Gilooly, *

*

Plaintiff-Appellant, *

* Appeal from the United States 

v. * District Court for the Eastern

* District of Missouri.

Missouri Department of Health and *

Senior Services, Division of Senior *

Service; Missouri Department of Social *

Service, Division of Aging; Betty *

Bolden; Jennifer Sutton; Gladys Hood; *

Helen Edwards-Matthews; Bonnie *

Eulinberg; Karen Hollering; Linda *

Allen; Sandra Lewis, *

*

Defendants-Appellees. *

___________

Submitted: January 13, 2005

 Filed: August 31, 2005 

___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

___________

MELLOY, Circuit Judge.

Randy Gilooly filed an employment discrimination suit in federal court

pursuant to Title VII and 42 U.S.C. § 1983, and under state law pursuant to the

district court’s supplemental jurisdiction, against the Defendant-Appellees
1

 The name of the agency in question has undergone several changes and has

been given different names by the parties and courts involved in the matter. The

parties’ briefs refer to the agency as the Department of Health and Senior Services

whereas the caption of this Court uses Department of Health and Human Services.

For purposes of this opinion, we use the full name identified in the caption of the

court and adopt the abbreviation used by the district court.

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(collectively, the “Appellees”). Gilooly appeals the district court decision granting

summary judgment to the Appellees. We affirm in part and reverse and remand in

part.

I.

Gilooly was employed by the Missouri Department of Health and Human

Services, Section for Senior Services [Division of Aging] (hereafter “DoA”).1

 At the

DoA, defendant Gladys Hood supervised Gilooly and defendants Jennifer Sutton and

Betty Bolden. Effective March 12, 2001, Gilooly was granted a transfer from his

position under Hood in Mississippi County to a similar position in Cape Girardeau

County. Defendant Helen Edwards-Matthews was Gilooly’s supervisor at the new

location. Defendant Bonnie Eulinberg was the regional manager for both counties

in which Gilooly worked.

Before Gilooly’s transfer, during his exit interview, Gilooly told Hood that

Sutton and Bolden engaged in conduct that made it necessary for him to transfer.

Specifically, Gilooly alleged that Sutton was frequently around his desk and that she

had said she was attracted to him. He also complained that Bolden made

unannounced visits to his home. Gilooly admitted that he had a relationship with

Bolden previously. Gilooly stated that personal problems between Bolden and him

were making it difficult for him to perform his job. Gilooly said that he needed a

transfer because Bolden and Sutton had become “overly dependent on him.” At the

time of the exit interview, Gilooly did not file any sexual harassment complaint.
-3-

During meetings with Hood, both Bolden and Sutton confessed to having

relationships with Gilooly. Gilooly denied a current relationship with either woman.

On May 8, 2001, Gilooly and his girlfriend, Angie Decker, who was not an

employee of the DoA, visited a client in a mental hospital. The visit was

unauthorized because Gilooly had not obtained supervisor approval. During an

inquiry about the visit, it was discovered that this was not Gilooly’s first unauthorized

visit with the client. Gilooly had also given the client a can of pepper spray even

though she was a known self-mutilator. Edwards-Matthews and Eulinberg

recommended discipline for Gilooly’s misconduct. 

On May 30, 2001, Gilooly wrote a reply to the disciplinary recommendation.

In the reply, he alleged that the disciplinary recommendation was in retaliation for his

report of sexual harassment during his exit interview, though he had never actually

filed a sexual harassment complaint. On July 6, 2001, defendant Karen Hoellering,

a DoA human resources manager, issued a suspension letter to Gilooly. He was

suspended without pay for five days for his unauthorized visit, giving the pepper

spray, and his uncooperative attitude after the disciplinary report was issued.

Hoellering also learned, but did not base her decision upon the fact, that Gilooly had

exchanged personal emails on state time and equipment with at least eight women.

On July 12, 2001, Gilooly and his union representative met with EdwardsMatthew and Eulinberg regarding the suspension. On July 27, 2001, Gilooly filed a

charge of discrimination with the Missouri Commission on Human Rights. On

August 9, 2001, Gilooly filed a grievance review request alleging sexual harassment

and unlawful retaliation in violation of Title VII. In his request, Gilooly alleged that

Bolden and Sutton had engaged in a range of inappropriate conduct toward him.

Specifically, he alleged that Sutton had hugged him in an inappropriate manner,

distracted him from his work by visiting his desk, and made unwanted advances

toward him. He also alleged that Bolden had made unannounced visits to his home
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and also distracted him from working. Defendant Sandra Lewis of the Office of Civil

Rights of the Department of Social Services was charged with investigating Gilooly’s

claims. On September 17, 2001, the Office of Civil Rights issued its report and did

not support Gilooly’s allegations. On September 26, 2001, Gilooly’s administrative

appeal of his suspension was heard and denied. On October 25, 2001, Gilooly was

fired, effective November 7, 2001.

 

The termination letter stated that “[t]he reason for [Gilooly’s] dismissal [was]

that [he] made false statements during the investigation and grievance hearing which

followed [his] accusations against two former co-workers.” The letter identified

several areas where it was alleged that Gilooly had deceived investigators. First, it

alleged that Gilooly had falsely denied “personal relationships beyond friendship”

with several former co-workers. In the letter, “Jennifer,” “Betty,” and “ClaraE” are

identified as three women who alleged having had relationships with Gilooly, but

with whom Gilooly had either denied or refused to answer whether he was involved

in a sexual manner. Second, the termination letter stated that Gilooly’s allegation that

“Jennifer” and “Betty” had prevented him from doing work by distracting him was

false because they had told investigators that they had actually been doing Gilooly’s

work. Third, eyewitness accounts of particular events allegedly contradicted

Gilooly’s statements. For each of these allegations, the termination letter did not cite

any documentation beyond the testimony of other employees and witnesses. The

letter also recounted the events that led to Gilooly’s suspension.

On November 26, 2001, Gilooly appealed his termination to the Personal

Advisory Board, but it upheld the termination. On January 13, 2002, Gilooly filed

a second complaint with the Missouri Commission on Human Rights. In the second

complaint, Gilooly alleged that his firing was retaliatory. Again, the commission did

not find Gilooly’s allegations to be credible.
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Gilooly then filed a sexual harassment lawsuit in federal court that is the basis

for this appeal. The district court granted summary judgment for the defendant on all

claims. On appeal, Gilooly argues that the district court erred in finding that he had

failed to establish a prima facie case of: 1) hostile work environment; 2) disparate

treatment; and 3) unlawful retaliation. We address each of Gilooly’s arguments in

turn.

II.

The standard of review for a grant of summary judgment is de novo. Allen v.

City of Pocahontas, Ark., 340 F.3d 551, 554-55 (8th Cir. 2003). To succeed against

a motion for summary judgment in a case like this one, the plaintiff must present

sufficient evidence to create a genuine issue of material fact. Jetton v. McDonnell

Douglas Corp., 121 F.3d 423, 425 (8th Cir. 1997). In reviewing the judgment of the

district court, we must view all evidence “‘in the light most favorable to the

nonmoving party.’” Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir. 2004)

(quoting Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003)).

III.

Gilooly argues that the Appellees were not entitled to summary judgment as to

his hostile work environment claim. To establish a claim of hostile work

environment, a plaintiff must show that: (1) he or she was a member of a protected

group; (2) he or she was subjected to unwelcome harassment in the workplace; (3) the

harassment was based on sex; (4) the harassment affected a term, condition, or

privilege of employment; and (5) the employer knew or should have known of the

harassment and failed to take prompt and effective remedial action. Alagna v.

Smithville R-II, 324 F.3d 975, 979 (8th Cir. 2003); Scusa v. Nestle U.S.A. Co., 181

F.3d 958, 965 (8th Cir. 1999). 
-6-

Because we agree with the district court that Gilooly is unable to prove any

material fact question as to the fourth element, we need not discuss the other

elements. To establish the fourth element, a plaintiff must be prove that the

harassment was “so severe or pervasive as to alter a term, condition, or privilege of

employment.” Scusa, 181 F.3d at 967. The conduct at issue must not be “merely

rude or unpleasant.” Alagna, 324 F.3d at 980. A plaintiff must establish harassment

that is “so intimidating, offensive, or hostile that it ‘poisoned the work environment.’”

Scusa, 181 F.3d at 967 (quoting Scott v. Sears, Roebuck & Co., 798 F.2d 210, 214

(7th Cir. 1986)). A plaintiff must be able to show that “the workplace [was]

permeated with discriminatory intimidation, ridicule, and insult.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted). 

In the present matter, there is no evidence of conduct rising to the level of

“severe or pervasive” harassment. At most, Gilooly has alleged that he was

uncomfortable with Bolden and Sutton’s advances toward him. He does not cite any

instances of conduct by them that could rise to the level required by Title VII. 

Gilooly’s claim that there were frequent desk visits, unannounced visits to his home,

and that Bolden and Sutton were“overly dependent” on him do not constitute sexual

harassment under existing law. While Gilooly may have had a belief that such

conduct constituted sexual harassment, it is not sufficient as a matter of law.

Accordingly, we affirm the judgment of the district court as to the hostile work

environment claim.

IV.

Gilooly also appeals the decision of the district court regarding his disparate

treatment claim. This claim relates to the May 2001 suspension for the unauthorized

visit to the client in a mental hospital. To establish a disparate treatment claim, a

plaintiff must show that: (1) he or she is a member of a protected class; (2) he or she

was meeting the legitimate expectations as to his her duties; (3) he or she suffered an
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adverse employment action; and (4) “circumstances give rise to an inference of

discrimination as similarly situated employees, who were not members of the

protected group, were treated differently.” Jacob-Mua v. Veneman, 289 F.3d 517,

521-22 (8th Cir. 2002). 

In this case, Gilooly argues that Bolton lied about her sexual relationship with

him, later changed her account of events, but was not similarly punished. Further, he

argues that Sutton was accused of similar confidentiality infractions, but was only

reprimanded.

Since we agree with the district court that Gilooly did not offer any material

facts relevant to the fourth element, we need not discuss the other elements here. To

meet the fourth element in a disparate treatment claim, a plaintiff must show that

other employees outside of the protected group were allegedly treated more favorably

and were “similarly situated in all relevant respects.” Pope v. ESA Servs., 406 F.3d

1001, 1009 (8th Cir. 2005). In this case, Sutton and Bolton did not engage in the

same conduct as Gilooly. There is no evidence to suggest that Sutton and Bolton

violated confidentiality, conflict of interest, and reporting rules. As a result, the

cumulative accusations against Gilooly were more severe, and he has failed to

identify any similarly situated employees of the opposite sex who were treated

preferentially. See Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir.

2001) (finding that employees were not similarly situated because of different degrees

of misconduct).
-8-

V.

Gilooly also argues that his termination and suspension were impermissible

retaliation actionable under Title VII. Title VII makes it unlawful for an employer

to discriminate against an employee for “oppos[ing] any practice made unlawful by

this subchapter, or 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(a). To prove a retaliation claim, a plaintiff must show (1) that he

or she engaged in statutorily protected activity; (2) an adverse employment action was

taken against him or her; and (3) a causal connection exists between the two events.

Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 757 (8th Cir. 2001). The defense

may rebut a plaintiff’s claim by advancing a legitimate, “non-retaliatory reason for

the adverse employment action.” Id. If the defendant can show a legitimate reason,

the plaintiff must show that the given reason was only a pretext for discrimination.

Id. To establish a retaliation claim, a plaintiff need not succeed on the underlying

harassment claims. Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir.

1997). 

Here, Gilooly alleges that his suspension and termination were two separate

adverse employment actions. Regarding his suspension, we agree with the district

court that Gilooly presented insufficient evidence of causation to establish a claim of

retaliation.

Turning to his termination, the district court concluded that there was no causal

link between the reporting of sexual harassment and Gilooly’s discipline and

termination. We disagree.

To prove a causal connection under the third element, a plaintiff must prove

that an employer’s retaliatory motive played a part in the adverse employment action.

Kipp v. Missouri Highway & Transp. Comm’n., 280 F.3d 893, 896-97 (8th Cir.
-9-

2002). “[E]vidence that gives rise to an inference of a retaliatory motive on the part

of the employer is sufficient to prove a causal connection.” Id. at 897 (internal

quotation marks omitted). 

The district court found that Gilooly’s termination was caused by his

unauthorized visit to a client with a non-DoA employee. However, because those

responsible for his firing expressly denied that the previous incident was the

justification for his termination, and that the termination letter received by Gilooly

describes his conduct during the investigation as the basis for his firing, we disagree

with the district court’s conclusion that the “plaintiff has not presented evidence that

his termination was for any reason than for violation of policy.” The termination

letter clearly stated as reasons for termination, Gilooly’s conduct and deception

during the sexual harassment investigation. The employer relied on a letter from a

state agency investigator who alleged that Gilooly had lied during the investigation.

There is no evidence that indicates Gilooly had been caught in a clear, unequivocal

lie, but, rather, the evidence shows that the investigator had found Gilooly to be less

credible than the other witnesses. Taking the termination letter in a light most

favorable to Gilooly and for the reasons discussed below, we conclude that this case

gives a necessary inference of retaliatory motive.

Because we believe Gilooly has met the elements of a retaliation claim for

purposes of surviving a motion for summary judgment, the question we must address

is whether, given the facts of this case, Gilooly was fired for legitimate, nondiscriminatory reasons. It cannot be the case that any employee who files a Title VII

claim and is disbelieved by his or her employer can be legitimately fired. If such

were the case, every employee could be deterred from filing their action and the

purposes of Title VII in regards to sexual harassment would be defeated. However,

it also cannot be true that a plaintiff can file false charges, lie to an investigator, and

possibly defame co-employees, without suffering repercussions simply because the

investigation was about sexual harassment. To do so would leave employers with no
2

 It may be argued that independent corroboration can be provided by testimony

from neutral non-parties. Assuming that to be true, that is not our case. Co-workers

who were not the subject of the complaint were interviewed. However, their

statements tended to corroborate some of Gilooly’s allegations, such as the claim that

both Bolden and Sutton would sit at Gilooly’s desk. The “contradictions” dealt with

minor, inconsequential details. The eyewitness testimony as related in the

termination letter does not rise to the level of independent corroboration.

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ability to fire employees for defaming other employees or the employer through their

complaint when the allegations are without any basis in fact.

These scenarios represent two extremes. Differentiating individual cases

between the two extremes is a difficult endeavor at the summary judgment stage.

Nonetheless, we previously addressed this issue and found that the reasons for firing

must be “sufficiently independent from the filing of the complaint to constitute

legitimate and nonretaliatory reasons for discharge.” Womack v. Munson, 619 F.2d

1292, 1297 (8th Cir. 1980). Further, questions related to the very substance of the

investigation are “not sufficiently independent” and therefore, within the scope of the

protected activity. Id. Specifically, an investigator’s “independent determination of

truth or falsity of [the plaintiff’s] allegation . . . [can]not legally be grounds for

discharge.” Id. at 1298. However, if the false statements are “not part of the

protected activity,” then they can be legitimate reasons for termination. Sweeney v.

City of Ladue, 25 F.3d 702, 704 (8th Cir. 1994) (holding that a related third party’s

lies during an investigation were not protected activity).

In this case, the investigator’s belief that Gilooly was lying was the basis for

the DoA’s decision to fire Gilooly. According to the termination letter, the belief that

Gilooly was lying was founded solely on the statements of other employees and

witnesses.2

 The letter contained no independently verifiable evidence that

contradicted Gilooly’s allegations. Without such additional corroboration, the
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statements in the termination letter amount to little more than a description of

conflicting stories with the employer disbelieving Gilooly’s version of the events.

This judgment of assessing witness credibility is normally the province of a

fact-finder at a sexual harassment trial. Allowing the employer’s investigation to

essentially short-circuit the retaliation claim before it begins is antithetical to the

design of Title VII. Had the investigator found a clearer record of deception and

detailed the basis for such findings, a court could find that the firing was not for

protected conduct. However, in this case, the question is largely undeveloped and

best left to a fact-finder to decide. As a result, we conclude the district court erred in

granting summary judgment as to Gilooly’s retaliation claim concerning his

termination. 

VI.

For the foregoing reasons, we affirm as to Gilooly’s hostile work environment

and disparate treatment claims. However, we reverse and remand concerning the

retaliation claim as to Gilooly’s termination and any claims to which the district court

may exercise supplemental jurisdiction.
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COLLOTON, Circuit Judge, concurring in part and dissenting in part.

I agree that the district court correctly granted summary judgment dismissing

Randy Gilooly’s claims alleging sex discrimination based on a hostile work

environment and disparate treatment. However, given the court’s conclusion, with

which I agree, that false statements made in an investigation of alleged sex

discrimination can be a basis for dismissal of an employee (and thus are not protected

“opposition” or “participation” in a sexual harassment investigation), the district

court’s dismissal of Gilooly’s retaliation claim also should be affirmed. The Missouri

Department of Health and Senior Services (DHSS) indisputably terminated Gilooly

based on a reasonable, good faith belief that Gilooly filed false sexual harassment

charges, and then gave false testimony in relation to those charges. As such, the

termination did not constitute discrimination against Gilooly because of opposition

or participation that is protected under Title VII.

Title VII makes it an “unlawful employment practice” for an employer “to

discriminate” against an employee “[1] because he has opposed any practice made an

unlawful employment practice by this subchapter, or [2] 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 two clauses

of this section typically are described, respectively, as the “opposition clause” and the

“participation clause.” In considering a claim of unlawful retaliation, it is important

to determine whether the conduct of the employee at issue constitutes “opposition”

under the first clause, “participation” under the second clause, or activity not covered

at all, because the analysis of an employer’s action may differ depending on the

nature of the employee’s conduct.

The opposition clause protects an employee against discrimination because he

has “opposed” any practice “made an unlawful employment practice” by Title VII.

Our court, like other circuits, has interpreted this provision more broadly than its
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plain language might suggest. The clause encompasses actions that “oppose”

employment practices that are unlawful, but also includes opposition to practices that

are not unlawful, as long as the employee acted in a good faith, objectively reasonable

belief that the practices were unlawful. EEOC v. HBE Corp., 135 F.3d 543, 554 (8th

Cir. 1998); Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995).

Our court followed a decision of the Seventh Circuit, which acknowledged that a

literal reading of the opposition clause would result in a narrower scope, but which

concluded that broader protection was consonant with the true intent of Congress and

necessary to further the central purpose of Title VII. Berg v. LaCrosse Cooler Co.,

612 F.2d 1041, 1045-46 (7th Cir. 1980). The Supreme Court recently noted this

interpretation, but had no occasion to rule on whether it was proper. Clark County

Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam).

The text of the “participation clause,” by contrast, does not connect the

protected activity to the unlawfulness of any employment practice. In one respect,

therefore, the plain language of the clause sweeps more broadly than the opposition

clause, forbidding discrimination because of “participation in any manner” in an

investigation under Title VII. At the same time, however, the clause protects only

participation “under this subchapter,” so participation in an employer’s internal

investigation that is independent of the “subchapter,” i.e., not pursuant to an

investigation by the EEOC or its designee, is not covered. Vasconcelos v. Meese, 907

F.2d 111, 113 (9th Cir. 1990); see also Brower v. Runyon, 178 F.3d 1002, 1006 (8th

Cir. 1999). When the employee is participating in an EEOC investigation, however,

the broad formulation of the clause has led some courts to say that it protects even

false and malicious allegations, or the filing of frivolous complaints. E.g., Pettway

v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969); Proulx v. Citibank,

N.A., 659 F. Supp. 972, 977-78 (S.D.N.Y. 1987); see also Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) (dicta); Womack v. Munson, 619 F.2d

1292, 1298 & n.10 (8th Cir. 1980) (dicta).
3

The first ground listed by the DHSS in its termination letter involved

statements made by Gilooly in an internal grievance hearing. The hearing was

triggered by an internal grievance filed by Gilooly, and was conducted independent

of the investigation of Gilooly’s complaint filed with the Missouri Commission on

Human Rights (MCHR), a designee of the Equal Employment Opportunity

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The majority, ante, at 9-10, rejects this “extreme level of protection for

untruth,” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1175 (11th Cir. 2000), and

although there is a respectable textual argument for the contrary view, I ultimately

agree with the court’s conclusion. The court implicitly follows the reasoning of the

Seventh Circuit in Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004), which

held that “the same threshold standard should apply to both opposition and

participation clauses,” id. at 891 – that is, “utterly baseless claims do not receive

protection under Title VII.” Id. at 890. Rather, an employee must “reasonably

believe in good faith” that he has suffered discrimination before his “participation”

falls within the scope of § 2000e-3. Id. at 890. Whatever might be the plain meaning

of the participation clause standing alone, we must interpret it today in the context of

an opposition clause that has been read to protect reasonable, good faith opposition

to an employer’s practices, but not false allegations. As the Mattson court observed,

if we were now to adopt a different standard for the participation clause, “an

employee could immunize his unreasonable and malicious internal complaints simply

by filing a discrimination complaint with a government agency,” and “an employee

could assure himself unlimited tenure by filing continuous complaints with the

government agency if he fears that his employer will discover his duplicitous

behavior at the workplace.” Id. at 891.

 The question then arises, who decides whether the employee has made false

and malicious allegations? With respect to acts analyzed only under the opposition

clause, it has been recognized that an employer may properly carry out a termination

based on the employer’s good faith belief that an employee lied in an internal

investigation.3

 As the Eleventh Circuit explained, “[w]hen the resulting employer’s
Commission. (Appellant’s App. 93). Gilooly’s conduct in the grievance hearing,

therefore, was governed only by the opposition clause. See Vasconcelos, 907 F.2d

at 113.

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investigation (not tied to the government) produces contradictory accounts of

significant historical events, the employer can lawfully make a choice between the

conflicting versions – that is, to accept one as true and to reject one as fictitious – at

least, as long as the choice is an honest choice.” Total Sys. Servs., 221 F.3d at 1176.

This is a business judgment by the employer, and “[i]n the workaday world, not every

personnel decision involving a false statement (or a cover-up) has to be treated as

something like a trial for perjury.” Id.; see also Wilson v. UT Health Center, 973 F.2d

1263, 1268 (5th Cir. 1992) (stating that Title VII does not “prevent an employer from

making a disciplinary decision based on its evaluation of the veracity of an

employee’s allegations that concern an activity that Title VII protects, such as

complaints about sexual harassment”).

In terms of the text of the statute, an employee who makes false allegations has

not “opposed any practice made an unlawful employment practice,” because only

good faith, reasonable opposition is protected by the statute. Evans, 65 F.3d at 100;

cf. Breeden, 532 U.S. at 270. It follows, then, that a company that terminates an

employee based on a good faith belief that he made false allegations has not

discriminated against the employee “because he has opposed any practice made an

unlawful employment practice.” Rather, the employer has acted because it believed

that the employee made false and malicious allegations, and thus did not believe that

the employee was engaged in protected “opposition.” Of course, if the employer has

no good reason to conclude that the employee’s allegations were knowingly false and

malicious, then there will be a genuine issue as to whether the employer’s stated

reason for termination is a pretext for unlawful retaliation for protected activity. But

whether a judge or jury might later disagree with the employer’s good faith

conclusion about falsity is not dispositive, because whether the employer
4

The second and third grounds listed by the DHSS in its termination letter

involved statements made by Gilooly in his MCHR complaint and to an investigator

from the DHSS’s Office of Civil Rights, who was assigned to conduct an

investigation in light of Gilooly’s complaint to the MCHR. (Appellant’s App. at 93-

94, 180). These statements likely should be analyzed under the participation clause.

See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352-53 (11th Cir. 1999)

(holding that statements made to internal investigator of employer were made in an

investigation “under this subchapter” where investigation was pursuant to a charge

filed with EEOC); Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003).

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discriminated unlawfully depends on the employer’s beliefs and motivation. See Kipp

v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (holding that

Title VII plaintiff must show that “retaliatory motive played a part in the adverse

employment action”) (internal quotation omitted); Scroggins v. Univ. of Minn., 221

F.3d 1042, 1045 (8th Cir. 2000) (holding that the “relevant inquiry” in retaliation case

is whether the employer believed the employee was guilty of the conduct justifying

discharge) (internal quotation omitted); Scott v. County of Ramsey, 180 F.3d 913, 917

(8th Cir. 1999) (“[T]he ultimate burden of persuasion remains with the plaintiff to

show that the termination was motivated by intentional retaliation.”).

The motivation of the employer also should be determinative with respect to

disciplinary actions taken based on statements in an investigation governed by the

participation clause.4

 Once it is acknowledged, as does the majority, that an

employee who makes knowingly false allegations in an investigation has not

“participated” in a way that is protected under § 2000e-3, then the statute gives no

indication that a court should treat the question of the employer’s motive differently

under the opposition and participation clauses. Both clauses prohibit discrimination

“because” an employee has engaged in protected activity. Once the scope of

“opposition” and “participation” has been defined to exclude false and malicious

allegations, an employer acting on that basis does not discipline the employee

“because he has opposed” or “because he has participated” in a way that is protected
5

The Eleventh Circuit in Total System Services limited its holding on this point

to cases arising under the opposition clause, but that court was bound by precedent

holding that even false statements were protected activity under the participation

clause. 221 F.3d at 1175 (citing Pettway, 411 F.2d at 1007). Our court today rejects

that view, and concludes instead that false statements in an EEOC investigation can

be grounds for dismissal. Ante, at 9.

6

In explaining its conclusion, the Board reasoned:

[I]t does not make sense for two different women, one who

since March 2001 was patching up her marriage, to engage

in a coordinated detailed fictional account of their

relationships if [Gilooly] had only been friends with them.

Their responses are extreme for two women who have

simply misunderstood [Gilooly’s] helpfulness and

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by the statute.5

 The employer is motivated by its conclusion that the employee

committed unprotected misconduct, not by the fact that an employee engaged in

protected activity.

In Gilooly’s case, there is no genuine dispute that the DHSS terminated Gilooly

based on a reasonable, good faith belief that he made false statements both in an

internal investigation and in connection with a proceeding before the Missouri

Commission on Human Rights, together with his previous inappropriate involvement

in the case of a mentally disturbed client, which led to a suspension. The DHSS

explained to Gilooly that “[e]veryone is entitled to their opinions and perceptions, but

to file false sexual harassment complaints against people with whom you had

consensual sexual relations, and then to provide false statements throughout the

investigative and hearing process is reprehensible.” (Appellant’s App. at 94).

Gilooly’s termination was upheld by the Personnel Advisory Board of the State of

Missouri, which concluded that Gilooly “lied during his second grievance

investigation,” that he “lied as an offensive tactic to intimidate” two female coworkers, and to “try to get his suspension rescinded.” (Appellee’s App. at 147).6

 The
sympathetic ear. Their reactions are more typical of people

who had been romantically and sexually involved.

Moreover, [Gilooly’s] repeated explanation that the women

were psychotic and delusional is not backed up by any

objective evidence, medical or otherwise.

(J.A. 146).

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Board found that Gilooly “lied about matters very serious and deeply personal to

others,” and that the DHSS “need not be forced to employ in such a sensitive position

someone who has shown a high level of willingness to lie persistently and in formal

situations about such serious matters.” (Id.). 

The DHSS discharged Gilooly based on its good faith and well founded belief

that he made false statements, and not “because he has opposed” an unlawful

employment practice or “because he has made a charge, testified, assisted, or

participated in any manner” in an investigation under Title VII, as the scope of those

clauses is defined today by the court. Therefore, I would affirm the judgment of the

district court.

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