Michael A. Benes v. A.b. Data, Ltd.

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1166
MICHAEL A. BENES,
Plaintiff-Appellant,
v.
A.B. DATA, LTD.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-CV-1092—Patricia J. Gorence, Magistrate Judge.
ARGUED JULY 9, 2013—DECIDED JULY 26, 2013
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. After working at A.B. Data
for four months, Michael Benes charged the firm with
sex discrimination. The EEOC arranged for mediation
in which, after an initial joint session, the parties
separated and a go-between relayed offers. In a separate-
room mediation, each side (including attorneys and
assistants) stays in its own room. The intermediary

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shuffles between rooms. Many mediators believe that this
approach prevents tempers from erupting, allows each
side to discuss its own position candidly without the
adversary’s presence, and facilitates careful deliberation
and compromise. But on receiving a settlement proposal
that he thought too low, Benes stormed into the room
occupied by his employer’s representatives and said
loudly: “You can take your proposal and shove it up
your ass and fire me and I’ll see you in court.” Benes
stalked out, leaving the employer’s representatives
shaken. Within an hour A.B. Data accepted Benes’s
counterproposal: it fired him. He replied with this suit
under 42 U.S.C. §2000e–3(a), the anti-retaliation pro-
vision of Title VII of the Civil Rights Act of 1964. His
claim of sex discrimination has been abandoned.
A magistrate judge, presiding by consent under 28 U.S.C.
§636(c), granted A.B. Data’s motion for summary judg-
ment. The judge concluded that Benes had been fired for
misconduct during the mediation, not for making or
supporting a charge of discrimination—and §2000e–3(a)
bans only retaliation “because [a person] has opposed
any practice made an unlawful employment practice
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”. The difference would be clear if Benes
had punched or shot the employer’s representatives,
and we think that it would be equally clear if he had
resorted to slander (say, accusing one representative
of being a pedophile). That his misconduct was a less-

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No. 13-1166 3
serious breach of the mediation protocol does not
matter under the statutory language.
It was Benes who sabotaged the mediation session
by barging into the other side’s room. Put to one side
what he said there. Mediation would be less useful, and
serious claims of discrimination therefore would be
harder to vindicate, if people could with impunity
ignore the structure established by the mediator.
Allowing a sanction against a person who by misconduct
wrecks a mediation will promote the goals of §2000e–3(a).
Benes has not cited any case holding that misconduct
during a mediation must be ignored. Many cases show
that misconduct during litigation may be the basis of
sanctions (by the court, if not by another litigant). See, e.g.,
BE&K Construction Co. v. NLRB, 536 U.S. 516, 537 (2002);
In re Mann, 311 F.3d 788 (7th Cir. 2002). We cannot see
why misconduct during mediation should be con-
sequence free. Judges do not supervise mediation, which
makes it all the more important that transgressions be
dealt with in some other fashion.
There is another way to see why Benes must lose.
Section 2000e–3(a) does not forbid all responses to the
filing of charges (and the procedures used to resolve
them). It forbids only those that would dissuade a rea-
sonable worker from making or supporting a charge of
discrimination. Burlington Northern & Santa Fe Ry. v.
White, 548 U.S. 53, 67–70 (2006). The prospect of being
fired for an egregious violation of a mediator’s protocols
would not discourage a reasonable worker from making
a charge of discrimination or from participating in the

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EEOC’s investigation. Just as sanctions for misconduct
in court discourage the misconduct, rather than the
filing of suits, so sanctions for misconduct in mediation
do not discourage the filing or pursuit of charges.
Penalties discourage the thing being penalized. We
grant that the prospect of a penalty reduces, if only
slightly, the expected value of the litigation, but this
effect is tiny for a person who plans to behave civilly.
We wrote in Hatmaker v. Memorial Medical Center, 619
F.3d 741, 745 (7th Cir. 2010), that “participation [in a
firm’s internal investigation of a charge] doesn’t insulate
an employee from being discharged for conduct that, if
it occurred outside an investigation, would warrant
termination.” Lies and defamation during an investiga-
tion are unprotected. Hatmaker rejected the argument
that the statutory phrase “participated in any manner
in an investigation” means “participated using any
method or tactic”; the phrase refers to the capacity in
which a person participates, not to the participant’s
(mis)conduct. Id. at 746.
Our approach in Hatmaker is equally apt for conduct
during a mediation sponsored by the EEOC. If A.B. Data
would have fired a person who barged into his
superior’s office in violation of instructions, and said
what Benes did, then it was entitled to fire someone
who did the same thing during a mediation. See also
Formella v. Department of Labor, 628 F.3d 381, 391–93 (7th
Cir. 2010); Kahn v. Secretary of Labor, 64 F.3d 271, 279
(7th Cir. 1995). And Benes does not contend that A.B.
Data would have tolerated conduct like his, had it

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No. 13-1166 5
occurred at work. If it did nothing else, the incident
demonstrated Benes’s hotheaded inability or unwillingness
to follow instructions about important matters.
Title VII covers investigation and litigation in the
same breath. Since §2000e–3(a) does not create a
privilege to misbehave in court, it does not create a privi-
lege to misbehave in mediation. The judgment of the
district court therefore is
AFFIRMED.
7-26-13

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