AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies


Back to list of subjects             Back to Legal Publications Menu

Retaliatory Personnel Action
(Assignments, promotions, discipline and discharge)

     Monthly Law Journal Article: Retaliatory Personnel Action Part One –Statutory Remedies, 2009 (9) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Retaliatory Personnel Action Part Two–Reporting Coworkers, 2009 (10) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Retaliatory Personnel Action Part Three–What constitutes employer retaliation?, 2009 (11) AELE Mo. L. J. 201

      A correctional officer did not prove his claim of unlawful retaliation in denying his request for a new assignment because he had testified on his wife’s behalf in her claim challenging alleged government “patronage” employment. There was no evidence that the sheriff even knew about this protected speech or that it was the motivation for the denial. Another defendant employee also denied such knowledge and a third defendant employee was in no position to either grant or deny the request. Consolino v. Towne, #16-3681, 2017 U.S. App. Lexis 18950 (7th Cir.).

        A city employee prevailed in her earlier lawsuit claiming First Amendment retaliation and state law whistleblower retaliation, and then filed a second lawsuit claiming that her application for City Finance Director was rejected in retaliation for her success in her first lawsuit. She failed to show this motivation. The city’s repeated attempts to convince the replacement employee to apply for the job and its rejection of other experienced candidates demonstrated that it would have hired who they did regardless of the plaintiff’s earlier lawsuit. Howard v. City of Coos Bay, #14-35506, 2017 U.S. App. Lexis 18522 (9th Cir.).     A Chicago police officer claimed that he was harassed based on his national origin, German, and religion, Jewish. He also claimed that his complaints led to retaliation. After a decade of litigation, a jury awarded him $30,000, rejecting his retaliation claim. His lawyer requested $1.5 million in attorney’s fees, which the district court reduced to $430,000. The attorney claimed to have worked 3,742 hours at an hourly rate of $395, while the trial judge reduced the hours to 2,878 and the rate to $300, which yielded a lodestar of $863,000. The trial judge then took into account the modest degree of success the plaintiff had achieved and halved the lodestar. A federal appeals court affirmed this result, including the trial court’s decisions to grant partial summary judgment for the city by confining the discrimination counts to the question whether a fellow officer’s statements had created a hostile work environment; eliminating two counts for lack of any evidence that would permit a finding that the plaintiff’s injury resulted from an express policy, a widespread practice, or a policymaker’s final action, and restricting the retaliation claim period. Challenges to the trial court’s reduction of the requested attorneys’ fees were “unpersuasive.” Sommerfield v. City of Chicago, #13-1265, 2017 U.S. App. Lexis 12443 (7th Cir.).

     A woman was employed as a police officer since 1991, and became an asset forfeiture investigator in 2003. Five years later, she was engaged in a serious dispute with a fellow officer who she accused of using the department’s equipment to put her under surveillance. An investigation resulted in the other officer being suspended for 20 days. The plaintiff then filed an EEOC charge of discrimination which was settled. A new Rotation Policy, implemented in 2012, required that all specialty assignments, including the asset forfeiture investigator position, were subject to three-year rotations. The plaintiff sought reappointment. According to the panel that conducted her interview, she “[i]nterviewed very poorly, seemed angry [and] controlling.” She began her interview by refusing to answer any questions until she read aloud a nine-page manifesto. Another officer was chosen for the position, and the plaintiff was reassigned as a patrol officer. She asserted claims for sex discrimination and unlawful retaliation. A federal appeals court found that the record lacked any evidence to contradict the employer’s position that another applicant was chosen over plaintiff officer for the officer's former job because of his better interview performance. Since there was no admissible evidence that suggested that this explanation was a pretext for sex discrimination, the defendants were entitled to summary judgment on this claim. There was also no evidence that the selection committee chose the other applicant over the plaintiff because she had made prior discrimination claims. Rather, the record demonstrated that her poor interview caused her reassignment. Nicholson v. City of Peoria, #16-41612, 2017 U.S. App. Lexis 10809, 130 Fair Empl. Prac. Cas. (BNA) 328 (7th Cir.).

    The director of a police department’s crime lab was terminated from his job after the district attorney contacted the police chief to express “concern” because he had written an expert report for and planned to testify for the defense in a pending criminal case. The lab director’s contract permitted him to perform consulting work that did not relate to the city's prosecutions or investigations, and he had agreed to testify on behalf of a criminal defendant in another state. He sued the district attorney, arguing that this had violated his First Amendment rights. A federal appeals court held that a prosecutor was not entitled to absolute prosecutorial immunity in these circumstances because these actions were not taken in his role as an advocate within the judicial system. He was, however, entitled to qualified immunity because he was acting within the outer perimeter of his discretionary skills in expressing concerns about the plaintiff's outside work, and further, the law was not clearly established at the time that this somehow violated the terminated employee’s First Amendment rights. Mikko v. Howard, #15-15135, 2017 U.S. App. Lexis 9270 (11th Cir.).

     A long-time employee of a town’s wastewater-treatment plant reported alleged violations of state and federal requirements as well as voicing concerns that a manager’s nephew was improperly hired without advertising the job. His reports went up the chain of command. He was terminated, allegedly because the plant manager felt that he couldn’t work with him any longer. The trial court rejected his claim of First Amendment retaliation on summary judgment, reasoning that his speech did not involve matters of public concern. A federal appeals court reversed in part, stating that “constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public.” Nor must courts limit reports of wrongdoing to illegal acts; a public concern includes “any matter of political, social, or other concern to the community.” Reporting regulatory violations “up the chain” to supervisory governmental employees can constitute speech on a matter of public concern, for purposes of First Amendment retaliation claim. Mayhew v. Town of Smyrna, #16-5103, 856 F.3d 456, (6th Cir. 2017).

     A former deputy claimed that the sheriff fired him in violation of his First Amendment right to freedom of association, based on his affiliation with an opposing candidate for the office of sheriff. Claims against the sheriff in his official capacity were properly dismissed because he was not, under Arkansas law and county policies, the final policymaker for employment decisions in the sheriff’s office because those decisions were subject to review by a quorum court. The sheriff was not, however, entitled to qualified immunity in his individual capacity.A federal appeals court noted that for “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns, #74-1520, 427 U.S. 347 (1976), and Branti v. Finkel, #78-1654, 445 U.S. 507 (1980).  When a case involves the dismissal of an employee because of his or her political affiliations or support for certain candidates, a “dismissal solely on account of an employee's political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” This is different from the “balancing” test utilized in another line of First Amendment cases, such as Pickering v. Board of Education, #510, 391 U.S. 563 (1968), and Connick v. Myers, #81-1251, 461 U.S. 138 (1983) involving overt expressive conduct, which provides for a flexible weighing of the case-specific facts to balance the interests of the government with those of the employee. The federal appeals court ruled that the trial court should have applied the Elrod-Branti analysis rather than the Pickering-Connick analysis to determine whether the sheriff’s actions in his individual capacity violated the plaintiff’s First Amendment rights. Because the wrong analysis was applied, further proceedings were required. Thompson v. Shock, #16-1643, 2017 U.S. App. Lexis 5361 (9th Cir.).

     A county forest preserve district police officer, while off-duty, brought champagne to a police station to engage in a New Year celebration. He claimed to have received permission from a sergeant to do so. The next month, the employer initiated disciplinary action against him for this action. According to the plaintiff, he resigned his job after he saw the “handwriting on the wall” when a hearing officer allegedly “upheld the charges” against him. In reality, he claimed, the discipline for involvement in the party was a pretext for retaliating against him because he had previously reported official misconduct within the department including an incident involved racial profiling, and another incident in which he believed a fellow officer had been unjustly disciplined. The federal appeals court upheld dismissal of his retaliation action under 42 U.S.C. 1983, finding that he did not show that he was disciplined for engaging in constitutionally protected speech, or that he was deprived of a constitutionally protected liberty or property interest without due process. He did not plausibly allege that he made these complaints about official misconduct as a citizen rather than as a public employee speaking pursuant to his official duties since he shared the complaints only with his employer. Roake v. Forest Preserve District of Cook County, #16-2976, 2017 U.S. App. Lexis 2781 (7th Cir.).
     A former police officer claimed that he was fired for engaging in protected speech at a village board meeting concerning a proposal to lay off up to seven full-time officers. He was the secretary of the local police union, and in his comments presented three alternatives to the layoffs. He asserted that the defendants retaliated by accusing, interrogating, and ultimately firing him under the pretext of unsubstantiated violations of department policy. The defendants denied knowing that the plaintiff even attended the board meeting. They argued that he was legitimately fired because of a number of acts of misconduct. These included an improper traffic stop, two unauthorized, unnecessary, dangerous high
speed chases, his behavior at and after an awards banquet, alleged reckless driving while off-duty, and violation of a no-contact order during the following investigation. He also allegedly lied when questioned about each of those incidents. A federal appeals court upheld the dismissal of the lawsuit, ruling that the plaintiff had presented no admissible evidence that his termination had been based on retaliation for his exercise of his free speech rights, McGreal v. McCarthy. #16-2365, 2017 U.S. App. 3944 (7th Cir.).

     An African American female employee of an Arkansas state agency claimed disparate treatment on account of race, and retaliation in terminating her in violation of Title VII, 42 U.S.C. 2000e-2 and 2000e-3(a) six weeks after she filed an Equal Employment Opportunity Commission charge of racial discrimination. On the disparate treatment claim, she argued that she was improperly “disciplined [given a written warning] for something that a Caucasian female employee [who she supervised] did not accomplish.” The appeals court found that this did not allege that the Caucasian employee was not disciplined or received less discipline, thus failing to show disparate racial treatment, so this claim failed. The appeals court concluded, however, that the dismissal of the retaliation claim for having complained of alleged racial discrimination was erroneous where the plaintiff alleged “but-for” causation of her termination.  While the factual allegations may also have been consistent with termination for poor performance, they were not an “obvious alternative explanation” that made her retaliation claim “implausible.” Wilson v. Arkansas DHS, #16-1174, 2017 U.S. App. Lexis 3683 (8th Cir.).

      A woman who was fired as a litigation attorney for a county attorney’s office sued the county and a number of its officials. She was terminated after she made a comment to a newspaper reporter about settlement offers in certain lawsuits against the county. Her tortious interference with contract claim failed because the county was the client, and county risk management officials had a legally protected interest in ensuring that the county attorney's office provided quality legal services to the county. Her First Amendment retaliation claim was rejected by the appeals court, overturning a jury verdict for the plaintiff, because her speech to the reporter fell under the broad set of official duties she owed the county as its attorney since she was “inevitably speaking” as a lawyer representing the county. Her public statements touched on the very matter on which she represented the county, and she did not make any allegation of corruption or other serious misconduct. She did not speak as a private citizen and her comments were not protected speech. Brandon v. Maricopa County, #14-16910, 2017 U.S. App. Lexis 3259 (9th Cir.).

     Two police officers claimed that their termination (forced resignation) was retaliation for their exercise of their First Amendment rights after they went to an arrestee's house and encouraged him to file an excessive force complaint against a supervisor who had made the arrest. A federal appeals court ruled that the police chief was entitled to qualified immunity on this claim. He could reasonably have believed that the officers were acting as police officers rather than private citizens and that their conversation with the arrestee was “surreptitious” conduct intended to foment complaints and litigation against a supervisor with whom they did not get along. The defendant police chief viewed this behavior as a serious threat to the smooth running of the police department and to his own ability to maintain operational control. The court found that he could reasonably have viewed the department's interest in maintaining discipline as vital, outbalancing any free speech rights. In any event, as the law was not clearly established here, the chief was entitled to qualified immunity, and the appeals court found it unnecessary to decide whether a constitutional violation actually occurred. Crouse v. Town of Moncks Corner, #16-1039, 2017 U.S. App. Lexis 2659 (4th Cir.).

     A city’s former building commissioner claimed that she was fired by the city administrator because she criticized changes to the city's building code, requested an advisory opinion on the bidding process for purchasing computer equipment, and asked for an audit of the city's procurement department, as well as criticizing the city's handling of an aquatic-center project. She claimed that her firing was in retaliation for protected speech, and that the city was liable for damages as her firing was caused by an official municipal policy or an unofficial municipal custom. Rejecting this claim, a federal appeals court ruled that the city could not be held liable for the administrator’s actions solely because it employed the administrator. The plaintiff failed to show anything more than unsubstantiated suspicion o a continuing, widespread, and persistent pattern of unconstitutional misconduct leading to her termination. The city’s mayor, not its administrator, was its official policymaker. Bolderson v. City of Wentzville, #15-3846, 840 F.3d 982 (8th Cir.).

     A postal employee sued his employer and supervisor claiming that he was terminated in retaliation for taking Family Medical Leave Act (FMLA) leave. A federal appeals court affirmed summary judgment for the defendants, holding that the trial court properly found that the supervisor lacked the requisite knowledge necessary to hold him liable for retaliation in violation of the FMLA, as he thought the employee was out on paid workers’ compensation medical leave following an injury, rather than FMLA leave. Chase v. United States Postal Service, #16-1351, 843 F.3d 553 (1st Cir. 2016).
.     The Kansas Bureau of Investigation’s (KBI) official overtime policy provides one-and-a-half times the normal hourly rate for hours worked in excess of eighty hours in a two-week period. A former KBI agent claimed that the employer applied pressure on employees to work overtime hours without claiming overtime in violation of state and federal laws. He also argued that he was unlawfully fired in retaliation for complaining about this. The Kansas Supreme Court found the complaint about unpaid overtime sufficient to preclude summary judgment on whether the plaintiff engaged in protected activity. The court stated that state law recognizes retaliatory discharge as a cause of action when an employee is fired for asserting rights under the Fair Labor Standards Act or the Kansas Minimum Wage and Maximum Hours Law. Further proceedings were ordered on the employee’s claim. Lumry v. State, #108425, 2016 Kan. Lexis 604
     The president of a union local representing jail employees received complaints that jail staff members felt intimidated by management’s tactics during an investigation into alleged misconduct at the jail. He worked with a sergeant (the subject of the investigation) to draft a memo to inform staff members of their rights. It stated, in part, “I am in no way advising you not to cooperate with management, just advising you of your rights. It is your responsibility to ask for the representation.” The day after the memo was posted, the sheriff summoned the union president to ask him who wrote it. He also allegedly told him: “I can have you prosecuted for interfering with an ongoing investigation.” The sergeant was terminated based on video footage showing officers playing cards, damaging jail property, conducting outside business, not monitoring security cameras, and other violations of department policy at a time when the sergeant was their supervisor. The union president was also subsequently fired over alleged sexual misconduct with a female inmate. Upholding rejection of the two plaintiffs’ First Amendment retaliation claim, a federal appeals court held that whether or not the memo was protected speech on matters of public concern, the plaintiffs’ interest in free speech were outweighed by the defendants’ interest in getting compliance from correctional officers during the investigation. The sheriff and the department could reasonably have believed that the memo could disrupt legitimate law enforcement interests at the jail. The memo encouraged officers not to cooperate with the investigation and to ignore their superiors' confidentiality orders. Gillis v. Miller, #16-1249, 2017 U.S. App. Lexis 271 2017 Fed. App. 0002P (6th Cir.).

     A city fired the administrative secretary of its police department. She sued, claiming that her termination was retaliation for her having voluntarily provided an affidavit in support of a former police officer's wrongful-termination claim against the department. The trial court found that the city’s interest as a public employer outweighed the plaintiff’s interest in her speech regarding the former employee’s claim. Individual defendants were also entitled to qualified immunity. Helget v. City of Hays, #15-3093, 844 F.3d 1216 (10th Cir. 2017).

    A police officer fiiled a written complaint with his chief, reporting that fellow officers and county sheriff's deputies had been racially profiling minority citizens and committing other constitutional violations. As a result, he claimed, among other retaliatory actions, a be-on-the -lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described him as a “loose cannon.” “Consider this man a danger to any [law enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed. He had previously been terminated as an officer, but appealed that decision, again repeating his allegations. The BOLO was issued the day after the termination appeal hearing by a major with the county sheriff's office. After the BOLO was issued, his car was allegedly followed by both police and sheriff's vehicles. He was later allowed to return to work as an officer. He sued the major in his official and individual capacities for defamation and retaliation in violation of his First Amendment rights. Rejecting defenses of qualified immunity on the First Amendment retaliation claim and official immunity by the defendant major on the defamation claim, the appeals court found that the plaintiff's alleged facts would support a reasonable inference that the police department communicated with the Sheriff’s Department about the plaintiff's complaints prior to the issuance of the be-on-the-lookout advisory (BOLO), that the Sheriff’s Office and the major knew about the termination-appeal hearing, and that the major issued the BOLO at least in part in retaliation for plaintiff's complaints, in violation of the First Amendment. The court also ruled that the plaintiff's constitutional right to be free from retaliation that imperiled his life was clearly established at the time that the BOLO was issued. The allegations satisfied the showing of a deliberate intention to do wrong—that is, actual malice. "Our First Amendment demands that a law enforcement officer may not use his powerful post to chill or punish speech he does not like. If he does so, he may not hide behind the veil of qualified immunity." Bailey v. Major Tommy Wheeler, #15-11627, 2016 U.S. App. Lexis 21194 (11th Cir.).
    A man worked for a local city parks department for 38 years before his employment classification was eliminated. He and many employees were laid off. He applied to be rehired in a newly created classification, but did not get a position. He then retired from city employment, but sued for age discrimination, retaliation, and harassment. The city asserted, with documentation, that its actions were taken for legitimate nondiscriminatory reasons, in that he had refused to cooperate with the implementation of a new departmental policy getting away from separate recreational events for disabled members of the public and their enhanced inclusion in general events. Summary judgment was upheld for the employer. The plaintiff's opposition to policies he viewed as discriminating against disabled members of the public was not protected activity because his opposition was not directed at an unlawful employment practice, so no unlawful retaliation occurred. Dinslage v. City and County of San Francisco, #A142365, 5 Cal. App. 5th 368, 2016 Cal. App. Lexis 970.

     A city's former police chief claimed that he was fired for suing the mayor in unlawful retaliation for exercising his First Amendment rights. Upholding summary judgment for the mayor, a federal appeals court concluded that while the plaintiff spoke as a citizen, his suit against the mayor in his personal capacity was not focused on matters of public concern and therefore was not protected First Amendment speech. While there was a mix of both public and private concerns in the lawsuit, personal concerns predominated since the plaintiff sought personal relief and the facts revolved around internal employment grievances arising from a feud between the two men. Gibson v. Kilpatrick, #15-60583, 2016 U.S. App. Lexis 17290, 41 I.E.R. Cas. (BNA) 1182 (5th Cir.).\
     A former police officer claimed that she was improperly terminated for First Amendment protected speech when she spoke to local leaders about what ahe saw as a "scam" in the department, unnecessary overtime for supervisors. Police officials were not entitled to qualified immunity on this claim. The officer's right to free speech was clearly established, and the speech was not made pursuant to the officer's official duties. The court also found that the officer's probationary status was irrelevant. Ricciuti v. Gyzenis, #12-432, 2016 U.S. App. Lexis 15556 (2nd Cir.).
     City officials (including the mayor, and a councilwoman) were accused of violating a city manager's rights after he made reports to law enforcement and other agencies about their alleged misconduct in violating state campaign finance and disclosure laws. A federal appeals court held that the plaintiff asserted a plausible First Amendment claim that he spoke as a private citizen and not as part of his job duties concerning violations of state campaign finance laws, but not as to his statements concerning financial disclosure laws or disclosures made at city council meetings. Carollo v. Boria, #15-11512, 2016 U.S. App. Lexis 15072, 26 Fla. L. Weekly Fed. C 646, 41 I.E.R. Cas. (BNA) 993 (11th Cir.).
     A U.S. Supreme Court case involved a police detective who was a friend of the former police chief, who was running against the incumbent mayor. He was not, however, involved in his campaign, and could not even vote for him based on his city of residence. He did, however, at the request of his mother, who was bedridden, pick up one of the candidate's campaign signs to replace one that had been stolen from her lawn. An officer assigned to the mayor's security staff saw this, and the next day, the detective was demoted to a walking post as a result of his "overt involvement in a political election." He sued, claiming that this was unlawful retaliation for protected First Amendment activity. A federal appeals court rejected his free speech claim, as he did not intend to convey a political message when he picked up the sign. He did not show retaliation for an exercise of the right to freedom of association as he had no affiliation with the campaign. Prior precedent barred a claim of unlawful retaliation based solely on a "perceived," as opposed to actual, exercise of First Amendment rights. The U.S. Supreme Court reversed. It held that the officer was entitled to seek relief for his demotion based on the city's mistaken belief that he was engaged in political speech, since the city allegedly acted upon a constitutionally harmful policy regardless of whether or not the officer did in fact engage in political activity. The harm— discouraging employees from engaging in protected speech or association in violation of the First Amendment—is the same, regardless of factual mistake. Heffernan v. City of Paterson, #14-1280, 136 S. Ct. 1412, 194 L. Ed. 2d 508, 2016 U.S. Lexis 2924. In a further development in the case, in remanding for trial, the federal appeals court said that, if, when the detective was disciplined, the city had in effect (whether written or unwritten) a neutral policy prohibiting officers assigned to the Office of the Chief of Police from overt involvement in political campaigns, such a policy meets constitutional standards. The trial court must then determine whether he was aware or reasonably should have been aware of such a policy and whether he was disciplined for what reasonably appeared to be a violation. Heffernan v. City of Paterson, #14-1610, 2016 U.S. App. Lexis 15695 (3rd Cir.).
     A city's Superintendent of the Water Department claimed that he was fired in unlawful retaliation for planning to testify against the city in an age discrimination lawsuit. The federal appeals court rejected the city's argument that plaintiff's speech was not speech as a citizen on a matter of public concern and so fell outside the First Amendment's protections. In this case, his sworn statement and imminent testimony were outside the scope of his ordinary job duties, which meant that he was engaged in speech as a citizen for First Amendment purposes. The court also concluded that the retaliation provision of the age discrimination in employment statute did not preclude a plaintiff such as the one in this case from bringing a First Amendment retaliation claim under 42 U.S.C. 1983. Given the substantial difference between the levels of scrutiny afforded age discrimination equal protection claims and First Amendment retaliation claims, the court cannot assume that Congress intended the age discrimination statute to affect the availability of section 1983 claims. Stilwell v. City of Williams, #14-15540,, 2016 U.S. App. Lexis 14409 (9th Cir.).
     A part-time village police officer cited and arrested a driver for car insurance-related infractions. The driver was released and the citations voided after several phone calls between the driver's mother, local politicians, and the chief of police. The officer became concerned that voiding the citations may have involved official misconduct. He shared his concerns with other officers and with the FBI. The police chief then fired him. A federal appeals court ruled that his statements to fellow officers and to the FBI were protected under the First Amendment. He was speaking as a private citizen about a matter of public concern. His interest in speaking outweighed the police chief's interest in promoting departmental efficiency. The Village, however, was not liable for the chief's actions, since the chief did not have the authority to unilaterally set departmental firing policy. Kristofek v. Village of Orland Hills, #14-2919, 2016 U.S. App. Lexis 14782 (7th Cir.).
     A female secretary in the U.S. Fish and Wildlife Service asserted claims for hostile work environment sexual harassment and unlawful retaliation for complaining about the harassment. A federal appeals court found that she failed to show sexual harassment so severe or pervasive as to support a claim of a hostile work environment. She alleged seven harassing incidents over a three year period by two different men, with none of them involving actual touching and instead involving suggestive remarks or gestures. She also failed to show that her termination was retaliatory for complaining about harassment. She failed to show that she would not have been terminated "but for" a retaliatory motive. She was fired for calling her supervisor "a god-d***ed f***ing liar" and grabbing a supervisor's arm and twisting it, stating that she would send copies of e-mails in her possession to the Equal Employment Opportunity Commission (EEOC) and the court, and copying unnecessary people on e-mails after repeated warnings to cease doing so. She had previously been disciplined twice for inappropriate conduct and failure to follow a supervisor's directive. Blomker v. Jewell, #15-1787, 2016 U.S. App. Lexis 14386 (8th Cir.).
      A white male terminated county employee claimed that a Hispanic voting block on the County Commissioners Court eliminated his job because of his race, and in retaliation for age-related protected activities while also violating his right to due process. A federal appeals court ruled that he failed to prove his race discrimination claim. He had earlier complained that the county’s health-insurance policy violated the Age Discrimination in Employment Act (ADEA) because it provided dependent health benefit coverage for dependent children of county employees. According to him, older workers were less likely to have children, so the older workers received "fewer County dollars per capita." This complaint was rejected by the county. The appeals court ruled that the 21 months between his complaint about the health insurance and his termination was too substantial a gap to support an inference of causation. Heggemeier v. Caldwell Cnty., TX, #15-50485, 2016 U.S. App. Lexis 11531, 100 Empl. Prac. Dec. (CCH) P45586, 129 Fair Empl. Prac. Cas. (BNA) 389 (5th Cir.).
     A federal employee failed to show that she was not promoted because of comments in her performance evaluation when that evaluation was not shown to be actually used in the promotion process. Accordingly, even if comments in the evaluation referred to her protected First Amendment speech (being quoted in a newspaper article about race discrimination within the agency employing her), she could not show that she was not promoted because she exercised her First Amendment rights. Performance ratings that have a negative impact on promotion potential do not constitute an adverse employment action unless the rating actually led to the denial of the promotion. Wilson v. Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th Cir.).
     An employee of a state agency claimed that she suffered unlawful retaliation for opposing an employment practice prohibited by Title VII and other employment discrimination laws. The conduct she opposed - the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims - was not a “practice made an unlawful employment practice” by Title VII. Cooper v. N.Y. State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec. (CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.).
     An employee of a state agency was a political appointee of the elected Republican Land Commissioner. The Commissioner's decision not to seek reelection put her job at risk. Allegedly to see that she remained employed by the state, the outgoing Commissioner appointed her to a senior civil service job where she'd be protected by state law against being removed for political reasons. A newly elected Democratic Commissioner dismissed her, and she sued, arguing that she was a protected civil service employee and that the new Commissioner had unlawfully retaliated against her for exercising her right to free political association in violation of the First Amendment. A federal appeals court upheld the denial of qualified immunity to the new Commissioner, as there was evidence that the plaintiff's political affiliation was a motivating or substantial factor in her dismissal. The First Amendment rights allegedly involved were clearly established at the time of the dismissal. Walton v. NM State Land Office, #14-2166, 2016 U.S. App. Lexis 7030 (10th Cir.).
     An employee of a county sheriff's office was placed in a temporary light duty assignment as a result of disabilities suffered from a work related injury. The employer did not offer permanent light duty assignments, and she was ultimately terminated. A federal appeals court rejected a disability discrimination claim. The employer was not required to create a permanent light-duty job especially for the plaintiff. The plaintiff did not support her request for a reassignment with evidence that there was a specific full duty vacant position that she was qualified for. The court also rejected the plaintiff's retaliation claim, since the evidence was that she was fired solely because she was unable to return to full duty when her eligibility for light duty expired. Frazier-White v. Gee, #15-12119, 2016 U.S. App. Lexis 6318 (11th Cir.).
     A police chief was entitled to qualified immunity in a lawsuit brought by a police officer claiming that he faced retaliation for various instances of speech critical of the chief's competence. The officer was both a member of and an officer of the police union. A federal appeals court ruled that it was not clearly established that a city police officer's speech as a union officer attacking the chief of police's competence as chief outweighed the chief's governmental interest in effective administration of the department. Lynch v. Ackley, #14-3751, 811 F.3d 569 (7th Cir. 2016).
     An ex-police chief claimed that he was fired in retaliation for his desire to promote an African American member of the department. A federal appeals court found that he had failed to demonstrate that such retaliation was the basis for his termination or that the reasons the mayor gave for firing him were pretexts. The mayor cited problems with the chief making sure that all officers satisfied firearms certification requirements, and the exceeding of the allocated budget for purchasing dashboard cameras, legitimate non-discriminatory reasons. Evidence that the mayor and his friends had used derogatory language in referring to African American people was insufficient to serve as racially discriminatory animus. He did not claim that the statements in question were in any way made in connection with his employment. Hutton v. Maynard, #15-1300, 2016 U.S. App. Lexis 1774 (8th Cir.).
     A woman who worked for the Federal Aviation Administration claimed that she performed the duties of a program analyst, but was not given the position or compensated for extra work she allegedly did. She asserted a claim for violations of the Equal Pay Act, asserting that she was not given the pay provided to male employees doing comparable work. Her equal pay claim failed because she had not provided a description of any "common core of tasks" or of the male employees' hours, duties, background, and qualifications. Her failure to promote Title VII sex discrimination claim failed as she had not shown that she ever actually applied for the job of program analyst she complained about not getting. Additionally, a Title VII unlawful retaliation claim failed when she did not prove that she ever complained about the alleged discrimination before measures were taken to remove her from what she characterized as more challenging duties. Jaburek v. Foxx, #15-2165, 2016 U.S. App. Lexis 474 (7th Cir.).
     A female police officer assigned to work as a media liaison claimed that a male officer assigned to similar duties verbally assaulted her on a number of occasions and that when she complained about this and initiated an internal affairs investigation that sustained her complaint, both she and another officer who came to her assistance were reassigned to patrol duties, with her having to work the midnight shift in a dangerous neighborhood. She also claimed that the coworker who verbally assaulted her was never reprimanded. A federal appeals court found that her speech in complaining about the harassment was not constitutionally protected by the First Amendment, as she did not speak as a private citizen or on a matter of public concern, as the objective of her complaints was only to further her personal interest in remedying her employee grievance. Her speech was intimately connected with her job duties. Kubiak v. City of Chicago, #14-3074, 2016 U.S. App. Lexis 385 (7th Cir.).
     A police officer sued the city, claiming, among other things, that he faced retaliation, including suspension from a prestigious Crime Reduction Unit, because of his father's prior lawsuit against the department for race discrimination and retaliation, and his own subsequent joining of that lawsuit. There was sufficient evidence to show that the suspension would not have taken place but for the retaliatory motive. The jury awarded $23,000 in past compensatory damages and $127,000 in future compensatory damages. The trial court set aside the future damages award as unsupported by the evidence. A federal appeals court remanded the part of the trial court's order vacating the jury's future damages award, since there was sufficient evidence that the plaintiff would suffer future reputational harm from the retaliatory actions. Zamora v. City of Houston, #14-20125, 798 F.3d 326 (5th Cir.).
    A Centers for Disease Control (CDC) employee working in a bio-terrorism preparedness plan claimed that he was fired in retaliation for reporting perceived public health threats. A federal appeals court upheld the dismissal of the plaintiff's claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b) and 2671 et seq., holding that the FTCA claims were barred by the Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq., which was his sole remedy for his claims. Tubesing v. United States, #15-30347, 2016 U.S. App. Lexis 94 (5th Cir.).
     A juvenile detention officer terminated after allegedly using excessive force against a juvenile showed evidence that some employees were terminated for excessive force while others were not, and there was substantial evidence of a genuine issue of material fact as to whether her firing would have occurred but for her exercising her protected rights, such as her involvement in two prior lawsuits resulting in her reinstatement. Summary judgment on the retaliatory termination claim, therefore, was improper. Wheat v. Florida Parish Juvenile Justice Comm'n, #14-30788, 2016 U.S. App. Lexis 45(6th Cir.).
     A white employee of the county sheriff's office claimed that he was fired in retaliation for testifying in favor of race discrimination complaints by African-American officers. The employer argued that he was actually fired for taking money from a detainee's wallet. A federal appeals court upheld summary judgment for the employer. While alleged evidence of harassment after the testimony "says something" about the context in which the investigation of the alleged theft started, it did not, without further evidence, support the conclusion that the firing was retaliatory, and no reasonable jury could find that the investigation constituted a pretext to fire the plaintiff in retaliation for his testimony. Harden v. Marion Cnty. Sheriff's Dept. #14-1713, 799 F.3d 857 (7th Cir. 2015).
     An occasional employees of the Federal Emergency Management Agency (FEMA), which is an agency of of the Department of Homeland Security (DHS), filed an administrative claim of race, age, and sex discrimination with the DHS, based on Title VII. In a subsequent lawsuit, the trial court granted the employer's motion for judgment on the pleadings on an unlawful retaliation claim based on the failure to exhaust available administrative remedies because she did not amend her original administrative complaint to add the retaliation claim. A federal appeals court reversed the dismissal of the claim, finding that it was the EEOC's fault that the retaliation claim did not become part of the original case, as the EEOC's Office of Field Operations failed to consolidate her separate retaliation claim with the original complaint. Moreland v. Johnson, #15-1291, 2015 U.S. App. Lexis 20505 (7th Cir.).
     An employee of a public housing authority offered her resignation, but before her employment had ended, she testified against the employer's Executive Director, asserting claims of sexual harassment. She then tried to rescind her resignation, but the Executive Director rejected this. Overturning a trial court's summary judgment for the employer on an unlawful retaliation claim, a federal appeals court found that rejecting the rescission of the resignation could constitute an adverse employment action, and there was a substantial conflict of evidence as to whether the employer would have rejected the resignation rescission "but for" the testimony regarding sexual harassment. Porter v. Houma Terrebonne Hous. Auth. Docket: 14-31090 2015 U.S. App. Lexis 19938 (5th Cir.).
      The plaintiff presented no real evidence that a fire department requested, required, or purchased his genetic information, or discriminated against him on the basis of genetic information in violation of the federal Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. 2000ff-1. The trial court did not erroneously conclude that the employer's actions in placing him in administrative duty assignments were motivated by his refusal to take a stress test, and not in unlawful retaliation for his opposition to practices prohibited by GINA. The motivation was ensuring compliance with the department's Wellness Program and furthering its goals, and was also not motivated by national origin discrimination. Summary judgment in favor of the employer was upheld. Ortiz v. City of San Antonio Fire Dept. #15-50341 2015 U.S. App. Lexis 20014 (4th Cir.).
     When a woman from Saudi Arabia started to work at a county court, her clothing marked her as a Muslim. When she was assigned to child care duties, she was the only employee in that position who was an Arab or a Muslim. Her superior was an allegedly vocal Christian, and the employee filed internal complaints about his behavior, contending that he established a hostile working environment for her. Her superior said he was tired of her complaints and she was transferred to the court reporter's office, an assignment in which she wass allegedly treated badly and subjected to retaliation because she had filed EEOC complaints. She sued under Title VII and 42 U.S.C. Sec. 1983, asserting that her First and Fourteenth Amendment rights had been violated. A federal appeals court found that the plaintiff adequately stated a claim for a hostile work environment and that her superiors were not entitled to qualified immunity for their alleged actions of retaliation. The employee had engaged in protected conduct in complaining about alleged religious and national origin harassment. Her complaints about abusive conduct including screaming, prayer circles at work, social shaming, implied criticism of non-Christians expressed at work, and "uniquely bad treatment" of her were plausible. Huri v. Office of the Chief Judge, Cook County, #12-2217, 2015 U.S. App. Lexis 18296 (7th Cir.).
     A fire department employee told a co-worker that "he wanted to kill somebody, all of them," and also said that his children were going to "go over there" and "tune them up" in a context that made it apparent that he was talking about his superiors and co-workers. The fire chief investigated the statements and terminated the employee, and the Board of Fire and Police Commissioners voted to uphold the termination, largely on the basis of a co-worker's testimony that he had heard the troubling statements. A federal appeals court upheld the termination, noting that the Board's decision was made after a full and independent evidentiary hearing. It rejected the plaintiff's argued "cat's paw" theory of liability that discrimination and unlawful retaliation had taken place because the fire chief, an allegedly biased person lacking ultimate decision making powers deliberately uses the formal decision maker, in this case the Board, as a dupe to carry out a discriminatory action. But the Board, in this case, relied on the co-workers' testimony and that co-worker did not harbor any discriminatory animus. Woods v. City of Berwyn, #13-3766, 2015 U.S. App. Lexis 17913, 128 Fair Empl. Prac. Cas. (BNA) 129 (7th Cir.).
     A Correctional Department Lieutenant filed a lawsuit in federal court claiming both federal civil rights violations and violations of a California state whistleblower protection statute by his employer. He claimed that adverse actions, including his dismissal, were taken in retaliation for him disclosing alleged improper governmental actions to his superiors, including negligent inmate supervision resulting in an escape, exhibiting a movie to inmates that violated Department policy, attempts to collect overtime for work not done, and allowing in contraband. The trial court rejected the state whistleblower claim, finding that the plaintiff was barred from "relitigating" it because it had already been litigated during hearings before the state Personnel Board. A federal appeals court reversed, finding that the decision by the state Personnel Board did not preclude the plaintiff under theories of either res judicata or collateral estoppel from litigating his whistleblower retaliation damage claim in the trial court. Wabakken v. CA Dep't of Corr. & Rehab., #13-56075, 2015 U.S. App. Lexis 16307 (9th Cir.).
     A sergeant working at a county jail was also a union leader. The union initiated mandatory contract arbitration with the sheriff's officer. At the arbitration, an undersheriff testified regarding training on CPR, firearms, and Taser. The sergeant then testified that the undersheriff had misrepresented the degree of training provided. Following this, the sergeant was told to wear business attire or his uniform to subsequent arbitrations. He later wore a golf shirt and blazer and was investigated for disobeying a direct order. He was then told that there would be an investigation regarding his actions during a power outage at the jail, and another investigation regarding subordinates' charges against him. He was ordered not to inquire into this last investigation with any witnesses or investigators but admittedly asked his subordinates for details concerning it. He was subsequently suspended without pay for several days and demoted for having created an unprofessional and hostile environment for subordinates as well as having made derogatory statements to female detainees. In a lawsuit for unlawful retaliation, a federal appeals court upheld summary judgment for the county. While his testimony at the arbitration was protected by the First Amendment, he failed to prove that his demotion and suspension were the result of him being punished for his criticism, rather than being punished for his own "extensive misconduct." Boulton v. Swanson, #14-2308, 2015 U.S. App. Lexis 13195, 2015 Fed. App. 170P (6th Cir.).
     A city/county employee claimed that he was wrongfully fired in unlawful retaliation fo engaging in protected First Amendment speech, specifically complaining to his supervisors about the alleged unlawful hiring of temporary exempt employees in violation of the San Francisco Charter. A federal appeals court upheld the dismissal of the lawsuit, finding that the plaintiff's complaints arose primarily out of concern about his own professional advancement and his own status as a temporary employee. A due process claim also was rejected, as temporary, non-civil service employees did not have a protected liberty interest in continued employment.
Turner v. City and County of San Francisco, #13-15099, 2015 U.S. App. Lexis 9788 (9th Cir.).
     A sergeant working at a county jail was also a union leader. The union initiated mandatory contract arbitration with the sheriff's officer. At the arbitration, an undersheriff testified regarding training on CPR, firearms, and Taser. The sergeant then testified that the undersheriff had misrepresented the degree of training provided. Following this, the sergeant was told to wear business attire or his uniform to subsequent arbitrations. He later wore a golf shirt and blazer and was investigated for disobeying a direct order. He was then told that there would be an investigation regarding his actions during a power outage at the jail, and another investigation regarding subordinates' charges against him. He was ordered not to inquire into this last investigation with any witnesses or investigators but admittedly asked his subordinates for details concerning it. He was subsequently suspended without pay for several days and demoted for having created an unprofessional and hostile environment for subordinates as well as having made derogatory statements to female detainees. In a lawsuit for unlawful retaliation, a federal appeals court upheld summary judgment for the county. While his testimony at the arbitration was protected by the First Amendment, he failed to prove that his demotion and suspension were the result of him being punished for his criticism, rather than being punished for his own "extensive misconduct." Boulton v. Swanson, #14-2308, 2015 U.S. App. Lexis 13195, 2015 Fed. App. 170P (6th Cir.).
     A police chief sanctioned an officer for releasing to the media a recording of an Emergency Response Team's radio communications during an incident involving a suspect exchanging gunfire with officers and barricading himself inside a home. The officer claimed that this was unlawful retaliation for protected speech in violation of the First Amendment and a D.C. Whistleblower protection statute. The appeals court upheld the rejection of the First Amendment claim as the response team recording was within the provisions of a valid general order issued by the department against the disclosure of confidential information that could jeopardize ongoing investigations. The police department's interest in non-disclosure outweighed the interests of the public and the plaintiff in releasing the recording. Release of the recording could have harmed pending criminal investigations into the incident, since the confidential information concerning the barricade, if kept confidential, could provide a basis to gauge other evidence offered by witnesses and those involved in the incident. The whistleblower claim was rejected as the plaintiff failed to show how the release of the recording was a "protected disclosure" under the statute as in effect at the time of the incident. Baumann v. District of Columbia, #13-7189, 2015 U.S. App. Lexis 13530 (D.C. Cir.).
     After a paramedic/firefighter was suspended by the Fire District for failing to respond to a directive issued by the Fire Chief, he emailed a newspaper reporter with criticisms and concerns about the District and its chief. The email shocked and angered his co-workers and battalion chiefs found that it "fostered division" among co-workers and against the chief. The paramedic/firefighter was terminated. A federal appeals court rejected First Amendment retaliation claims, finding the defendants entitled to qualified immunity, as fire district board members reasonably believed that his statements were an attempt to undermine the chief's authority and would lead to disruption in the department. The court granted the plaintiff leave to amend his state law computer privacy claims, however, as he sufficiently alleged that the chief and his own ex-girlfriend had improperly accessed his email account and gained access to his private emails. Anzaldua v. Northeast Ambulance & Fire, #14-1850, 2015 U.S. App. Lexis 11906 (8th Cir.).
       Police officers were fired after they contacted an association, state officials, and the N.C. State Bureau of Investigation about alleged corruption and misconduct at their department. The defendants in their lawsuit were not entitled to qualified immunity on their First Amendment retaliation claims. The officers spoke as citizens on issues that were indisputably of public concern, and it was clearly established that speech about serious misconduct in a law enforcement agency was protected speech. Hunter v. Mocksville, # 14-1081, 2015 U.S. App. Lexis 10033 (4th Cir.).
     Anti-abortion demonstrators were planning to display signs with pictures of aborted fetuses outside an abortion clinic. An officer finishing an overnight shift drove by and noticed the demonstrators. He stopped his vehicle and told them they could not impede traffic or block anyone from entering the premises. He threatened them with arrest if they did not comply. One of the demonstrators subsequently claimed that the officer called her a "fat fucking cow," while others said the officer used profanity. While admitting that the confrontation had been "adversarial," the officer denied using profanity. Later, off-duty, and in civilian clothes, he returned to confront the demonstrators about their signs. He returned in his personal vehicle. He spoke to an officer on duty there, and to the female demonstrator he had previously confronted, allegedly making negative comments about her weight and touching her, and represented himself as an off-duty police officer. Another demonstrator requested assistance in dealing with him by dialing 911. A departmental investigation into his conduct concluded that his conduct towards the public was "harsh, profane, and unruly and caused a huge disturbance." He had previously received two written reprimands and five suspensions, and he was terminated after a hearing on the last incident. A federal appeals court upheld summary judgment against him on a First Amendment retaliation claim, finding that his statements were not constitutionally protected because they directly conflicted with his responsibilities as an officer and the department's interests in running an efficient law enforcement agency outweighed his free speech interests. The court overturned summary judgment in favor of the police board on the plaintiff's administrative review claim, as the trial court made that ruling spontaneously, without giving him an opportunity to argue it. Lalowski v. City of Des Plaines, #12-3604, 2015 U.S. App. Lexis 10151 (7th Cir.).
     Fire investigators for the District of Columbia sued under the D.C. Whistleblower Protection Act, claiming that they had been unlawfully reassigned to less desirable jobs in retaliation for them having accused some of their superiors of gross mismanagement and workplace racial discrimination. But the employer made the unrebutted explanation that they had been reassigned because prosecutors refused to work with them and not because of their filing of Equal Opportunity complaints regarding alleged racial discrimination. The plaintiffs' failure to rebut this explanation meant that they had failed to create a genuine issue of material fact as to the reason for their reassignment. Additionally, their transfers to their new assignments occurred before their racial discrimination complaints were filed. Bowyer v. District of Columbia, #13-7012, 2015 U.S. App. Lexis 11624 (D.C. Cir.).
     A former chief deputy in the sheriff's office sued the sheriff, claiming that his termination after he raised complaints about recordings being made in interrogation rooms violated his rights under a state whistleblower protection statute as well as constituting unlawful retaliation in violation of his First Amendment rights. The First Amendment claims failed because his complaints were made within the scope of his employment duties and therefore his speech was not protected. And he failed to establish a claim under the Louisiana whistleblower statute, because he did not show that the sheriff's office, in making the recordings, committed an actual violation of state law.
Wilson v. Tregre, #14-31179, 2015 U.S. App. Lexis 8582 (5th Cir.).
     A 51-year-old African American man served in a city fire department since 1986 and was one of two district chiefs of Fire Prevention. At one point, his duties were altered. While he did not receive reduced pay or a reduction in rank, he perceived the realignment as discrimination, which he believed was based on his race, color, or age, in addition to being retaliation for having given a statement supporting an EEOC claim against the assistant chief who altered his duties. A federal appeals court upheld a determination that his lawsuit over the 2011 alteration of his duties was not timely filed. However, even if it had been, he had failed to establish a prima facie case of either discrimination or retaliation either for the 2011 duty alteration or for his subsequent non-selection as District Chief of Inspections in 2012. The roles of the position he held and the job he sought were considered equivalent, and they were not different in working conditions, benefits, or compensation. Jenkins v. City of San Antonio Fire Dept., 14-50483, 2015 U.S. App. Lexis 6510 (5th Cir.).
     A police officer involved in two highly publicized incidents involving claims of excessive use of force was fired, and sued, claiming that the city and a safety manager proceeded against him in retaliation for his protected speech in violation of his First Amendment rights. A federal appeals court held that he failed to state claims upon which relief could be granted. As to his argument that the city would not have sought judicial review in state court of a Civil Service Commission decision in his favor if he hadn't made a statement opposing a rule change, the evidence showed that the city had already decided to fire him and appealed the decision before he even made his statement. Nixon v. City & County of Denver, #14-1165, 2015 U.S. App. Lexis 7211 (10th Cir.).
     A former employee of the Department of Veterans Affairs claimed that her employer had subjected her to unlawful retaliation after she reported alleged sexual harassment of interns. A federal appeals court found that all the adverse actions taken against her before September 2004 were "discrete acts" and not part of a "continuing violation" and therefore her claims as to them were time barred. When the plaintiff was transferred to a small windowless office, and allegedly stripped of all her duties, the plaintiff should have known that she had suffered an adverse employment action, and acted promptly to assert her claim instead of waiting almost three years to do so. Ayala v. Shinseki, #13-2260, 780 F.3d 52 (1st Cir. 2015).
     A black male of Jamaican descent worked for the U.S. Embassy in Saudi Arabia as the FBI's main liaison to Saudi intelligence. He accused certain supervisors of discriminating against him on the basis of race and national origin, after which one of those supervisors sent a special agent to Saudi Arabia on a short assignment where he grew suspicious about the plaintiff. An investigation later determined that any alleged security risks were "unfounded." He then filed a lawsuit claiming unlawful retaliation for the earlier discrimination complaints. Summary judgment for the FBI was upheld on appeal because the memo on which the plaintiff based his claim, which triggered the investigation was not written by one of the accused supervisors but by the special agent who was not himself accused of discrimination and had no apparent reason to engage in retaliation against him. Rattigan v. Holder, #13-5374, 780 F.3d 413 (D.C. 2015)
     A woman worked for a sheriff's department for over 30 years as chief dispatcher and office manager. When a new sheriff was appointed, she disagreed with him regarding the handling of bond money, which he wanted taken directly to court rather than deposited in the sheriff's office account. The sheriff gave the plaintiff a reprimand, based on her alleged failure to follow his directives. Refusing to sign the reprimand, she left work, walked home, and never returned. She claimed that she had faced illegal retaliation for speech on a matter of public concern. Upholding summary judgment for the defendant sheriff, the federal appeals court found that the reprimand did not affect the plaintiff's terms and conditions of employment, and therefore could not be the basis for a retaliation claim. The reprimand was not a materially adverse employment action since the plaintiff was not terminated, nor did she receive a cut in pay or benefits or any alteration to her job duties. Wagner v. Campbell, #14-2031, 2015 U.S. App. Lexis 3400 (8th Cir.).
     A city employee who suffered a knee injury on the job sued the city for disability discrimination under California state law, claiming that the city failed to provide a reasonable accommodation for his disability, failed to engage in an interactive process to try to find accommodations for him, and unlawfully retaliated against him for seeking a reasonable accommodation. An intermediate state appeals court found that summary judgment for the defendant city was proper because the evidence showed that he was no longer able to perform the essential functions of his solid waste equipment manager job after his injury. There was no reasonable accommodation that would allow him to do the job and there were no other vacant jobs for which he was qualified. The plaintiff's exercise of his right to a reasonable accommodation for his disability was not protected activity for purposes of a state law retaliation claim. Nearly v. City of Santa Monica, #B246634, 2015 Cal. App. Lexis 139.
    An officer with the U.S. Capitol Police claimed that her employer violated her rights under the Family Medical Leave Act, 29 U.S.C. Sec. 2615, and retaliated against her for trying to exercise her rights. She sought pre-approval under the Act for a "bank" leave when she was suffering from bouts of depression following her husband's suicide. The Capitol Police had in place a system allowing an employee to obtain a pre-approval of a "bank" of leave under the Act, without identifying specific start or end dates. After providing medical documentation, she was granted a bank of 240 hours of leave. But after approving the leave, her employer ordered her to submit to a fitness for duty exam, stating that the facts supporting her leave request were the basis for the order. Her police powers were then revoked and she was assigned to administrative duties while she waiting to take the exam. These allegations adequately supported an inference of retaliatory motive, so the trial court should not have dismissed the lawsuit. Further, an employer's actions with a reasonable tendency to "interfere with, restrain, or deny" the exercise or attempt to exercise a right to take family or medical leave is enough for a valid interference claim, even if the plaintiff employee actually took the leave. Gordon v. United States Capitol Police, #13-5072, 2015 U.S. App. Lexis 2556 (D.C. Cir.).
     A former reserve deputy claimed that the county, its sheriff, and an undersheriff removed him from conducting investigations and revoked his reserve commission in retaliation for him providing testimony to support claims by a former criminal defendant of mistreatment by federal law enforcement officers. A federal appeals court rejecting the First Amendment claims against the sheriff and undersheriff, ruling that, at the time of the events, it was not clearly established that such testimony was constitutionally protected, so they were entitled to qualified immunity. At the same time, the appeals court did hold that the testimony was constitutionally protected and that explanations that the defendants provided for their actions were pretextual. Seifert v. Unified Government, #13-3153, 2015 U.S. App. Lexis 3223 (10th Cir.).
     An officer claimed that the city that employed him retaliated against him for speaking to his commanding officers about an alleged arrest quota policy at his precinct. A federal appeals court vacated the trial court's summary judgment for the defendants, finding that his comments on precinct policy didn't fall within his official duties. He pursued the same avenue to complain about a precinct-wide policy as would a concerned civilian, and the existence of a comparable civilian analogue for his speech also supported the conclusion that he "spoke as a citizen." Matthews v. City of New York, #13-2915, 2015 U.S. App. Lexis 3016 (2nd Cir.).
     A police department employee claimed that he was retaliated against in violation of his First Amendment rights. The trial court found that his communications with the media about certain cases of interest enjoyed First Amendment protection. The plaintiff presented enough direct evidence of retaliatory intent from which a jury could reasonably have found a causal connection and the Department's adverse employment actions, establishing a prima facie case of First Amendment retaliation, so the defendants were not entitled to summary judgment. The alleged retaliatory acts included investigation into his personal affairs, serving him with disciplinary charges, reassigning him to a lower-paying administrative position, suspending him without pay, and eventually forcing his retirement. Smith v. County of Suffolk, #13-1230, 2015 U.S. App. Lexis 600 (2nd Cir.).
     A police detective was a friend of the former police chief, who was running against the incumbent mayor. He was not, however, involved in his campaign, and could not even vote for him based on his city of residence. He did, however, at the request of his mother, who was bedridden, pick up one of the candidate's campaign signs to replace one that had been stolen from her lawn. An officer assigned to the mayor's security staff saw this, and the next day, the detective was demoted to a walking post as a result of his "overt involvement in a political election." He sued, claiming that this was unlawful retaliation for protected First Amendment activity. A federal appeals court rejected his free speech claim, as he did not intend to convey a political message when he picked up the sign. He did not show retaliation for an exercise of the right to freedom of association as he had no affiliation with the campaign. Prior precedent barred a claim of unlawful retaliation based solely on a "perceived," as opposed to actual, exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610, 2015 U.S. App. Lexis 967 (3rd Cir.).
     A police sergeant claimed that her termination was retaliation for critical comments against the police chief that she made on her Facebook page. A federal appeals court rejected her First Amendment claim. While the statements she made were not within the ordinary scope of her duty, so that she was speaking as a private citizen, her comments were not on a matter of public concern, but rather primarily involved her displeasure with the chief's intra-departmental decisions that impacted her personally. Further, even if they had involved matters of public concern, the department's substantial interests in preventing insubordination and maintaining discipline and close working relationships outweighed her minimal interest in making the statements. Graziosi v. City of Greenville, #13-60900, 2015 U.S. App. Lexis 370 (5th Cir.).
     A woman employed by a state corrections department as a substance abuse counselor for 19 years lost her job when her employer contracted out its counseling program to a private company. She claimed that the private company's decision not to hire her stemmed from an incident a year before when she and a coworker complained that their desks were being used after hours to have sex on. She claimed that she was told that it was "just" staff members, not inmates, having sex on the desks, and that she could simply wash down her desk. It later was discovered that her coworker and the Major in charge of custody were having an affair, which led to both of them being fired, but the Major quickly returning to work at the prison on a contract basis. When the coworker filed a sex discrimination lawsuit, the plaintiff supported her. She now claimed that the failure to hire her back once counseling was contracted out constituted sex discrimination, age discrimination, and unlawful retaliation. Upholding summary judgment for the defendant employer, the private company providing counseling at the prison, the federal appeals court found that the plaintiff was merely the "unfortunate victim" of a reduction in workforce, rather than retaliation or discrimination. Ripberger v. Corizon, Inc., #13-2070, 2014 U.S. App. Lexis 23186, 125 Fair Empl. Prac. Cas. (BNA) 760 (7th Cir.).
     A sergeant employed by a county sheriff's department also served as the chairman of a law enforcement political action committee (PAC). The sheriff, up for reelection in a contested race, approached him while he was on duty and told him the PAC should support him. The sergeant replied that the sheriff would be treated just the same as any candidate and that the PAC's members would vote on whom to endorse. The sheriff allegedly told the sergeant that he would be transferred to jail duties if the PAC failed to support his reelection. The sheriff allegedly knew that the sergeant supported his opponent. The PAC did not endorse the sheriff, and three weeks later, the sheriff transferred the sergeant to a job at the jail that was "extremely less desirable" than his former duties, according to a lawsuit for political discrimination. He continued working at the jail for a year before being fired after disseminating a recording allegedly containing the sheriff's threat against another officer. The sheriff was not entitled to qualified immunity on the retaliatory transfer claim as the sergeant sufficiently alleged that he was demoted in violation of his First Amendment rights for failing to endorse the sheriff. The sheriff was entitled to qualified immunity on the claim that the sergeant was terminated due to protected activities as there were no details supporting an inference that the sergeant was involved in the recording that he was allegedly fired for disseminating, and therefore no causal connection between protected activities and the firing. Burnside v. Nueces Cnty., #13-41344, 2014 U.S. App. Lexis 23126 (5th Cir.).
    Police officers claimed that they were fired because they exposed the criminal activities of one of their municipality's alderman, rather than for deficient performance, as the city claimed. The trial court entered summary judgment for the defendant city based on the officers' failure to explicitly invoke 42 U.S.C. Sec. 1983 as the basis for their civil rights due process claim. Overturning a federal appeals court's affirmance of this result, the U.S. Supreme Court noted that federal rules concerning pleading in lawsuits only require “a short and plain statement of the claim showing that the pleader is entitled to relief," and the lawsuit could not be rejected merely for an "imperfect statement" of the legal theory relied on. Additionally, qualified immunity was not applicable here, as no claims were made against any individual municipal officer, only against the city The complaint in the lawsuit adequately informed the city of the factual basis for the claim. Johnson v. City of Shelby, #13-1318, 135 S. Ct. 346, 190 L. Ed. 2d 309, 2014 U.S. Lexis 7437.
     A trial court improperly granted summary judgment on claims by a county employee and her union that she faced unlawful retaliation in violation of her First Amendment rights because of protected speech to which the employer objected. The federal appeals court ruled that the plaintiffs showed a genuine factual dispute as to whether an internal investigation of the employee was retaliatory. Additionally, the trial court should evaluate in a more detailed manner a number of incidents that it had previously dismissed collectively as constituting "petty workplace gripes" as there was evidence that some of the employer's actions may have been taken as part of a general campaign against the employee in retaliation for her speech, and these incidents might have greater materiality towards the retaliation claim than when they were viewed in isolation. A reasonable juror might find that some of these actions could deter protected speech. As to three involuntary transfers, the employee produced evidence that they came shortly after her acts of speech and that her employer's non-retaliatory business justifications for them were pretextual. Thomas v. County of Riverside, #12-55470, 763 F.3d 1167 (9th Cir. 2014).
     A psychologist at an Illinois state prison claimed that he suffered retaliation in violation of the First Amendment after he was elected to his union's Executive Board and engaged in advocacy for union members, voicing employee concerns to management. Adverse actions allegedly included relocating his office, increasing his work load, denying his request for advance leave time, revising directives affecting his job duties without his input, removing him from a hostage crisis team, and making him meet with mentally ill inmates without a guard in the same room. He was, however, not fired, disciplined, or denied an employment opportunity. A federal appeals court upheld summary judgment for the defendants, ruling that because the plaintiff was acting as a union official, not as a public employee, when he made the statements that were at issue, and they were therefore not protected by the First Amendment. His complaints to management about the collective bargaining agreement and work conditions were merely employee grievances and he did not show that he addressed matters of public concern. Olendzki v. Rossi, #12-1340, 2014 U.S. App. Lexis 16866 (7th Cir.).
  A corrections officer was fired from his employment with the county after he spoke to a news reporter about the arrest of a university football player without authorization from the sheriff. He argued that this violated his First Amendment right to free speech. Rejecting this claim, a federal appeals court found that the statements made were ordinarily within the scope of his duties, and did not merely concern those duties. He did not speak to the news reporter as a private citizen and therefore his speech was not protected against employer discipline under the First Amendment. Hurst v. Lee County, #13-60540, 2014 U.S. App. Lexis 16153, 38 I.E.R. Cas. (BNA) 1607 (5th Cir.).
     A deputy who worked at a county jail was vice president of an employee union. He claimed that a seven-day suspension that he received was retaliatory in violation of his First Amendment rights. He had told a captain and a sergeant that he believed that mandatory overtime imposed the previous day violated a collective bargaining agreement. While he was speaking about a matter of public concern in his capacity as the union vice president, and therefore as a citizen, he failed to show a causal connection between his comments and the suspension, which the employer said was for his having signed a deficient memo book. Graber v. Clarke, #13-2165, 763 F.3d 888 (7th Cir. 2014).
     White employees of a sheriff's department stated that they had shaved their heads as a sign of solidarity with a coworker who lost his hair after chemotherapy for cancer. The department, however, then launched an investigation into claims that the plaintiffs were white supremacist skinheads. They filed complaints of racial harassment to the EEOC. They sued the Department, claiming unlawful retaliation against them for their racial harassment complaints and threats to charge them with making a false report to the EEOC. While this made out a prima facie case of retaliation, the retaliation claims were properly dismissed. The Department showed a non-retaliatory purpose for the threats as the plaintiffs provided very inconsistent accounts concerning a black deputy's alleged harassing conduct of labeling them skinheads, and the plaintiffs failed to show that this was just a pretext for retaliation. Cox v. Onondaga Cnty. Sheriff's Dep't., #12-1526, 2014 U.S. App. Lexis 13962, 98 Empl. Prac. Dec. (CCH) P45120, 123 Fair Empl. Prac. Cas. (BNA) 1185 (2nd Cir.).
     An investigator looking for breaches of security at a maximum security prison found out that employees on the night shift were having sex on the desk of a female substance abuse counselor who worked there. He told her that he wasn't concerned about this happening, but that she should consider washing her desk each morning. The superintendant subsequently stated that he also was not concerned about the sex, as long as prisoners were not involved. Soon after, the substance abuse counselor and the Major in charge of custody were both fired when the superintendant learned that they were having an affair and allegedly having sex on his desk. The Major appealed his termination and received a settlement allowing him to keep his benefits and pension, to soon get unemployment benefits and to keep working at the prison as a contractor. He was called to testify against the counselor at her appeal, and she was not given similar opportunities and benefits. A federal appeals court found that her lawsuit stated viable claims for sex discrimination, and a hostile work environment, but upheld a trial court ruling that she failed to present sufficient evidence of unlawful retaliation to overcome summary judgment. The appeals court rejected the trial court's finding that the sexual tenor of the work environment at the facility was not pervasive or severe enough to be hostile, as there was evidence of a constant stream of sexually charged comments and her complaints about it were ignored. Orton-Bell v. State of Indiana, #13-1235, 2014 U.S. App. Lexis 13993, 123 Fair Empl. Prac. Cas. (BNA) 1200 (7th Cir.).
     A former police officer claimed that he was not fired, as the department claimed, for working through lunch without requesting overtime, but rather in retaliation for testifying in a lawsuit brought by a fellow officer concerning a FLSA claim. His retaliation claim was not precluded by the police department's board of rights' recommendation that he be fired for insubordination fo not claiming overtime. The evidence in the case did not support the city's claim that the firing was based on the content of his testimony rather than the mere fact that he testified. The officer was awarded $50,000 in liquidated damages and $579,000 in attorneys' fees, and the appeals court affirmed this award. Avila v. LAPD, #12-55931, 2014 U.S. App. Lexis 13052, 22 Wage & Hour Cas. 2d (BNA) 1612 (9th Cir.).
     A forensic psychologist who worked as a consultant for the county public defender's office claimed that his hours were reduced and that he was later fired in retaliation for providing testimony about a state court judge, which he argued was constitutionally protected speech. Summary judgment for the defendant was vacated when a reasonable fact finder could find that the subjective motivation for the reduction in hours and a motivating factor in the subsequent termination had, in fact been the testimony. The defendant was entitled, however, to qualified immunity in his individual capacity where the evidence showed both unlawful and lawful motivations for the defendant's actions. Prevailing law did not require, under these facts, that the merits of the case had to be decided in the plaintiff's favor. Brannon v. Finklestein, #12-15988, 754 F.3d 1269 (11th Cir. 2014).
     A county employee who took various time off after suffering injuries in an accident claimed that she was fired in retaliation for taking leave under the Family and Medical Leave Act. Rejecting this claim, the appeals court found that even taking the evidence in the light most favorable to the plaintiff, the county established that she would have been fired regardless of her request for leave. Reasons given for her termination included failure to timely submit Fanily and Medical Leave Act forms in a timely manner, untruthfulness regarding the extent of her injury and her ability to work, abuse of sick leave, personal use of a county digital camera, and failure to schedule a requested independent medical examination (IME). Dalpiaz v. Carbon County, Utah, #13-4062, 2014 U.S. App. Lexis 14165 (10th Cir.).
     While the plaintiff, a black male detective, properly had his unlawful retaliation claims rejected, summary judgment should not have been granted on his race discrimination claim based on his failure to be transferred to the Connecticut Department of Public Safety's Major Crimes Van. Detectives in that unit dealt with homicides, and in the relevant five year period, all detectives assigned to that unit were white. Abrams v. Dept. of Public Safety, #13-111, 2014 U.S. App. Lexis 13582 (2nd. Cir.).
    Two employees of a county Emergency Services Department, who were members of a firefighters' union local, argued that they had been subjected to retaliatory fitness-for-duty examinations as a result of their prior grievances and charges against the county. A Jury agreed, but the trial court found that insufficient evidence supported the jury's verdict. The appeals court reversed, reinstating the jury verdict, ruling that the jury was permitted, under the evidence submitted, to find that an intent to retaliate was a "but-for" case of the county's actions. Booth v. Pasco Cty., FL, #12-4194, 2014 U.S. App. Lexis 12838 (11th Cir.).
     An ex-employee of a community college who directed a program for underprivileged youth there learned that a state representative also employed by the program had not been reporting for work, so he fired her, and later testified under subpoena in two federal prosecutions against the representative for mail fraud and theft in a program receiving federal funds. The community college president later terminated the director, citing budget shortfalls. The director claimed, however, that it was because of his testimony. A federal appeals court ruled that the testimony was not protected by the First Amendment because he was a public employee and did not speak as a citizen while testifying. The appeals court also found that the community college president was entitled to qualified immunity. The U.S. Supreme Court reversed, unanimously finding that the testimony given was protected by the First Amendment, while agreeing that the community college president was entitled to qualified immunity in his individual capacity, as the law on the subject had not been clearly established, so he reasonably could have believed that a government employer could fire an employee because of testimony given outside the scope of his ordinary job responsibilities. He was entitled to Eleventh Amendment immunity in his official capacity. Further proceedings were ordered to determine if the community college president's successor could be ordered to reinstate the plaintiff. The sworn testimony was outside the scope of the plaintiff's ordinary job duties and constituted speech as a citizen on corruption in a public program, a matter of public concern. There was no indication, further, that the testimony was false and erroneous. Lane v. Franks, #13-483 189 L. Ed. 2d 312, 2014 U.S. Lexis 4302.
     A deputy sheriff ran for election as sheriff, but was defeated by the incumbent. The day after the election, the deputy was fired, and he asserted a claim for First Amendment retaliation. The sheriff was entitled to qualified immunity for the firing, as at least some of the deputy's campaign speech did not have First Amendment protection. The sheriff could have reasonably believed that some of the deputy's statements could be potentially damaging to and disruptive in relation to co-workers' harmony and discipline. He also could have reasonably believed that the decision to fire the deputy was within the "breathing room" he had as a public official to make reasonable choices, even if they are mistaken. Nord v. Walsh County, #12-3249, 2014 U.S. App. Lexis 12019 (8th Cir.).
     When the record showed that a former jail guard had unsuccessfully contested her termination in three prior federal lawsuits (as well as two state lawsuits), she was properly barred from pursuing her current claim that she was fired in retaliation for having supported her co-worker's sexual harassment claim. She was fired after she was investigated for smuggling drugs and contraband to prisoners and was arrested for shoplifting. The fact that her current lawsuit made additional race and sex discrimination claims not previously raised did not avoid the application of the principles of preclusion or res judicata, requiring all legal theories arising from the same event to be brought in a single lawsuit. The appeals court further noted that the immediate lawsuit was brought approximately a decade after the expiration of the applicable statute of limitations. The present lawsuit was deemed frivolous. Averhart v. Sheriff of Cook County, Ill., #13-2949, 2014 U.S. App. Lexis 9874 (7th Cir.).
     A female African-American employee of the Merit Systems Protection Board (MSPB), the federal entity charged with addressing the grievances of federal workers challenging discriminatory employment practices, claimed that her supervisors had created a hostile work environment discriminating against her on the basis of both race and sex. Upholding summary judgment for the employer, a federal appeals court found that while the supervisors' actions "may have been unprofessional, uncivil, and somewhat boorish, they did not constitute an adequate factual basis for the Title VII claims presented here." The court found that alleged selective enforcement of a time and attendance policy was not severe or pervasive enough to create a hostile working environment. Further, the employee's performance reviews were not uniformly negative, and criticisms of her had some legitimate basis, for which areas of improvement were recommended. An "outburst" by a supervisor and coworker was an isolated expression of frustration, even if ill-mannered and tactless. The plaintiff's complaint also failed to clearly raise a retaliation claim. Brooks v. Grundmann, #12-5171, 2014 U.S. App. Lexis 6942, 122 Fair Empl. Prac. Cas. (BNA) 661 (D.C. Cir.).
     An African-American male who worked as a public safety officer for a city for 23 years claimed that he was subjected to heightened scrutiny, selectively enforced policies, and harassment and discrimination by various individuals which the employer was complicit in, all on the basis of either his race or his complaints about discrimination. He pointed to a performance evaluation downgrade, denials of a request to attend outside training, and tampering with an "Obama screensaver" on his computer. After he filed two EEOC charges, he was involved in a conflict with other officers at an event at which President Obama was present. After information about the incident appeared in the press, he resigned, but claimed that he was constructively discharged. A federal appeals court found that he failed to show that he had been constructively discharged, defeating his race discrimination claim. It also ruled, however, as to his Title VII retaliation claim, that the requirement that he show a "materially adverse action" for retaliation was substantially different than the "adverse employment action" element in a Title VII race discrimination claim, so the fact that he could not show that he was constructively discharged did not dispose of his retaliation claim, given the presence of evidence of other adverse employment actions. For retaliation, he only needed to show that an action might have dissuaded a reasonable employee from asserting or supporting a discrimination charge. The appeals court rejected a First Amendment retaliation claim, since there was no evidence that he had complained about a purported illegal activity. Laster v. City of Kalamazoo, #13-1640, 2014 U.S. App. Lexis 4700, 2014 Fed App. 48P (6th Cir.).
     A federal trial court improperly dismissed a woman's gender discrimination claim against a municipality for refusal to hire her as a firefighter. It was reasonable to infer that the employer declined to hire her seven times, despite the fact that she was the most qualified candidate, because she was a woman, and only subsequently hired her after an adverse EEOC determination on her sex discrimination claim. The trial court also erroneously found the plaintiff's post-hiring retaliation claims implausible solely on the basis of a five month time period between the protected conduct and the adverse employment event. Garayalde-Rijos v. Municipality of Carolina, #13-1487, 2014 U.S. App. Lexis 5798 (1st Cir.).
     A female former police officer received a jury award of $300,000 in compensatory damages and $7.2 million in punitive damages from a city Board of Police Commissioners on an unlawful retaliation claim. She had asserted that a male sergeant, who had been her supervisor, sexually harassed her by creating a mock "Wanted" poster displaying her picture and making comments about her body. She also said that, despite the fact that she was married and his subordinate, he had asked her to skinny-dip in his hot tub and to sit on his lap. The jury returned a verdict for the defendant municipality on the sexual harassment claim, but awarded damages on the claim that the officer faced retaliation after she complained about her supervisor's alleged conduct. She claimed that, after she complained, a Lieutenant started assigning her to unfavorable shifts, evaluating her less favorably in performance reviews, and denying requests off for training that others were allowed to attend, Ross-Paige v. St Louis Board of Police Commissioners, St. Louis Circuit Court (March 21, 2014).
    A heterosexual man who was a city employee asserted a valid claim for same-gender sexual harassment under California law against a male supervisor who allegedly made numerous gifts and frequent lunch purchases for him, along with making sexual jokes and displays of pornographic computer images over a period of several months. Summary judgment was properly granted, however, on similar claims against a second male supervisor. While he had displayed pornographic computer images to a group of employees, there was no allegation that he in any way tried to pursue a romantic or sexual relationship with the plaintiff, that he made any sexual proposals, either explicit or implicit, towards him, or that he acted out of any sexual interest in the plaintiff. Judgment for the defendant city on sexual harassment and unlawful retaliation claims were reversed. The trial court should not have excluded the plaintiff's testimony about explicit sexual images that he saw on a supervisor's computer, as it was relevant to whether the employee later suffered adverse employment actions in retaliation for engaging in the protected activity of complaining about those images. Lewis v. City of Benicia, #A134078, 2014 Cal. App. Lexis 282.
     While there was a settlement agreement in place concerning certain issues arising in a firefighters corps, that agreement did not bar claims for alleged unlawful retaliation against the plaintiff, a transitory employee, for unlawful retaliation against her that arose after the settlement agreement. Specifically, she claimed that she was subject to various forms of abuse in retaliation for her early lawsuit claiming that she was not hired as a firefighter because of her gender. Rodriguez-Vives v. PR Fire Fighters Corps, #13-1587, 2014 U.S. App. Lexis 2894 (1st Cir.).
     In a lawsuit concerning a disability discrimination claim by a firefighter who lost all vision in one eye in an accident unrelated to work, there was a genuine issue of fact as to whether driving a fire apparatus under emergency lights was an essential function of a firefighter's job. The department claimed that his vision loss prevented him from driving at high speeds. The trial court prematurely ruled, as a matter of law, that the employee could not meet the burden of demonstrating that his requested accommodation was reasonable. The parties disputed whether there was a vacant job opening in the Fire Prevention Bureau when the plaintiff made a request for a transfer. A First Amendment retaliation claim was rejected, as the firefighter's testimony that was supposedly the basis for the retaliation was about a purely private matter. Rorrer v. City of Stow, #13-3272, 2014 U.S. App. Lexis 3592, 2014 Fed App. 38P (6th Cir.).
     A former fire captain claimed that his termination was an act of political discrimination in violation of his First Amendment rights in retaliation for his support for a candidate for Fire Commissioner. A federal appeals court rejected this claim, finding that the employer gave legitimate business-related reasons for their personnel decisions, including a new familial relations policy forbidding officers from working shifts with or supervising their family members, such as the plaintiff's wife, a full time firefighter, and that the employee failed to show that the reasons given were pretexts. Pierce v. Cotuit Fire District, #13-1428, 2014 U.S. App. Lexis 1746 (1st Cir.).
   The Library of Congress recognizes some employee groups and allows them to use meeting rooms and obtain other benefits. An non-profit organization composed of current and former employees of the library argued that denying it such benefits violated its rights. A federal appeals court rejected this claim, in the absence of any allegation that denying the group recognition amounted to unlawful retaliation for statutorily protected employee or applicants. Howard R.L.Cook v. Billington, #12-5193, 2013 U.S. App. Lexis 24749 (D.C. Cir.).
      An officer was placed on paid leave after a hearing officer recommended his termination while investigating an allegation of him lying about the contents of a call from a police chief based on a recording that served as part of a list of grievances against the chief. He was later reinstated and sued, claiming unlawful retaliation in violation of the First Amendment for his complaint about the chief. A federal appeals court upheld a ruling that the statements were not protected speech as they had not addressed a matter of public concern. The defendants had been justified in bringing the charge based on the results of the investigation. Swetlik v. Crawford, #12-2675, 2013 U.S. App. Lexis 25589 (7th Cir.).
     A police officer argued that the city and his superiors unlawfully retaliated against him in violation of his First Amendment rights by firing him because he kept expressing concerns about work-related safety issues to his supervisors. A federal appeals court rejected this claim, ruling that the evidence presented did not establish a First Amendment retaliation claim. A government employee, in reporting safety concerns to his supervisors, acting under a duty to do so, was not expressing himself as a private citizen so that his expression was not protected by the First Amendment. The defendants were entitled to judgment as a matter of law. Hagen v. City of Eugene, #12-35492, 2013 U.S. App. Lexis 24029 (9th Cir.).
     A prosecutor filed felony charges against a correctional officer who took his cell phone inside a facility in violation of departmental policies and Illinois law, making 30 calls from work. Another officer spread the news of this to fellow employees. A casework supervisor called the prosecutor, urging him to drop the charges and let the matter be handled in the employee disciplinary process. Internal affairs learned of this and investigated the supervisor, who was reprimanded and suspended for five days. He sued, claiming he was subjected to unlawful retaliation for protected speech. A federal appeals court upheld a ruling that the defendants were entitled to qualified immunity from liability as no clearly established rights were violated. Further, the plaintiff had not proven his case as a matter of law. His speech was not constitutionally protected since the interests in maintaining workplace order and security outweighed the plaintiff's interests in expressing his opinion on a work-related prosecution. Volkman v. Ryker, #12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).
     A federal appeals court upheld a $1.1 million jury award in favor of a terminated deputy on a claim that he suffered retaliation for exercising his First Amendment rights. After he used pepper spray and physical force to subdue a motorcyclist fleeing from a fellow officer, he submitted his report. Allegedly alarmed that the incident could result in a civil damages lawsuit, officers in the upper echelon of the chain of command supposedly authorized detectives to interrogate him aggressively and also ordered him to revise his report. The deputy opposed this order, regarding it as legally and factually unwarranted. After he broadly publicized this to numerous public officials, the media, and others, representing this as showing corrupt and unlawful practices occurring in the sheriff's office, the sheriff fired him. A federal appeals court ruled that the sheriff was not entitled to qualified immunity and therefore upheld the jury award. Terminating him for publishing documents from the office's grievance proceedings violated his clearly established First Amendment rights. Durham v. Jones, #12-2303, 2013 U.S. App. Lexis 24507 (4th Cir.).
     A California public employee is required to exhaust the administrative remedy established in Labor Code §98.7 before filing a suit in a state trial court alleging a retaliatory discharge in violation of §1102.5 and §6310. In this case, the plaintiff claimed that they were fired in retaliation for complaining about illegal smoking in the workplace. His claims were properly dismissed as he failed to exhaust his administrative remedies before filing suit. McDonald v. State of California, #C069646, 219 Cal. App. 4th 67, 161 Cal. Rptr. 3d 520, 2013 Cal. App. Lexis 683.
     A county employee filed suit under the Family Medical Leave Act, 29 U.S.C. Sec. 2601, claiming that she was improperly demoted in retaliation for having left work to take care of her ill uncle. The trial court granted summary judgment to the defendants. On appeal, the court rejected the plaintiff's argument that the employer was equitably estopped from disputing her eligibility for leave because her manager had approved it. Assuming for the purposes of argument that equitable estoppel under federal common law applied to the Family Medical Leave Act, the plaintiff failed to assert a valid case for estoppel in this case. She failed to show that she relied on any misrepresentation. Dawkins v. Fulton County, #12-11951 2013 U.S. App. Lexis 19918 (11th Cir.).
     A former state assistant attorney general claimed that she was subject to disability discrimination because her employer failed to provide her with a free on-site parking space as an accommodation for her disability. She also claimed that she was fired in retaliation for filing discrimination claims with the EEOC. The trial court ruled erroneously on the parking space issue because it required that the plaintiff show a connection between the requested accommodation and her job's essential functions. The retaliation claim, however, was properly rejected because the employer came forward with a non-retaliatory reason for the firing and the plaintiff failed to present any evidence that this was just a pretext. Feist v. State of Louisiana, #12-31065 2013 U.S. App. Lexis 19133, 119 Fair Empl. Prac. Cas. (BNA) 1724 (6th Cir.).

      An en banc panel of the 9th Circuit overruled a previous decision, Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696 (9th Cir. 2009) which held that an officer had no First Amendment protection from employer retaliation for his report of internal corruption to the FBI. The court reasoned that, after Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make a "practical" inquiry to determine the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation claims. The court also held that being placed on administrative leave, as the plaintiff was, could amount to an adverse employment action. The dismissal of the retaliation claim was therefore reversed. Dahlia v. Rodriguez, #10-55978, 2013 WL 4437594, 2013 U.S. App. Lexis 17489 (en banc 9th Cir.).
    An assistant state's attorney was subpoenaed by a special prosecutor to testify before a grand jury and then at a trial arising out of an investigation of his boss for allegedly improperly influencing cases involving political allies and relatives. His boss later interrogated him and fired him. Suing, he claimed that his termination was unlawful retaliation for his exercise of his First Amendment rights by offering truthful eyewitness testimony. A federal appeals court rejected the trial court's conclusion that the testimony was not constitutionally protected because it was made as part of his official duties. While the plaintiff had worked in criminal justice, presenting eyewitness testimony in court was not part of his employment duties. The appeals court also found that First Amendment protection for giving such testimony was clearly established, rejecting a qualified immunity defense. Punishing someone for subpoenaed testimony, the court said, chills civic discourse "in significant and pernicious ways." Chrzanowski v. Bianchi, #12-2811, 2013 U.S. App. Lexis 16053 (7th Cir.).
    An employee at a county jail wrote a letter to the editor of a newspaper during an election campaign for sheriff, expressing his support for the current sheriff's reelection and opposing his political opponent. When the opponent was elected, the employee and a number of others were told that they had two months to improve conditions at the jail or they would be fired. Subsequently, the employee was demoted, and he took retirement, and he sued the sheriff, his office, and the county for unlawful retaliation in violation of the First Amendment. A federal appeals court found that summary judgment for the defendants was inappropriate since there was evidence from which a jury could find that the defendants had failed to show that they would have taken the same actions against the plaintiff in the absence of his protected speech. The court found that the plaintiff, in writing the letter, was speaking as a citizen supporting a candidate during an election. Haverda v. Hays County, #12-51008, 2013 U.S. App. Lexis 14485 (5th Cir.).
     A former university employee of Middle Eastern descent claimed that he had been constructively discharged by racially and religiously motivated harassment and also that in retaliation for complaining about the harassment, efforts were made to interfere with a hospital's job offer to him, resulting in the offer's withdrawal. After a jury returned a verdict for the employee on both claims, a federal appeals court overturned the harassment/discrimination claim, but upheld the verdict on the retaliation claim. The U.S. Supreme Court vacated the ruling on the retaliation claim, finding that the legal standard to prevail had to be to show "but for causation," to prove that the harm would not have occurred in the absence of the alleged wrongful actions (unlawful retaliation) of the employer, not a lessened causation test used in an EEOC manual, requiring only a showing that retaliation was a motivating factor in the action taken causing the harm. Because the wrong legal standard was used, further proceedings were required. University of Texas Southwestern Medical Center v. Nassar, #12-484, 2013 U.S. Lexis 4704.
     A police officer claimed that he was unlawfully denied time-off awards in retaliation for engaging in protected activity, filing an earlier employment discrimination claim that was settled. The time-off awards gave an employee paid leave on five occasions over the next three months. He claimed that certain actions he had performed in the prior three months, following the settlement of his discrimination claims, merited the time-off awards, such as making an assault arrest, pulling a person out of an overturned car, etc. The fact that other employees were also involved in some of the same incidents and that no one else was commended for these actions either undermined his retaliation claim. He failed to show his entitlement to the awards, and therefore, the failure to nominate him for them did not materially affect the terms of his employment. Bridgeforth v. Jewell, #12-5015, 2013 U.S. App. Lexis 13467 (D.C. Cir.).
     A police department detective supported a candidate for mayor in a party primary. When the candidate lost, the detective talked to a reporter about the election. One day after these comments were published, the detective was reassigned to station duty officer, a more deskbound position. He sued for unlawful retaliation in violation of the First Amendment on the basis of his support for a political candidate, and for demotion and constructive discharge without due process. The defendants counterclaimed for abuse of process and malicious prosecution, and the trial court granted the defendants summary judgment on the plaintiff's claims and summary judgment to the plaintiff on the defendants' abuse of process claim but not on their malicious prosecution claim, which the parties subsequently agreed to be dismissed. The appeals court reversed on the retaliation claim, finding that there was enough evidence for a reasonable jury to conclude that the reassignment was motivated at least in part by a retaliatory motive, after which the defendants would have to try to show that they would have taken the same action even without the protected speech. Peele v. Burch, #12-3562, 2013 U.S. App. Lexis 13800 (7th Cir.).
     Three jail employees claimed that the defendants, who were supervisors or officials at the jail, took retaliatory adverse employment actions against them in violation of their First Amendment rights in response to a parody that only one of them created which suggested that the defendants were corrupt and to the plaintiffs later filing a lawsuit based on the alleged retaliation. A federal appeals court found that none of the conduct for which the plaintiffs claimed to have been retaliate against was protected by the First Amendment as it did not involve matters of public concern, but rather was about their employment and supposed corruption involving preferential hiring and staffing, selective enforcement in matters of employee discipline and other forms of favoritism. Singer v. Ferro, #11-3919, 2013 U.S. App. Lexis 6576 (2nd Circuit).
     A police officer who led the officers' union helped lead the union in criticizing the police chief and holding a vote of no confidence in him. He claimed that the chief delayed his salary increase in retaliation for his First Amendment protected free speech activity. A federal appeals court agreed, finding that the speech involved was on issues of public concern, the police chief's performance of his duties, and the delay in the pay hike could be seen as an adverse employment action. Summary judgment in favor of the chief was reversed on claims against the chief. The appeals court upheld, however, summary judgment on a municipal liability claim. Ellins v. City of Sierra Madre, #11-55213, 2013 U.S. App. Lexis 5731 (9th Cir.).
     Present or former sergeants with the Jersey City Police Department claimed they had been passed over for promotion to lieutenant, despite having passed the civil service exam for the position, in retaliation and for political reasons, based, in part, on the support one of them gave to the mayor's opponent. Summary judgment for the defendants was overturned as the retired sergeant who had supported the mayor's opponent had presented sufficient evidence that the reasons given for her non-promotion may have been pretextual. There was a genuine issue as to whether her political conduct had been a motivating factor on the decision not to promote several other sergaents. Montone v. City of Jersey City, #11-2990, 2013 U.S. App. Lexis 4720 (3rd Cir.).
     A Hispanic police officer was promoted to sergeant. He claimed that the department and police chief subsequently failed to promote him to lieutenant and initiated a number of internal affairs investigations into his conduct that were based on his race or national origin. He also claimed that the police chief retaliated against him because he spoke out at a press conference about an incident in which some of the city's officers used excessive force against a Hispanic person, in violation of his First Amendment rights. The court rejected these claims, finding that the officers had failed to show that reasons given for the failure to promote him, such as a pending hearing on misconduct charges, were pretextual, or that discriminator animus motivated the investigations against him. As for the First Amendment retaliation claim, while the appeals court agreed that speaking out concerning alleged excessive use of force by the department against Hispanics was a matter of public concern, the police chief was entitled to qualified immunity from liability. The court found no evidence that the chief decided not to promote the plaintiff or initiated the investigations against him for any retaliatory reason. Garcia v. Hartford Police Department, #11-4618, 2013 U.S. App. Lexis 1920 (2nd Cir.).
     A nurse working for a correctional medical provider suffered an off-duty injury shattering the right side of her pelvis while horseback riding. She was later fired, and claimed that this happened in rertaliation for her requesting an accommodation for her disability under federal and state law. She had needed surgery and had a number of restrictions, including using crutches and not using her hands for lifting. Her ability to bend and squat was also limited. The trial court granted summary judgment to the defendant employer. The federal appeals court reversed, finding that the plaintiff presented sufficient circumstantial evidence from which a jury could conclude that her supervisor was hostile to any accommodation of her disability, based on both comments and actions. The jury could have concluded that the plaintiff's refusal to obey one instruction from that supervisor was only a "convenient pretext" for firing an employee who had repeatedly asked for accommodations of her disability. Kelley v. Corr. Med. Servs., Inc., #11-2246, 2013 U.S. App. Lexis 2588 (1st Cir.).
    A firefighter claimed that 15 different defendants including members of the fire and police departments had unlawfully retaliated against him for speaking out about issues involving his employer. Claims against some of the defendants were dismissed but the remaining defendants sought to appeal the denial of their motion for qualified immunity. While the appeal notice filed had all defendants' names in the case caption, the text of the notice only referred to one defendant. After the 30-day appeals period had expired, the defendants, without seeking leave from the court, filed another appeals notice, the body of which listed twelve defendants as appealing. That was untimely, and the appeals court lacked jurisdiction to consider their appeal. Gusler v. The City of Long Beach, #11-4493, 2012 U.S. App. Lexis 24264 (2nd Cir.).
     The U.S. Department of Justice has entered into a settlement with the city of Selma, Texas on a claim that the city unlawfully retaliated against a firefighter who filed a complaint against a fire chief for his use of ethnic slurs in the workplace by demoting him from lieutenant to firefighter. The city agreed to pay the employee $28,500 in back pay. Reversal of the demotion was not a remedy, because the employee had subsequently become employed by another fire department. The city also agreed to provide training to all city fire department employees and all city supervisory employees on the legal prohibitions on discrimination and retaliation. U.S. v. City of Selma, #5:12-cv-00287, U.S. Dist. Ct. (W.D. Tex. 2012).
     Corrections officers claimed that they were unlawfully retaliated against for exercising their First Amendment rights. One of the officers had complained that a superintendent and assistant superintendent had discriminated against him and embarrassed him, while the second filed an EEOC complaint charging race and religious discrimination. Subsequently, they were terminated for disciplinary violations, but the penalties were later reduced to suspensions. Both officers' complaints were of an individualized nature. The First Amendment claims were without merit, as the speech involved concerned the making of complaints about their job duties with their employer's internal grievance procedure, and did not relate to matters of public concern. Brooks v. Arthur, #11-1899, 2012 U.S. App. Lexis 13927 (9th Cir.).
     Speaking at two union meetings, a police officer voiced several criticisms of department officials. At approximately the same time, he was disciplined for several violations of department policy. Following that, he did not pass a fitness-for-duty evaluation, and the department sought to fire him. Following arbitration, he was suspended rather than terminated. A federal appeals court rejected his retaliation claim. He failed to show that his speech, even if protected, was a motivating factor in the actions taken against him. The adverse employment actions did not follow closely after his speech, and his own deficient job performance was a significant intervening event. Given that the serious deficiencies in his performance justified discipline, he could not point to merely technical deviations from routine procedure to create an inference of unlawful retaliation. Kidwell v. Eisenhauer, #11-1929, 2012 U.S. App. Lexis 10233  (7th Cir.).
     After a corrections officer complained to members of the state legislature about a prison holding a rap competition for young prisoners, she was reassigned from a position in the prison's school to a general job with less favorable hours, losing her schedule that gave her holidays and weekends off. A federal appeals court ruled that she had sufficiently alleged facts constituting a First Amendment retaliation claim, since her letter to the legislators involved a matter of public concern. She told the legislators about activities that she believed could offend crime victims and their families, and possibly put prisoners, staff members, and members of the public eventually at risk. Mosholder v. Barnhardt, #10-2586, 2012 U.S. App. Lexis 9556; 2012 Fed. App. 0132P (6th Cir.).
     A police department employee was first involuntarily transferred to a new job and then terminated shortly thereafter. She claimed that this was motivated by retaliation against her for exercising her First Amendment rights in giving deposition testimony under subpoena in a federal civil rights lawsuit filed by a former department employee against the city and an assistant police chief. The testimony she gave was adverse to the interests of the assistant police chief. The assistant police chief was not entitled to qualified immunity. The plaintiff spoke on a matter of public concern as a private citizen and there was evidence that retaliation against her for this protected speech motivated her discharge. It was clearly established that a supervisor cannot retaliate against an employee for such testimony. Karl v. City of Mountlake Terrace, #11-35343, 2012 U.S. App. Lexis 9311 (9th Cir.).
     A city was liable to a former female spokesperson for the police department for a total of $417,955.34, including $167,955.34 in attorneys' fees and costs. She was transferred to patrol duty from her spokesperson position, and then was assigned to a more prestigious job with promises of overtime after pursuing a union grievance. Believing that she is not receiving as much overtime as other employees, she makes copies of their paystubs to pursue a complaint, but was allegedly then threatened by a city attorney with criminal prosecution for doing so if she didn't drop her EEOC complaints The jury awarded her damages on her claims that the city retaliated against her because of her complaints of gender discrimination. The award included amounts for pain, suffering, emotional distress and injury to her reputation. Lore v. City of Syracuse, #09–3772, 2012 U.S. App. Lexis 1954, 114 Fair Empl. Prac. Cas. (BNA) 466, remanded by 2012 U.S. App. Lexis 4404 (2nd Cir.).
     Editor's note: In the final opinion rendered above by the appeals court, it notes that the plaintiff elected to drop her cross-appeal of the dismissal of her challenge to her removal from the position as departmental spokesman. She had been offered the option of either doing that and accepting the present judgment, or having the judgment vacated and receiving a new trial encompassing both the retaliation claim, on which the current judgment was based, and her gender discrimination claims.
     A Fire and Safety Officer on the night shift at a state facility for delinquent boys failed to show that he was terminated because of his Caucasian race. He did state possibly meritorious claims for violations of his rights under the Family and Medical Leave Act (FMLA), however, as well as for retaliation against him for exercising his rights under the FMLA. He intended to visit his mother when his shift ended because he had been informed that she was not likely to survive the night. When his replacement called in sick, his supervisor allegedly ordered him to remain at work under threat of being fired, even though a co-worker voluntarily stated that they would take over. The appeals court reasoned that not allowing the officer to go be with his dying mother may have violated his rights under the FMLA even though his sister was available to care for her. Under current regulations covering leave requests, an employee need not be the only family member available to care for a sick individual to qualify for leave. Roman v. Michigan Department of Human Services, #10-2174, 2012 U.S. App. Lexis 3004; 2012 Fed. App. 0046P (6th Cir.).
     A male homosexual city emergency management employee claimed that co-workers "mocked" him. His alleged romantic relationship with a male co-worker ended when the co-worker started an involvement with a co-worker. He then told his supervisor that he wanted to not have to work together with his ex-boyfriend, and that he feared a possible physical attack. He was transferred to a "graveyard" shift, and later also transferred to administrative duties at a cemetery. He sued the city and its mayor, claiming that his transfers and the ridicule of his co-workers amounted to sex discrimination, a hostile work environment and unlawful retaliation in violation of his equal protection rights. He sought damages for violation of his federal civil rights. The supposed mocking was not shown to be significant enough or pervasive enough to create a hostile work environment, and the transfer, even if not what he desired, had no impact on his rank, duties, or pay. Ayala-Sepulveda v. Municipality of San German, #10–2123, 2012 U.S. App. Lexis 947; 114 Fair Empl. Prac. Cas. (BNA) 234 (1st Cir.).
      After a lieutenant lost his election bid to replace the incumbent sheriff, during which he accused the sheriff-coroner of corruption, he was placed on administrative leave and then demoted. In a lawsuit by the ex-lieutenant charging unlawful retaliation in violation of his First Amendment rights, a federal appeals court rejected the sheriff's defense that the plaintiff had been a policymaker and therefore could be dismissed for politically motivated reasons. "Moreover, dismissals on the basis of political considerations must further a 'vital government end' [absent here] because they infringe upon a constitutional right." The court ruled that the sheriff was entitled to qualified immunity from liability, however, in light of the plaintiff's concurrent service as chief of police services for a city under a contract between the city and county. Under these circumstances, the sheriff could have mistakenly believed that political loyalty was required for someone with the lieutenant's job responsibilities. Hunt v. County of Orange,  #10-55163, 2012 U.S. App. Lexis 2815 (9th Cir.).
     After a fire department's diving team was eliminated for budgetary reasons, a boy drowned. An off-duty (and not in uniform) firefighter, who had been a member of the team, was suspended after he spoke at a village council meeting and told them that "A little boy had to die but you guys saved some money" He sued for unlawful retaliation based on his exercise of his First Amendment rights. A federal appeals court rejected the village's defense that the firefighter had "communicated nothing more than 'the quintessential employee beef: management has acted incompetently'." It overturned summary judgment for the village, and ordered further proceedings to determine whether his interest in speaking as a citizen on a matter of public concern "outweighed the defendants' interest in promoting the efficiency of the public services it performs." Westmoreland v. Sutherland, #10-3766. 662 F.3d 714 (6th Cir. 2011).
     A police officer who was terminated twice, and reinstated once, sued the city in federal court, claiming that her terminations were because of her disability of suffering from multiple sclerosis and that she had been subjected to harassment and retaliation on the basis of her disability. These issues, however, had previously been litigated in state court, so she was precluded from relitigating them in a federal lawsuit. The record showed, moreover, that her first termination, occurring years after she was diagnosed with multiple sclerosis, was for associating with a known drug dealer who was the father of her son, and lying to the department about this relationship. She was only reinstated because the department had relied, during the termination, on evidence from illegal wiretaps and because the disciplinary action was untimely. The second termination was based on her being shot in the face at home, with the department concluding she had attempted suicide. Again, there was no evidence of disability discrimination or retaliation. White v. City of Pasadena, #08-57012, 2012 U.S. App. Lexis 927 (9th Cir.)
     An award of more than $2 million to a male police officer who claimed that he was fired for filing a sexual harassment claim against a male co-worker was overturned by a California appeals court. He had told an Internal Affairs investigator that the co-worker had asked him for a date, which he turned down, saying that he was not gay. He claimed that the co-worker then made a number of harassing sexually-oriented comments to him. His allegations were later investigated, determined to have been fabricated, and he was fired. It was determined that he would have made his accusations earlier if they were true, and it was believed that he made them as the basis of a defense to possible discipline over an incident in which he went "end of watch" without checking out with the co-worker. The appeals court found that the plaintiff did not present substantial evidence at trial that his termination was motivated by retaliation for filing the sexual harassment complaint. Additionally, the jury instructions did not adequately spell out that retaliatory intent was necessary as an element of the officer's claim. Joaquin v. City of Los Angeles, #B226685, 202 Cal. App. 4th 1207, 2012 Cal. App. Lexis 35 (Cal. App.).
     A probationary correctional officer failed to show that she was constructively terminated and compelled to resign in retaliation for her refusal to make false statements to a grand jury, in violation of her First Amendment rights. She had observed a couple arguing outside a home, and had allegedly been pressured by a police detective who was unsatisfied with her statements indicating that what she had observed had not been a battery. He allegedly complained to her employer in an attempt to bully her into changing her story, which she refused to do. She failed to show that the alleged firing was retaliatory, and had no protected interest in staying on the job, given her probationary status. Redd v. Nolan, #10-2680, 2011 U.S. App. Lexis 23692 (7th Cir.).
     A city employee had severe attendance difficulties due to health problems. When she was denied a closer parking space at work that she had requested as a reasonable accommodation because of her difficulty walking, she sued the city for disability discrimination under the Americans with Disabilities Act (ADA). A federal appeals court ruled that she was not an otherwise qualified employee for purposes of the ADA, because her attendance was unpredictable, and regular attendance was an essential function of her job. The record also showed that her absenteeism problem was present long before she was diagnosed with fibromyalgia, her claimed disabling condition. The court also rejected the plaintiff employee's retaliation claim, since she could not show that she suffered any adverse employment action in retaliation for requesting the accommodation of the closer parking space. Colon-Fontanez v. Municipality of San Juan, #10-1026, 660 F.3d 17 (1st Cir. 2011).
      A deputy sheriff called into a talk radio program and stated that the current sheriff was not a good fit for the job. In response, the sheriff called in and replied that the deputy was a "slacker," and made statements about the deputy's disciplinary record, saying it involved sexual harassment of another employee, when it actually involved violation of a rule against offensive conduct or language. The deputy sued the sheriff for unlawful retaliation against him for exercising his First Amendment rights in criticizing the sheriff. A federal appeals court rejected this claim, because "(w)e cannot afford one party his right to free speech while discounting the rights of the other party." The appeals court also rejected claims that the sheriff, in making the statements about the deputy's alleged disciplinary record, violated Wisconsin laws concerning privacy and open public records. The open records statute did not apply, as there was no actual release of a public record. As for privacy, the court found that there was no genuine public interest in keeping the record of the concluded disciplinary investigation closed to the public.  Hutchins v. Clarke, #10-2661, 2011 U.S. App. Lexis 21475  (7th Cir.)
    A fire district chief who imposed discipline on a firefighter had statutory immunity against a retaliation lawsuit claim by the employee. A state statute that removed immunity for political subdivisions in such employment related cases was clear and unambiguous in failing to alter the immunity of fellow employees. A unanimous Ohio Supreme Court held that the fire district chief, therefore, could not be sued in his individual capacity. Zumwalde v. Madeira & Indian Hill Joint Fire District, #2010–0218, 2011 Ohio Lexis 813, 128 Ohio St. 3d 492, 2011 Ohio 1603, 946 N.E.2d 748.
     A jury awarded a total of $10 million in damages to three Caucasian officers who allegedly faced retaliatory actions because they opposed discriminatory treatment of minority officers. The trial court reduced the damage awards to $300,000 per plaintiff. On appeal, the city claimed that hearings held by its internal disciplinary review board, which resulted in the termination of one of the plaintiffs, severed any causal connection between a supervisor's alleged retaliatory animus and the final decision to fire the officer. The appeals court noted that, in Staub v. Proctor Hosp, #09-400, 131 S. Ct. 1186 (2011), the U.S. Supreme Court had rejected a "singular influence" test requiring that the plaintiff show that the decisionmaker was no more than a rubber stamp of the nondecisionmaker. The correct test, instead, was that of proximate cause, with the burden on the city to prove that the officer's termination was for reasons unrelated to the supervisor's original allegedly biased action in bringing charges against the officer. In this case, the review board hearing did not absolve the city of liability for the supervisor's retaliatory actions. McKenna v. City of Philadelphia, #09-3567, 2011 U.S. App. Lexis 17199 (3rd Cir.).
      When a Hispanic police officer was denied a requested transfer to Internal Affairs after repeatedly complaining of racial discrimination, there was sufficient evidence to support a jury verdict finding unlawful retaliation. The jury's award of $90,000 under Title VII and $90,000 under a District of Columbia law, however, was an improper double recovery, since both retaliation claims involved the same facts and were seeking the same relief. The jury rejected the officer's racial discrimination claims. Medina v. District of Columbia, #10-7094, 643 F.3d 323 (D.C. Cir. 2011)
     A probationary officer was entitled to First Amendment protection against retaliatory termination for his refusal to comply with orders to make false statements, retract his earlier truthful report, and make a new report concealing a co-worker's alleged use of excessive force. His claim was not barred by Garcetti v. Ceballos, #04-473, 547 U.S. 410 (2006), or Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.) , cert. denied, 131 S. Ct. 444 (2010), since he was not just doing his job in disobeying orders from the chief of police and other top administrators. Jackler v. Byrne, #10-0859, 2011 U.S. App. Lexis 15265 (2nd Cir.).
    An African-American police officer failed to show that she was dismissed in retaliation for opposing discrimination, as protected under Title VII or New Jersey state law. Her complaints about certain alleged violations of departmental regulations - such as another officer's transfer, officers' smoking on site, and the practice of sending one-officer units to two-officer areas did not involve practices made unlawful under the statutes at issue, and did not constitute protected activity. Her reports to her supervisors about being called a "pain" also did not involve criticism based on her race or gender. Davis v. City of Newark, #10-4365, 2011 U.S. App. Lexis 4903 (Unpub. 3rd Cir.).
     While there was evidence of "tension" between an African-American police officer and his co-workers when he returned to work after having been suspended and arrested on charges of sexually abusing his daughter, there was no indication that he suffered racial discrimination, a hostile work environment, or retaliation on account of his race. His claim that he was treated "differently" when he returned did not show intentional discrimination. Livingston v. Borough of Edgewood, #10-4455, 2011 U.S. App. Lexis 11240 (Unpub. 3rd Cir.).
     A police chief who was fired won his job back through union arbitration, and was subsequently subjected to a variety of restrictions concerning how to do his duties by the borough council. He sued the borough under 42 U.S.C. Sec. 1983, arguing that his collective bargaining grievance constituted a "petition" protected by the provision in the First Amendment concerning the right to petition the government for redress of grievances. He further claimed that the restrictions imposed were unlawful retaliation for his exercise of his First Amendment rights, and that his request for overtime pay was also denied in retaliation for his filing of the lawsuit.. A federal appeals court ruled that the "public concern" test applicable to First Amendment cases brought by public employees does not apply to claims brought under the petition clause. The U.S. Supreme Court disagreed, holding that a public employee's exercise of rights under either the free speech or petition clauses must involve a matter of public concern to be protected. The petition clause does not create "a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts." The appeals court decision upholding jury awards of damages for the police chief was therefore vacated. Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564.
     New York's highest court upholds a jury award for two NYPD officers who were subjected to retaliation because they had opposed discrimination against another department member, due to his perceived sexual orientation. There was sufficient evidence in the record to support the verdicts of $579,728 and $491,706, plus attorneys' fees. Albunio v. City of New York, #43, 2011 NY Slip Op 2480, 2011 N.Y. Lexis 498.
     Federal court reduces the damage awarded a woman police who complained about male employees watching pornography, and management responded by listening to her recorded conversation. "It was unreasonable for the jury to award plaintiff nearly half of a million dollars because plaintiff suffered alleged and unsubstantiated 'damages' due to defendants eavesdropping on one telephone conversation when the record established that plaintiff knew that her telephone conversations were being recorded. ... Based upon the record, a new trial will be held on the issue of compensatory damages unless plaintiff accepts an award of compensatory damages of $50,000.00." Dotson v. City of Syracuse, #5:04-CV-1388, 2011 U.S. Dist. Lexis 20374 (N.D.N.Y.).
    Supreme Court extends Title VII's anti-retaliation protection to third parties. It "must be construed to cover a broad range of employer conduct... A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." Thompson v. North American Stainless, #09-291, 2011 U.S. App. Lexis 913.
     Dismissal of a retaliation suit brought by state troopers is affirmed by the Second Circuit. "In sum, Plaintiffs do not allege having suffered any negative consequences ... beyond vague and unspecific descriptions of their own perceptions of their work." Nixon v. Blumenthal, #3:08-cv-1933, 2010 U.S. Dist. Lexis 22408 (D. Conn.); affirmed, #10-1084-cv, 2010 U.S. App. Lexis 25693 (Unpub. 2nd Cir.).
     Federal Merit Board orders the reinstatement of, and back pay for, a former U.S. Park Police chief who was fired after speaking out against manpower shortages, resulting in increased crime and drug activity in Washington area parks. Chambers v. Dept. of the Interior, DC-1221-04-0616-M-2, 2011 MSPB 7.
     California's fair employment law does not provide for a claim of retaliation against a supervisor. Grobeson v. City of Los Angeles, #B207551, 2010 Cal. App. Lexis 2040.
     California's fair employment law does not provide for a claim of retaliation against a supervisor. Grobeson v. City of Los Angeles, #B207551, 2010 Cal. App. Lexis 2040
     Third Circuit rejects a retaliation suit against a city police officer who reported possible misconduct to state officials. She was transferred to the property room, without any loss of pay. "Plaintiff's transfer and the alleged comments and behavior directed towards her do not amount to punitive conduct that would deter a person of ordinary firmness from exercising her free speech rights, and ... the lack of adverse employment action was fatal to [her] claims. Revell v. City of Jersey City, #09-4207, 2010 U.S. App. Lexis 19407 (Unpub. 3rd Cir.).
     Jury awards a former Los Angeles police officer nearly $4 million in his case against the LAPD, finding that the officer was fired in retaliation for testifying against the department in a labor dispute. Romney v. Bratton, #BC 411532 (L.A. Co. Super. 11-02-2010); companion case, Romney v. City of L.A., #2:09-cv-0304 (C.D. Cal.).
     Fourth Circuit resurrects a retaliation suit filed by two former corrections officers. A lieutenant had filed an EEO discrimination complaint, which was backed by the other two officers. The lieutenant was fired for supervision failures and the two officers were fired for falsified inmate counts. The lieutenant was reinstated and settled his claims against the county. Although the termination of the two officers was set aside, they were not barred from pursuing retaliation claims against their superiors in their personal capacities. Brooks v. Arthur, #09-1551, 2010 U.S. App. Lexis 23840 (4th Cir.).
     Eighth Circuit rejects a Title VII retaliation and First Amendment action brought by an Omaha police auditor who fired after she had published a report that was critical of Omaha police practices. She was not speaking as a citizen, and Title VII does not prohibit retaliation for criticizing discriminatory police tactics. Bonn v. City of Omaha, #09-3332, 2010 U.S. App. Lexis 21486 (8th Cir.).
     Third Circuit rejects a retaliation suit brought by a state trooper who claimed that as a result of his refusal to participate in a quota system, he was subjected to adverse employment conditions. Supervisory ride-a-longs, denial of transfer requests and overtime, remedial training, or poor performance evaluations are not constitutional deprivations. Aubrecht v. Pa. State Police, #09-2226, 2010 U.S. App. Lexis 16391 (Unpub. 3rd Cir.).
     After a Dallas police officer complained of sexual harassment and retaliation, she was removed from FTO duties, other coworkers allegedly began "clicking" over her radio calls, refused to partner with her, and she was denied overtime assignments. The Fifth Circuit overturned a summary judgment for the city; "a genuine issue of material fact exists as to whether the City retaliated against [her] for filing a Title VII complaint by removing her from FTO duties." Magiera v. City of Dallas, #09-10826, 2010 U.S. App. Lexis 16802 (Unpub. 5th Cir.).
     Appellate panel rejects retaliation and hostile workplace claims brought by a consistently under-performing police officer. Thompson v. City of Monrovia, #B216252, 186 Cal. App. 4th 860, 2010 Cal. App. Lexis 1142.
     A change in an employee’s parking space location or a relocation to an office without a window are petty annoyances and do not constitute an adverse personnel action for the purpose of proving a hostile workplace claim. Fercello v. Co. of Ramsey, #09-2587, 2010 U.S. App. Lexis 15619, 612 F.3d 1069, 109 FEP Cases (BNA) 1516 (8th Cir.).
     Being listed as a witness in an appeal filed by a coworker did not trigger anti-retaliation provisions. Thampi v. Manatee County, #09-16139, 2010 U.S. App. Lexis 13580 (11th Cir.).
     First Circuit declines to overturn the 15-day suspension given a fire chief, who made public statements about inadequate funding and staffing. Although he spoke on a matter of public concern, he was in uniform and on duty at the time. He had media attention because of his position and was not speaking as a citizen. Foley v. Town of Randolph, #09-1558, 2010 U.S. App. Lexis 5020 (1st Cir.).
     Appellate panel reject claims raised by the estate of a N.J. state trooper who committed suicide, alleging coworker harassment because of his objections to a perceived practice of profiling motorists. "... the record fails to provide a basis for a reasonable inference that any of the actions that [the defendants] took were in retaliation against [the deceased] for complaining about racial profiling." The officer's "experience in the New Jersey State Police was undoubtedly negative, and his story is tragic. Yet we cannot find that he has a right to relief unless he can establish that his various statutory causes of action can be sustained according to their requirements or establish that the District Court abused its discretion in denying him leave to amend his complaint. He has not done so..." Estate of Oliva v. Dept. of Law & Pub. Safety, #09-2082, 2010 U.S. App. Lexis 9142, 109 FEP Cases (BNA) 367 (3rd Cir.).
     Divided federal appeals panel rejects the retaliation claims raised by two police officers after they cooperated with an investigation into alleged police misconduct. Chamberlin v. Town of Stoughton, #08-1289, 601 F.3d 25, 2010 U.S. App. Lexis 6783 (1st Cir.).
     Seventh Circuit rejects a failure to promote claim raised by a federal employee. Although he had testified on behalf of two other employees there was no proof that action was a factor in the employment decision. Poer v. Astrue, #09-3473, 2010 U.S. App. Lexis 10800 (7th Cir.).
     A police sergeant received a negative evaluation after reporting a supervisor for improper conduct, and then filed suit. A federal court has rejected his retaliation claim, because he was not speaking as a citizen on a matter of public concern, but as an employee pursuing a work-related grievance against a coworker with whom he had a contentious relationship. O'Brien v. Robbins, #08-CV-11672, 679 F.Supp.2d 212, 2010 U.S. Dist. Lexis 3512 (D. Mass.).
     Citing Eng v. Cooley, 552 F.3d 1062 and Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009) a Ninth Circuit panel noted that in retaliation lawsuits, the issues are: (1) whether the employee spoke on a matter of public concern; (2) whether the employee spoke as a private citizen or as a public employee; (3) whether the employee’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the agency had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the agency would have taken the adverse employment action absent the protected speech. The District Court properly dismissed the complaint because the officers were not acting as citizens. “Testifying before a grand jury charged with investigating corruption is one part of an officer’s job. If a police officer were subpoenaed to testify, he or she would have two choices. One choice would be to testify before the grand jury. In that event, the officer could lawfully be fired in retaliation for his or her testimony. The other choice would be to refuse to testify. In that event, the officer would face contempt (and possibly other adverse consequences) for failing to comply with a subpoena.” Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696, 29 IER Cases (BNA) 911 (9th Cir.).
     Seventh Circuit rejects a retaliation claim brought by a state police officer who complained of lead contamination in the firing range where he was stationed. The court found that his complaints, sent up the chain of command, were not protected by the First Amendment. His internal grievance was on a matter of private interest and did not raise a matter of public concern. Bivens v. Trent, #08-2256, 2010 U.S. App. Lexis 215 (7th Cir.). “We are not suggesting that Garcetti applies every time a police officer has conversations with a prosecutor. What constitutes official duties will necessarily vary with the circumstances including the rank of the officer, his areas of responsibility and the nature of the conversations ...” Chamberlin v. Town of Stoughton, #08-1289, 2010 U.S. App. Lexis 6783 (1st Cir.).
     Third Circuit rejects a retaliation claim of a civilian state police employee who was not rehired because of alleged sick leave abuse. Her First Amendment claim failed because she her speech was not a matter of public concern. Conard v. Penn. State Police, #09-1837, 2010 U.S. App. Lexis 532 (Unpub. 3rd Cir.).
     Islamic, Jamaican-born FBI agent wins $300,000 in his suit alleging retaliation after he had complained about discrimination. Rattigan v. Holder, #1:04-cv-02009, PACER Doc. 110; prior decisions at 636 F.Supp.2d 89 and 604 F.Supp.2d 33 (D.D.C. 2009).
     Washington state appellate panel sustains the termination of a police officer for violating a Last Chance Agreement. There was no proof that the city had retaliated against the officer for instigating a labor complaint with the PERC. Yakima Police Patrolmen's Assn. and City of Yakima, #37865-5-II, 153 Wn. App. 541, 2009 Wash. App. Lexis 3087, 187 LRRM (BNA) 2880.
     A State Police officer, who discovered that he had elevated levels of lead in his blood due to contamination of the indoor firing range where he was assigned, filed a grievance. His complaint forced management to close the range for nearly nine months, resulting in unfavorable publicity. A subsequent retaliation suit, filed against his superiors, was unsuccessful. Under the 2006 Garcetti decision, his grievance was not protected by the First Amendment because it "was clearly related to and part of his official duties, and … he was not speaking as a private citizen." Bivens v. Trent, # 08-2256, 2010 U.S. App. Lexis 215 (7th Cir.).
     A divided Ninth Circuit panel rejects a Sec. 1983 speech-related retaliation claim filed by two police officers. Citing the 2006 Garcetti decision, "It is clear that in California a police officer's official duties include investigating corruption ..." The panel specifically declined to follow a Third Circuit decision, Reilly v. Atlantic City, #06-2591, 532 F.3d 216 (3d Cir. 2008). Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696, 2009 U.S. App. Lexis 15970, 29 IER Cases (BNA) 91 (9th Cir.).
     Ninth Circuit, in a 2-1 holding, rejects a suit filed by two police detectives who claimed retaliation after they filed a grievance complaining about a lieutenant's attitude and demeanor. Reporting poor interpersonal relationships among coworkers is not a matter of public concern. Desrochers v. San Bernardino, #07-56773, 572 F.3d 703, 2009 U.S. App. Lexis 15400, 29 IER Cases (BNA) 645 (9th Cir.).
    Chicago Police management transferred or detailed a sergeant, who had filed a retaliation lawsuit in 2002, ten times among seven different units. Nevertheless, the Seventh Circuit found that she failed to rebut management's assertion that she was borderline insubordinate, had a confrontational attitude, and suffered from an inability to conduct street operations that jeopardized the safety of an undercover officer. The three-judge panel affirmed the city's motion for summary judgment. She could not rely on her competency in other areas of her job to bolster her claim of repetitious retaliation. O'Neal v. City of Chicago, #09-1716, 2009 U.S. App. Lexis 25177 (7th Cir.).
     Federal labor board concludes that a private prison operator did not violate federal labor relations laws when it discharged a nurse, who had engaged in the protected concerted activity of pursuing discrimination grievances, because she had engaged in antagonistic behavior that provoked two registered nurses to resign. Corrections Corp. of America and Nelson, #26-CA-23180, 354 NLRB No. 105, 2009 NLRB Lexis 359 (NLRB 2009).
     Illinois appellate court affirms a verdict of $3,082,350 in damages, including $2.8 million in punitive damages, plus $1.18 million in attorney fees, for a former private sector employee fired six days after stating that she would be supportive of a co-worker’s racial and sexual harassment action. Blount v. Stroud, # 1-06-2428, 2009 Ill. App. Lexis 980 (1st Dist.).
     Ninth Circuit concludes that the anti-retaliation provisions of Rehabilitation Act and the ADA grant standing to non-disabled employees who are retaliated against for attempting to protect the rights of disabled individuals. Barker v. Riverside County, #07-56313, 2009 U.S. App. Lexis 23343 (9th Cir.).
     Eighth Circuit rejects a retaliation claim brought by a woman corrections officer who complained that a captain had rubbed her arm and grabbed her breast on one occasion and that she had been treated unfairly by coworkers. The allegations were insufficient to support a hostile work environment claim, where the captain was disciplined and she has not shown severe or pervasive harassment. Petty slights and minor annoyances in the workplace, as well as personality conflicts and snubs by co-workers, are not actionable. Sutherland v. Missouri Dept. of Corr., #08-3000, 107 FEP Cases (BNA) 269, 2009 U.S. App. Lexis 20056 (8th Cir.).
       Seventh Circuit rejects a First Amendment claim brought by two jail guards who quit after coworkers threatened to kill them for reporting excessive force on inmates. “The purported code of silence is a ban on filing complaints about guard-on-inmate violence. Such a policy might be foolish; it might expose the County to other lawsuits; but it does not offend the first amendment, because what one guard says about another through the grievance system is part of the job, and the employer can discipline a guard for poor performance of work related tasks.” Fairley v. Andrews, #07-3343, 2009 U.S. App. Lexis 18720 (7th Cir.).
     Seventh Circuit affirms the dismissal of a suit, challenging the disciplinary transfer of a deputy who wrote a humiliating public comment about the sheriff. While the deputy spoke as a citizen, the content of the message was not a matter of public concern. Milwaukee Deputy Sheriff’s Assn. v. Clarke, #08-3298, 2009 U.S. App. Lexis 16082 (7th Cir.).
     $10 million awarded to three former Philadelphia police officers for retaliation after they opposed discrimination against African American officers. A back pay award of $208,781 was added for one of the officers. McKenna v. City of Philadelphia, #98-CV-05835, 2009 U.S. Dist. Lexis 57955 (E.D. Pa.).
     Federal appeals court reinstates a wrongful discharge suit brought by a city employee who reported a ghost payroll. Valentino v. Vil. of So. Chicago Heights, #06-3882, #2006 U.S. App. Lexis 16817 (7th Cir.).
     Joining the 3rd, 5th, and 8th Circuits, a divided en banc panel of the 6th Circuit concludes that Title VII of the Civil Rights Act of 1964 does NOT create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity. The plaintiff was fired because his fiancée had filed a gender bias complaint with the EEOC. "The intended beneficiaries of the anti-retaliation provision of § 2000e-3(a) are obviously the persons retaliated against, not persons who are incidentally hurt by the retaliation." Thompson v. N. Am. Stainless, #07-5040, 567 F.3d 804, 2009 U.S. App. Lexis 12100, 2009 FED App. 0202P, 106 FEP Cases (BNA) 639 (En banc 6th Cir.), reversing 520 F.3d 644.
     In a 2-1 decision, the Sixth Circuit affirms a judgment for a white Cleveland police officer who sued the city and various officials for discriminating and retaliating against him after he shot an adolescent black driver of a stolen vehicle. There was evidence that white officers who shot blacks were treated harshly because of the "high profile" nature of the incident. However, an $800,000 jury award included more than $700,000 for emotional distress - which the panel thought was excessive. Lentz v. City of Cleveland, #07-4385, 2009 U.S. App. Lexis 12500, 106 FEP Cases (BNA) 753 (Unpub. 6th Cir.).
     In a private sector case, an Illinois appellate panel upholds a verdict of $2.8 million for a woman who was wrongfully discharged because she refused to perjure herself in a §1981 lawsuit. The court also awarded back pay, $25,000 for emotional distress and $1.2 million in attorneys’ fees. Blount v. Stroud, #1-06-2428, 2009 Ill. App. Lexis 553 (3rd Dist.). Note: The Supreme Court has held that §1981 encompasses retaliation claims filed by individuals who have tried to help others that have suffered racial discrimination. CBOCS West v. Humphries, 128 S.Ct. 1951 (2008).
     Although the plaintiff had filed a lawsuit alleging race discrimination, there was no evidence that he was retaliated against when others were selected for promotion. There were legitimate reasons for recommending one candidate over others, and to promote the applicant with the highest score. Stephens v. Erickson, #08-1416, 2009 U.S. App. Lexis 14117 (7th Cir.).
    Illinois village settles a federal retaliation lawsuit with a fire captain for $80,000, inclusive of attorney’s fees and costs, along with his promotion to shift commander. He had claimed the Village used pension funds for various political purposes. Iovinelli v. Pritchett, #06-C-6404 (7th Cir.); settlement document; prior decision at 2008 U.S. Dist. Lexis 52617.
    Federal appellate panel declines to overturn a jury verdict for retaliation. The award was for a former sheriff’s employee who was fired after she exercised her Miranda rights during an internal investigation. Also, the defendants raised a defense of immunity too late to be effective. Hendricks v. Office of the Clermont Co. Sheriff, #06-4431,2009 U.S. App. Lexis 9086 (Unpub. 6th Cir.).
     Reversing the trial court, the Ninth Circuit reinstates a failure to promote action filed by a police officer who claimed that he suffered retaliation because he had filed reports about misconduct and had testified in a class action suit alleging discrimination by his department. Robinson v. York, #07-56312, 2009 U.S. App. Lexis 8844 (9th Cir.).
     Court rejects a former correctional officer’s claim that she was subjected to gender discrimination and retaliation for exercising her First Amendment rights. She failed to allege specific facts revealing an alleged understanding between the union and prison officials to deprive her of her First Amendment rights. Management believed that she was passing information to the attorney of an inmate who had died in the institution. Slater v. Susquehanna County, #3:07-CV-2304, 2009 U.S. Dist. Lexis 27188 (M.D. Pa.).
     In a 3-to-1 decision, a N.Y. appellate court sustains an arbitration award upholding the termination of a corrections officer for insubordination. She had repeatedly ignored a sergeant’s directive to stop interrupting another employee. A defense that the charges were levied in retaliation for reporting a coworker for assaulting an inmate was rejected. Kowaleski and N.Y.S. Dept. Corr. Srvs., 505383, 2009 N.Y. App. Div. Lexis 2485 (3rd Dept.).
     Appellate court rejects a claim by a state trooper, who was fired for misconduct, that his termination was in retaliation for public criticism of the agency; several years had elapsed between the two events. Zeglen v. Pappert, #08-2096, 2009 U.S. App. Lexis 5987 (Unpub. 3rd Cir.).
    Supreme Court reinstates a civil rights suit filed by a public employee who claimed that she was fired after reporting sexual harassment by a superior. The ex-employee did not initiate a harassment complaint; the allegations were made during an internal investigation where she responded to questions. The anti-retaliation provision of Title VII extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford v. Met. Govt. of Nashville, #06-1595, 2009 U.S. Lexis 870.
Arbitrator finds that management retaliated against a police union steward by denying a request for light-duty assignment, where other employees had been given such assignments, and the chief ordered officer to fire from kneeling position during a qualification test after grievant had returned from knee injury, even though the grievant "had been instructed at academy not to include this dangerous maneuver as part of qualification course." Dept. of Veterans Affairs and AFGE L-1539, FMCS Case #08/57425, 125 LA (BNA) 1528 (Neigh, 2008).
     Federal appeals panel declines to dismiss a suit brought by a sergeant who claimed that management denied him a promotion because he testified against his agency and reported multiple instances of misconduct. Whether the agency treated misconduct complaint seriously was a matter of public concern. Robinson v. Co. of Los Angeles, #07-56312, 2009 U.S. App. Lexis 458 (Unpub. 9th Cir.).
     Eighth Circuit declines to dismiss a retaliation action brought by five county employees that they were reassigned or transferred to less desirable jobs soon after they complained of race discrimination. Although management claimed that the plaintiffs were reassigned to adjust intra-agency workloads, the fact is that workload variations had never resulted in their reassignments in prior years. Betton v. St. Louis County, #07-1634, 2009 U.S. App. Lexis 957 (Unpub. 8th Cir.).
     Los Angeles jury awards $3.6 million to a male officer who claimed that he was demoted and suffered retaliation after supporting a female officer's harassment charges. Bender v. City of Los Angeles, Super. Ct. #BC361139; L. A. Times, Nov. 13, 2008. The woman has her own lawsuit pending; Fuller v. City of Los Angeles, Super. Ct. #BC346464.
     Although it was five years between the filing of an EEO complaint against the Bureau of Prisons and the denial of a promotion, the government was not entitled to dismissal of the action. The BoP paid $10,000 from the agency's budget to settle the plaintiff's EEO complaint, and his application for the position sought was denied five times. Mack v. Mukasey, #06-cv-00350, 2008 U.S. Dist. Lexis 76111, 104 FEP Cases (BNA) 799 (D. Colo.).
     In a case involving a DHS employee who brought a retaliation lawsuit, "lower performance ratings are not actionable unless they are accompanied by tangible job consequences." Even if the lower rating prevented the plaintiff from receiving a merit bonus, it would not be enough to constitute a materially adverse action. Lapka v. Chertoff, #06-4099, 517 F.3d 974, 2008 U.S. App. Lexis 4391, 102 FEP Cases (BNA) 1253 (7th Cir. 2008).
     Fifth Circuit rejects claims raised by a former prison nurse. Allegations of unfriendly behavior, being reprimanded in front of coworkers, unpleasant work meetings, and unfair treatment do not constitute adverse employment actions. King v. Louisiana Dept. of P.S. & C., #07-31069, 2008 U.S. App. Lexis 20294 (5th Cir.).
     Federal court dismisses a §1983 suit by a former state trooper who claimed that a superior violated his right to equal protection by treating him differently because of personal malice. His claim was not based on membership in a particular group, and "class of one" equal protection claims are invalid in the public employment context. Stas v. Lynch, #3:07-CV-0268, 2008 U.S. Dist. Lexis 70783 (D. Conn.).
     Appellate panel rejects a suit filed by an at-will probation officer who was fired after she wrote a letter to a judge that was critical of her supervisor. The letter was a personal grievance, not a matter of public concern. Miller v. Clinton County, #07-2105, 2008 U.S. App. Lexis 20682 (3rd Cir.).
    Seventh Circuit rejects an action brought by a jailer who claimed that she was fired in retaliation for filing a sexual harassment complaint. She unlawfully tape-recorded her meeting with superiors. "Title VII does not grant employees license to engage in dubious self-help activities to obtain evidence." Argyropoulos v. City of Alton, #07-1903, 2008 U.S. App. Lexis 18330 (7th Cir.).
     Illinois is one of 12 states that require the consent of all parties to a recorded conversation; the others are: California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Appellate panel rejects a retaliation lawsuit brought by a terminated park ranger. He had threatened, intimidated and abused coworkers and made a false complaint. Richey v. City of Independence, #07-2109, 2008 U.S. App. Lexis 18795 (8th Cir.).
     Arbitrator overturns an involuntary transfer that occurred immediately after the grievant indicated that he was going to file a grievance challenging a schedule change. City of Reno and Reno Police Employees, 125 LA (BNA) 158 (Staudohar, 2008).
     California Highway Patrol to pay $995,000 to settle a 14-count lawsuit brought by a former command-level officer who claimed retaliation because he sought promotion to commissioner. Acevedo v. Calif. Highway Patrol, #06AS03307 (Sacramento Super.)
     Seventh Circuit overturns a judgment for $210,000 in compensatory and $150,000 in punitive damages, awarded to a State Police lieutenant that was laterally transferred because of his criticism of a case and the filing of an internal complaint. His statements and reports were made pursuant to his official duties, and not as a citizen. Callahan v. Fermon, #05-4313, 2008 U.S. App. Lexis 10800 (7th Cir.).
     California appeals court affirms a verdict for a former police officer that alleged sex discrimination and retaliation. The jury awarded $530,012 in economic and $372,503 in non-economic damages on her claim for discrimination, plus $59,150 in economic and $287,500 in non-economic damages on her claim for retaliation. Zanone v. City of Whittier, #B189567, 2008 Cal. App. Lexis 597 (2nd Dist.).
     To prevail in a retaliation action a party must show that the decision not to promote her was influenced by a retaliatory animus of her superior. Metzger v. Illinois State Police, #06-3251, 2008 U.S. App. Lexis 5679 (7th Cir.).
     In a retaliation and gender bias lawsuit against a U.S. Marshal, the relevant question was whether the Marshal retaliated against the deputy for filing a complaint, not whether he was motivated by gender bias at the time. DeCaire v. Mukasey, #07-1539, 2008 U.S. App. Lexis 5174 (1st Cir.).
     California appellate panel reinstates a jury verdict for retaliation won by a social worker that was assigned to a prison by a temp. agency. She was a special DoC employee under Gov. Code § 12940(j) and had standing to assert a discrimination claim, even though she was not an official employee of the state for civil service purposes. Bradley v. Cal. Dept. of Corrections, #F049541, 2008 Cal. App. Lexis 78 (5th Dist.).
     Federal court in Florida upholds a damages claim for corrections officer who alleged that she was fired in retaliation for making disabilities discrimination complaints. Rumler v. Fla. Dept. of Corrections, #2:06-cv-522, Pacer Doc. #59 (M.D. Fla.).
     Eighth Circuit sustains a five-day disciplinary suspension of a corrections officer that failed to report the use of force against an inmate, and rejects the officer's claim of unlawful retaliation. Barker v. Mo. Dept. of Corrections, #07-1422, 2008 U.S. App. Lexis 1328 (8th Cir.).
     Ninth Circuit affirms dismissal of a retaliation suit filed by a sheriff's deputy that was fired for sexual harassment. Court also sustains an award of attorney's fees to the county against the ex-deputy, who alleged disability and national origin discrimination. Loera v. Co. of Imperial, #06-55438, 2007 U.S. App. Lexis 27781 (Unpub. 9th Cir.).
     Federal appeals court rejects claims brought by correctional officers that management denied them due process and equal protection of the laws by "blacklisting" employees who had filed administrative appeals of personnel actions, resulting in them not being considered for promotions and other opportunities. The employees lacked a protected property interest in being considered for employment opportunities and they retained their rank and salaries. Teigen v. Renfrow, #06-1283, 2007 U.S. App. Lexis 29854 (10th Cir.).
     Supreme Court declines to review a Seventh Circuit ruling that vacated a $210,000 verdict in favor of a corrections officer. She had alleged retaliatory action after she complained that she was stopped from searching a vehicle that two senior prison officials used to leave the facility. Her complaint about prison security was not protected under the First Amendment because of the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006). Spiegla v. Hull, #05-3722, 481 F.3d 961, 2007 U.S. App. Lexis 7396, 25 IER Cases (BNA) 1508 (7th Cir.); cert. den. #07-273, 2007 U.S. Lexis 11650.
     State investigator, who won a $1.5 million verdict for being denied a promotion in retaliation for reporting misconduct, may sue again for denial of a promotion in retaliation for having filed the first lawsuit. Dillon v. Morano, #06-2501-CV, 497 F.3d 247, 2007 U.S. App. Lexis 19453 (2nd Cir.).
     Eighth Circuit rejects retaliation fear claims raised by two women police dispatchers because they were not credible and did not excuse a yearlong delay in reporting a superior's sexual harassment. The District Court properly dismissed their hostile work environment sexual harassment and retaliation claims. Weger v. City of Ladue, #06-1970, 2007 U.S. App. Lexis 21909 (8th Cir.).
     Federal court refuses to dismiss wrongful discharges action filed by three former police employees that had cooperated in a public corruption investigation. Cheek v. City of Edwardsville, #06-2210, 2007 U.S. Dist. Lexis 66150 (D. Kan.)
     In a retaliation lawsuit, a New York court declines to set aside jury verdicts of $491,706, $479,473 and $507,198 awarded to a former sergeant, lieutenant and captain. The sergeant had filed a discrimination complaint; the two superior officers opposed discriminatory acts against the him. They complained of retaliation and constructive discharge. Sorrenti v. City of New York, #126981/02, 2007 N.Y. Misc. Lexis 6363 (N.Y. Co. Sup.).
     LAPD officers obtain a consent decree against a woman that chronically abused the agency's IA complaints process. Jones v. Andrade, #BC355541 (Los Ang. Super. 2007).
     It was a question of fact as to whether a state trooper's reporting of potentially unlawful conduct by a superior was protected under the First Amendment. The Supreme Court's decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006) does not compel summary judgment for the employer on the plaintiff's retaliation claim. Paola v. Spada, #03cv1628, 2007 U.S. Dist. Lexis 58154 (D.Conn.), on remand from 204 Fed. Appx. 946, 2006 U.S. App. Lexis 28219 (2d Cir.).
     In a civil action brought by former state troopers and firing range instructors, summary judgment for defendants is affirmed as to their First Amendment retaliation claims. The plaintiffs were speaking as employees, not as citizens, when they alleged hazardous conditions, corruption, misconduct, and mismanagement when they spoke with a State Auditor. Foraker v. Chaffinch, #06-4086, 2007 U.S. App. Lexis 20739 (3rd Cir.).
     Sixth Circuit rejects a First Amendment retaliation action brought by a terminated park ranger. Statements she made to a consultant that management hired to interview employees were not made as a citizen, but as an employee. Weisbarth v. Geauga Park Dist., #06-4189, 2007 U.S. App. Lexis 20261, 2007 FED App. 0337P (6th Cir.).
     Federal court dismisses a suit filed by a demoted firefighter because the illegality of the chief's retaliatory action would not necessarily have been clear to a reasonable government official at the time. The firefighter spoke as a citizen on a matter of public concern when he revealed that the chief had a Confederate flag tattoo in violation of the department's policy. Hartwell v. City of Montgomery, #2:06cv518, 487 F.Supp.2d 1313, 2007 U.S. Dist. Lexis 34271 (M.D. Ala.).
     Seventh Circuit affirms the dismissal of a wrongful discharge suit, where the worker claimed that the employer terminated him for filing a workers' compensation claim. In fact, the worker was fired because he failed to provide management with periodic medical status reports as required under the collective bargaining agreement. McCoy v. Maytag Corp., #06-2417, 2007 U.S. App. Lexis 18058 (7th Cir.).
     LAFD captain awarded $3.75 million in retaliation lawsuit, including $2.96 million for pain and suffering, after he refused to lower physical fitness standards for women recruits. He alleged that he suffered heart problems after management tried to punish him and he was denied assignments. Lima v. City of Los Angeles, #BC353261; verdict rptd. Nat. L. J. 15 (6-18-2007) and L.A. Times (6-9-2007).
     Federal court refuses to dismiss a retaliation lawsuit brought by an Islamic, Jamaican born, African-American FBI agent who, after his conversion to Islam, was subjected to a file review, an on-site review, and a loyalty investigation. A "mere investigation" may constitute a material, adverse personnel action. Rattigan v. Gonzales, #04-2009, 2007 U.S. Dist. Lexis 39227, 100 FEP Cases (BNA) 1680 (D.D.C.).
     Although a temporary transfer and compulsory fitness-for-duty examinations arguably constituted adverse employment actions, a Bureau of Prisons employee failed to prove a connection to an earlier filing of an EEOC complaint. Management established legitimate, non-retaliatory reasons for her transfer and the FFD exam, based on her outbursts and statements regarding a brain tumor. The warden legitimately was concerned that she could no longer perform her job duties. Murry v. Attorney General, #06-15764, 2007 U.S. App. Lexis 11473 (Unpub. 11th Cir. 2007).
     Male NYPD sergeant wins $300,000 after he had his firearms removed from his home and was transferred to manage a filthy storage room in retaliation for complaining about sexual harassment by a woman lieutenant. Marchisotto v. City of New York, #05Civ.2699, 2007 U.S. Dist. Lexis 27046, 100 FEP Cases (BNA) 1114 (S.D.N.Y. 2007).
     Seventh Circuit rejects a retaliation claim in a First Amendment action, where a gangs task force police officer alleged that he was denied promotions because he complained to superiors that some officers might be tipping off suspects. His speech was not made outside of his capacity as an investigator and a task force member, so he was not speaking as a citizen for First Amendment purposes. Sigsworth v. City of Aurora, # 05-4143, 2007 U.S. App. Lexis 12204 (7th Cir.).
     Ninth Circuit concludes that the appellant failed to show that management's legitimate, nondiscriminatory reasons for his termination were pretextual. The legitimate, nondiscriminatory reasons for the appellant's termination included insubordination, use of profanity, falsification of time sheets, improperly charging tires to the state, an attempted cover up, and breaching confidentiality with a witness in the employer's investigation of his actions. Willie v. Nevada Dept. Public Safety, #05-15903, 2007 U.S. App. Lexis 12064 (9th Cir.).
     "The EAP is a counseling program that helps employees manage job-related stress, solve personal problems, and deal with addictive or suicidal behaviors. Referral to the Philadelphia Police Department's EAP is a non-punitive action. EAP use by the officers is voluntary and does not appear on their employment record. Because plaintiff does not even allege otherwise, she cannot make out a prima facie case on this claim." Webb v. City of Philadelphia, #05-5238, 2007 U.S. Dist. Lexis 42727 (E.D. Pa.).
     Federal court rejects a retaliation lawsuit filed by a police civilian worker that claimed superiors mistreated her after she reported seeing a lieutenant and a subordinate officer engaging in sex while in uniform. "Her statements depict a single event in the workplace, are devoid of any social commentary, and do not suggest an endemic problem that might impact the public or warrant its concern." Moreover, "no rational trier of fact could conclude [that she] was retaliated against for reporting an act of sexual harassment." De Los Santos v. City of N.Y., #02-Civ-8453, 2007 U.S. Dist. Lexis 2512 (S.D.N.Y.).
     Federal appeals panel finds that there were valid reasons to terminate an officer's employment. Even if management was retaliating against him because of his participation in a sexual harassment investigation, he failed to show that the city's reasons for discharging him were pretextual. The city would have discharged the employee even if the investigation was not a factor. Crawford v. City of Fairburn, #06-13073, 2007 U.S. App. Lexis 7245 (11th Cir.).
     Federal jury awards $505,000 [reduced to $300,000] for emotional distress and loss of reputation and $60,000 for lost wages to a former FBI agent who allegedly was retaliated against for filing a sex discrimination complaint. Turner v. Gonzalez, #01-CV-1407, 45 (2194) G.E.R.R. (BNA) 220 (D. Minn. 2007); prior ruling at 421 F.3d 688 (8th Cir. 2005).
     Congress did not include an anti-retaliation provision in the Age Discrimination in Employment Act, 29 U.S. Code §633a(15), or intend to protect workers from retaliation for bringing an ADEA complaint. "We presume that a legislature says in a statute what it means and means in a statute what it says." Gomez-Perez v. Potter, #06-1614, 2007 U.S. App. Lexis 2943 (1st Cir.).
     Although the appellant deputy sheriff engaged in protected activity by filing discrimination complaints and internal grievances for more than 20 years, management passed her over for promotion because she had scored the lowest on the sergeant's exam, and there was no proof the exam was discriminatory. Gary v. Hales, #06-12545, 2007 U.S. App. Lexis 7 (Unpub. 11th Cir.). [N/R]
     Although the appellant alleged that management terminated him in retaliation for testifying against fellow corrections officers about the mistreatment of inmates, the county offered proof that he was fired for abandoning his job. Espinosa v. Co. of Union, #05-4278, 2007 U.S. App. Lexis 391 (3rd Cir. 2007). [N/R]
     Standing: In a retaliation claim, the fact that a friend of the employee filed a discrimination complaint did not mean that the employee had engaged in a protected activity, unless the employee actually participated in that charge. Ramirez v. Gonzales, #06-40751, 2007 U.S. App. Lexis 2041 (5th Cir. 2007). [N/R]
     Relocating an employee's desk in the police station after she complained of sexual harassment was not an adverse employment action that would support a retaliation claim. McCullough v. Kirkum, #06-30481, 2006 U.S. App. Lexis 31335 (5th Cir. 2006). [N/R]
     The onset of the appellant's disability preceded the date of his termination only because management investigated the incident. He was fired because he violated safety instructions, not because he was injured. Gross v. Indus. Cmsn of Ohio, #2005-1689, 2006 Ohio Lexis 3551 (Ohio 2006). [N/R]
     Appellate court noted that although the plaintiff was fired from her job as a jailer on the day after she gave a deposition in her Title VII lawsuit, there were two nondiscriminatory reasons for firing her: a prisoner suicide occurred on her watch, and her apparent dishonesty in the death investigation. McGowan v. City of Eufala, # 04-7083, 2006 U.S. App. Lexis 31277 (10th Cir. 2006). [N/R]
     Federal court allows a police officer to take to trial a claim that he was decommissioned after filing and settling an EEO complaint against his city. Scales v. Metrop. Govt. of Nashville & Davidson Co., #3:05-0553, 2006 U.S. Dist. Lexis 51282, 98 FEP Cases (BNA) 1114 (M.D. Tenn. 2006). {N/R}
     Former Homeland Security officer wins $220,000 in back pay, $780,000 in front pay, and $1.5 million for mental anguish after he was transferred and later terminated in retaliation for filing a disability and race discrimination lawsuit. Hudson v. Chertoff, #05-cv-60985, 44 (2182) G.E.R.R. (BNA) 1220 (S.D. Fla. 2006); prior ruling at 2006 U.S. Dist 69044. {N/R}
     Woman Illinois State Police sergeant, who alleged that she was sexually harassed by her supervisor and then received negative performance ratings and inferior work assignments after she complained, wins a jury verdict of $146,000. Storey v. Ill. State Police, #05CV-4011, verdict (S.D. Ill. 2006); prior rulings at 2006 U.S. Dist. Lexis 8127 and 57970. {N/R}
     Federal appeals court reinstates an ex-FBI employee's claims for discrimination and retaliation in violation of Title VII. Preventing an employee from receiving a promotion constitutes an adverse employment action. Velikonja v. Gonzales, #05-5030, 2006 U.S. App. Lexis 25675 (D.C. Cir. 2006). {N/R}
     Federal court dismisses a suit by a nurse who lost her job after prison authorities denied her entry privileges for breaking a rule. Cunningham v. New Jersey, #03-4970, 2006 U.S. Dist. Lexis 68789 (D.N.J. 2006). [2006 FP Dec]
     Firefighter who informed the chief that he and coworkers were having sex in the firehouse loses a suit claiming that fellow employees targeted him for harassment. He signed a release of all claims against the city to keep his job. Littrell v. City of Kansas City, #06-1223, 2006 U.S. App. Lexis 21666, 98 LRRM (BNA) 1507 (8th Cir. 2006). [2006 FP Nov]
     Federal jury awards a state police investigator $146,000 in damages after finding that superiors denied a promotion and retaliated against her after she complained of being sexually harassed by a superior officer. Storey v. Ill. State Police, #05-cv-4011 (S.D. Ill. 2006); interim decisions at 2006 U.S. Dist. Lexis 57970 and 2006 U.S. Dist. Lexis 8127. {N/R}
     Former police commander wins $3.7 million in his whistleblower retaliation lawsuit brought against the chief and mayor -- including $2 million in punitive damages. Hare v. Zitek, #1:02-cv-03973, Pacer Docs 186 & 187 (N.D. Ill. 2006). [2006 FP Nov].
     Eleventh Circuit finds that a captain failed to prove his demotion to lieutenant was in retaliation for FMLA activity. A three-month interval between his FMLA complaints and the demotion is not evidence of causal link between the events, and there was evidence that the sheriff considered demoting him before he made the complaints. Drago v. Jenne, #05-11276, 2006 U.S. App. Lexis 16094, 11 WH Cases2d (BNA) 980, 98 FEP Cases (BNA) 555 (11th Cir.). {N/R}
     Appellate panel reinstates an action brought by a demoted highway patrol officer claiming that his First Amendment rights were violated by retaliating against him for opposing proposed changes in patrol policy. Hughes v. Stottlemyre, #05-2774, 2006 U.S. App. Lexis 18063 (8th Cir. 2006). {N/R}
     Seventh Circuit affirms the dismissal of a "blacklisting" retaliation lawsuit. The plaintiff failed to prove that city officials provided false information about his work as a city engineer. Tomanovich v. City of Indianapolis, #05-1653, 2006 U.S. App. Lexis 20247 (7th Cir. 2006), affirming 2002 U.S. Dist. Lexis 14885. {N/R}
     Supreme Court eases test of what constitutes legal retaliation, but emphasizes that each case must be viewed independently. Burlington No. & Santa Fe Rwy. v. White, #05-259, 2006 U.S. Lexis 4895 (2006). [2006 FP Sep]
     Los Angeles agrees to pay an officer $225,000 to settle his federal lawsuit. After he expressed concerns that racial profiling data entered by other officers was being fabricated, his superiors allegedly pursued unfounded complaints against him, raided his home for weapons, and reassigned him to a distant duty station. Dickenson v. City of Los Angeles, #2:04-cv-07214 (C.D. Cal. 2006); L.A. City Council Special Mtg. 6/7/2006 (Closed Session), Council Item #06-1163. {N/R}
     City was entitled to dismissal of a civil rights suit alleging retaliation because of the plaintiff's allegations of corruption; the employee did not present evidence substantiating a link between his reports of corruption and subsequent adverse employment actions. Healy v. City of Chicago, #04-3155, 2006 U.S. App. Lexis 14755 (7th Cir. 2006). {N/R}
     Federal court upholds a jury award of backpay and damages for emotional injury in a suit filed by a part-time white officer who claimed that he was fired for supporting the black police chief. Swanson v. City of Bruce, #3:00CV194, 2006 U.S. Dist. Lexis 16107 (N.D. Miss. 2006). [2006 FP Aug]
     Jury finds that management retaliated against three white women police officers who complained that an black commanding officer was discriminating against white subordinates. Verdicts total $325,000. O'Sullivan v. Chicago, #01CV9856 (N.D. Ill. 2006) (Doc. #1, 87, 88, 117 & 120); prior decis. at 396 F.3d 843 (7th Cir. 2005) and 2003 U.S. Dist. Lexis 953 (N.D. Ill. 2003). [2006 FP Aug]
     Former police chief is not entitled to dismissal of a lawsuit filed by an officer who was transferred to a less desirable position in retaliation for statements that he made against the chief. Miller v. Jones, #05-1932, 444 F.3d 929, 2006 U.S. App. Lexis 9566 (7th Cir. 2006). {N/R}
     A police chief was not entitled to dismissal of a suit claiming a retaliatory transfer where the officer's speech was on a matter of public concern, and where the unconstitutionality of the chief's actions was clearly established at the time they occurred. Miller v. Jones, #05-1932, 2006 U.S. App. Lexis 9566 (7th Cir. 2006). {N/R}
     Unlike a hostile workplace environment claim, minor acts cannot be combined with older events to create a continuing pattern of retaliation, allegedly inflicted because of a lieutenant's cooperation in a federal corruption probe. O'Connor v. City of Newark, #05-2237, 440 F.3d 125, 2006 U.S. App. Lexis 6050 (3rd Cir. 2006).
     Federal appeals court upholds a $75,000 verdict awarded to a city employee who suffered retaliatory action. Gronowski v. Spencer, #04-2605, 424 F.3d 285, 2005 U.S. App. Lexis 20114 (2nd Cir. 2005). {N/R}
     Changing an employee's work schedule might be an "adverse employment action" for purposes of a retaliation suit, even where the salary and duties are unchanged. Washington v. Illinois Dept. of Revenue, #03-3818, 420 F.3d 658, 2005 U.S. App. Lexis 17977, 96 FEP Cases (BNA) 545 (7th Cir. 2005). {N/R}
     Eighth Circuit rejects a retaliation suit filed by a state's attorney who lost reelection. He claimed that the county commissioners breached a nonretaliation provision in the employee's settlement agreement with the county. "The voters, not Richland County, decided that [the plaintiff] would no longer serve as State's Attorney," the panel concluded. Myers v. Richland County, #04-3653, 96 FEP Cases (BNA) 1537, 2005 U.S. App. Lexis 24582 (8th Cir. 2005). {N/R}
     Because a lateral transfer without diminution in pay or benefits is not an adverse employment action, a woman correctional officer did not have a valid retaliation claim based on her transfer to a very undesirable assignment weeks after she filed a sexual harassment, according to the U.S. Court of Appeals for the D.C. Circuit. Jones v. Dist. of Col. Dept. of Corr., 04-7181, #96 FEP Cases (BNA) 1441, 2005 U.S. App. Lexis 24523 (D.C. Cir. 2005), affirming 346 F.Supp.2d 25 (D.D.C. 2004). {N/R}
     A federal court in Manhattan has ruled that a denial of Emeritus status to a professor is not an "adverse employment action" even if it was in retaliation for exercising his First Amendment rights. The honorary title conferred no benefits; all retired professors enjoyed office and telephone privileges. Zelnick v. Fashion Institute of Technology, #03 CV 8210 (Unreported, S.D.N.Y. 2005). {N/R}
     A county did not act unlawfully in terminating a mental health therapist who was seriously and permanently injured from an assault by a violent patient. "An employer is not guilty of retaliatory discrimination when the employee cannot perform the customary work without risk of either reinjury or further injury." County of San Luis Obispo v. Workers' Comp. Appeals Bd., #B182145, 2005 Cal. App. Lexis 1637 (2d App. Dist. 2005). {N/R}
     The anti-retaliation clause contained in Title VII protects an employee who is named as a voluntary witness, even if he or she never called on to testify. Jute v. Hamilton Sundstran, #04-3927, 420 F.3d 166, 96 FEP Cases (BNA) 481, 2005 U.S. App. Lexis 18038 (2nd Cir. 2005). {N/R}
     California Supreme Court upholds a retaliation claim where an employee refused to follow a supervisor's order that she reasonably believed to be discriminatory. The employee is protected even if he or she "does not explicitly state to her supervisor or employer that she believes the order to be discriminatory." Yanowitz v. L'Oreal, #S115154, 36 Cal.4th 1028, 2005 Cal. Lexis 8594 (2005). {N/R}
     Alleged retaliatory transfer of an Illinois State police lieutenant results in a verdict for $210,000 in compensatory damages and $472,300 in punitive damages against two superiors. Callahan v. Brueggemann, #03-CV-2167 ( C.D. Ill. 2005). [2005 FP Oct]
     Federal court overturns a $5 million verdict awarded to two women police officers, who were separated after unfavorable fitness exams ordered after they filed an unsuccessful suit in state court alleging sex discrimination and sexual harassment. "Twelve different psychologists can give twelve different opinions about whether a police officer is fit for duty." Denhof v. City of Grand Rapids, #1:02-cv-275 (W.D. Mich. 2005). [2005 FP Aug]
     Federal appeals court upholds the right of a corrections dept. to refuse to rehire an employee that was previously fired for unacceptable work performance. The refusal was for a valid reason, and not because she had challenged her prior termination. Perry v. Alabama Dept. of Corr., #04-15054, 2005 U.S. App. Lexis 7926 (Unpub. 11th Cir. 2005). {N/R}
     Eighth Circuit affirms a refusal to dismiss a lawsuit alleging retaliatory action. Although the sheriff said that he had demoted a sergeant for improper handling of a traffic citation, the plaintiff claimed that it was in retaliation for filing a lawsuit challenging the sheriff's promotional procedures. Powell v. Johnson, #04-1684, 405 F.3d 652, 22 IER Cases (BNA) 1443, 2005 U.S. App. Lexis 7505 (8th Cir. 2005). {N/R}
     Federal appeals court affirms a $500,000 verdict for a former corrections officer, who was relentlessly harassed after he informed on a fellow officer. Baron v. Suffolk County Sheriff's Dept., #03-2718, 2005 U.S. App. Lexis 4964, 403 F.3d 225 (1st Cir. 2005). [2005 FP Jun]
     An unrealized threat of termination to an employee who makes a sex discrimination claim is not an act of unlawful retaliation, unless the employee suffers an economic loss or other adverse employment action. Dick v. P.D.C., Inc, #03-4163, 397 F.3d 1256, 95 FEP Cases (BNA) 293, 2005 U.S. App. Lexis 2256 (10th Cir. 2005), citing Jeffries v. State of Kansas, 147 F.3d 1220 (10th Cir. 1998). {N/R}
     Illinois appellate court reiterates that the tort of retaliatory discharge is recognized only in only two situations: filing a worker's compensation claim and whistle-blowing activities. Sutherland v. Norfolk So. Ry. Co., #1-04-1631, 2005 Ill. App. Lexis 284 (2005). {N/R}
    Federal court dismisses 8 of 9 counts of a lawsuit brought by an FBI agent and his wife, claiming retaliation because his investigations of the Potts Party and Ruby Ridge standoff led to disciplinary action against high-ranking Bureau officials. FBI agents have limited rights to bring civil actions challenging adverse personnel actions. Roberts v. Dept. of Justice, #1:03cv1920, 2005 U.S. Dist. Lexis 5410 (D.D.C. 2005). [2005 FP Jun]
     An employer cannot escape liability for retaliation by claiming a worker was technically employed by a related or affiliated entity. The plaintiff claimed he was fired for filing a religious discrimination lawsuit. Flowers v. Columbia College, #04-2899, 397 F.3d 532, 95 FEP Cases (BNA) 237, 2005 U.S. App. Lexis 1977 (7th Cir. 2005). {N/R}
     Court declines to dismiss a retaliation lawsuit filed by a state trooper who was involuntarily transferred after filing a grievance and subjected to a pay cut shortly after he filed a discrimination complaint with the EEOC. Brand v. North Car. Dept. of C.C. & Public Safety, #1:03-CV-00966, 352 F.Supp.2d 606, 2004 U.S. Dist. Lexis 26190 (M.D.N.C. 2004). {N/R}
     Second Circuit allows an officer to sue for coworker harassment, in retaliation for her causing another employee to get fired. Management was aware of the behavior and allegedly did nothing to stop it. Noviello v. City of Boston, #04-1719, 2005 U.S. App. Lexis 2664 (1st Cir. 2005). [2005 FP Apr.]
     The reasons for terminating a police canine officer were legitimate, and because more than seven months had passed since he raised an overtime claim under the FLSA, there was no proof the city retaliated against him for filing an overtime lawsuit. Grey v. City of Oak Grove, Mo., #03-3532, 396 F.3d 1031, 10 WH Cases 2d (BNA) 495, 2005 U.S. App. Lexis 1453 (8th Cir. 2005). {N/R}
     Although the plaintiff-corrections officer was reassigned to a highly undesirable position after she filed a sexual harassment complaint, her suit for retaliation must fail because it was not a tangible adverse personnel action. Jones v. Dist. of Columbia, #00-2140, 346 F.Supp.2d 25, 2004 U.S. Dist. Lexis 23304 (D.D.C. 2004). {N/R}
     The Illinois Personnel Code does not imply a private right of action for state employees who are retaliated against by other state employees. Metzger v. DaRosa, #95913, 209 Ill.2d 30, 805 N.E.2d 1165, 2004 Ill. Lexis 354.
     Federal appeals court holds that in addition to backpay, damages for emotional distress and attorney's fees, a police officer who was not reinstated after a settlement agreement also was entitled to punitive damages against the city attorney that intentionally obstructed his reinstatement. Powell v. Alexander, #02-2218, 2004 U.S. App. Lexis 24476 (1st Cir. 2004).[2005 FP Jan]
     Federal judge overturns a $50,000 verdict for a retaliatory transfer, after a NYPD detective complained of national origin discrimination. Lateral change had no "adverse" action. Chu v. City of N.Y., 99 Civ. 11523, 2000 U.S. Dist. Lexis 18513, 84 FEP Cases (BNA) 1118 (Unpub. S.D.N.Y.). [2001 FP 28]
     Ex NYPD officer awarded $1.25 million for retaliation and constructive discharge, after she reported a lieutenant had sexually harassed her. Gonzalez v. Bratton, 2000 U.S. Dist. Lexis 12002 (Unrptd. S.D.N.Y.); verdict rptd. N.Y. Times p. B16 (10/14/2000). [2001 FP 13]
     Probationary police officer, whose termination was sought by the police dept. on the day after she filed a discrimination complaint with its equal employment opportunity office, did not show the timing was anything but a coincidence; she received negative performance evaluations for months. Vails v. Police Dept. of City of N.Y., 54 F.Supp.2d 367, 1999 U.S. Dist. Lexis 10635, 84 FEP Cases (BNA) 515 (S.D.N.Y.). {N/R}
     Jury awards federal agent $1 million after suffering retaliation from a superior because he had filed two discrimination complaints; award capped at $300,000. Salinas v. Rubin, #L-99-25, 38 (1871) G.E.R.R. (BNA) 854 (S.D. Tex. 6/26/2000). [2000 FP 157]
     Compensatory and punitive damages may not be recovered on claim of employment retaliation under the ADA. Although the Civil Rights Act of 1991 authorizes both, it is limited to enumerated subjects and it does not include the ADA retaliation provision. Brown v. City of Lee's Summit, 1999 U.S. Dist. Lexis 17671, , 9 AD Cases (BNA)1337 (W.D.Mo. 1999). {N/R}
     Federal appeals court allows a suit for FLSA retaliation, even if the employee or the employer is not covered under the law. Sapperstein v. Hager, # 98-3390, 188 F.3d 852, 5 WH Cases2d 929, 1999 U.S. App. Lexis 19042 (7th Cir.). [1999 FP 170]
     The EEOC, in May 1998, modified its Compliance Manual and prohibits retaliation for “filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the applicable statute.” FEP Manual (BNA) 405:7581. The amendment also holds individual supervisors liable for any adverse treatment {405:7590 n.96}, relying on Munday v. W.M.N.A., 126 F.3d 239 (4th Cir. 1997).
     Male employee, fired for snitching on his superior for what he thought was sexual harassment of a female worker, recovers just under a million dollars in compensatory and punitive damages. Reginelli v. Motion Ind., 987 F. Supp. 1137, 1997 U.S. Dist. Lexis 20721, 1997 WL 798177 (E.D. Ark. 1997). [1998 FP 92]
     California appeals court upholds a federal civil rights claim for withholding and tampering with evidence in a disciplinary hearing. Benach v. Co. of Los Angeles, 1997 Cal.App. Lexis 13. [1998 FP 42-3]
     Texas appellate court affirms $580,000 in actual and $1,250,000 in punitive damages against a sheriff's dept. for retaliatory discipline against a jail deputy who reported health violations. Lubbock Co. v. Strube, 1997 Tex.App. Lexis 5123. [1997 FP 171-2]
     Appellate justices also affirm $500,000 actual and $500,000 punitive damages for a police officer who suffered retaliatory discipline for arresting a sergeant for DWI. San Antonio v. Heim, 932 S.W.2d 287, 1996 Tex.App. Lexis 4437. [1997 FP 171-2]
     Justice Dept. brings its first ADA retaliation suit against a NM Police Dept. for terminating an officer who had won a disability discrimination settlement against the town. U.S. v. Town of Tatum (D.N.M., filed 9/11/97) [1997 FP 172]
     Appellate court affirms termination of corrections officer who knowingly wore her firearm into a secure area. She failed to prove that her pending claim for sexual harassment was the real reason for disciplinary action. Ramos v. Coombe, 654 N.Y.S.2d 454 (A.D. 1997). [1997 FP 164]
     Misconduct, not whistleblowing, was the reason for the discharge of an INS inspector. The decision to investigate the officer was not a pretext for retaliation. Geyer v. D.O.J., 1997 WL 163507 and 334944 (Fed.Cir.); 1996 WL 543268 (Fed.Cir.). {N/R}
     Kansas joins a growing number of states to recognize the tort of "retaliatory demotion". Brigham v. Dillon, 1997 Kan. Lexis 55, 12 IER Cases (BNA) 1339. See also Scott v. PG&E, 11 Cal.4th 454, 904 P.2d 834 (1995); Zimmerman v. Buchheit, 164 Ill.2d 29, 645 N.E.2d 877 (1995). [1997 FP 91]
     Supreme Court holds that former workers are “employees” within the meaning of Title VII, for the purpose of enforcing its anti-retaliation provisions. Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 1997 U.S. Lexis 690, 72 FEP Cases (BNA) 1856. [1997 FP 74]
     Federal appeals court allows Title VII suit for post-termination retaliatory actions. Veprinsky v. Fluor Daniel, 87 F.3d 881, 1996 U.S.App. Lexis 15323, 71 FEP Cases 170 (7th Cir.). [1997 FP 13]
     Former deputy proved her termination from the sheriff's dept. was substantially motivated by her filing of a complaint with the EEOC. Spencer v. Byrd, 917 F.Supp. 368 (M.D.N.C. 1995). {N/R}
     Sergeant could be disciplined for refusing to follow his department's standby policy, in spite of his F.L.S.A. claim and service as a union board member. Knickerbocker v. City of Stockton, 81 F.3d 907 (9th Cir. 1996). [1996 FP 136-7]
     Justice Dept. pays $180,000 to white agent who complained of a retaliatory suspension after reporting the harassment of his black partner by other DEA agents. Probst v. Reno, 1995 U.S.Dist. Lexis 19209, 917 F.Supp. 554 (N.D.Ill.). [1996 FP 92]
     Retaliation by employers against individuals for complaining of or opposing actions that they believe are discriminatory is illegal and employers can be held liable for tolerating discriminatory behavior, N.Y. Executive Law Sec. 296. Herlihy v. M.M.A., 214 A.D.2d 250, 633 N.Y.S.2d 106 (1995). {N/R}
     Federal courts reject a woman police sergeant's Title VII claims, following her termination for filing a false complaint of sexual harassment and offering forged evidence; other allegations survive appeal. Wilson v. Univ. of Texas, 773 F.Supp. 958; modif. 60 FEP Cases (BNA) 88 (5th Cir. 1992). [1993 FP 12-13]
     Federal court allows correctional officers to sue superiors and union officials for harassment, allegedly invoked to retaliate against them for complaining of prisoner brutality, imposed by other officers. Corrente v. St. of Rhode Island, 759 F.Supp. 73 (D.R.I. 1991). [1992 FP 70]
     Woman police officer who played a prominent role in sex discrimination litigation was passed over for promotion. Court orders her promotion; back pay differential awarded. U.S. v. City of Montgomery, 755 F.Supp. 1522 (M.D.Ala. 1990). [1992 FP 44-5]
     City employee who was allegedly fired for refusing to engage in misrepresentations used to defend a lawsuit was awarded $98,265. Appellate court reverses and rules ex-employee could not sue for retaliatory discharge. Lambert v. City of Lake Forest, 542 N.E.2d 1216 (Ill. App. 1989).

Back to list of subjects             Back to Legal Publications Menu