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
|
After his involvement in a high-speed chase, a city patrol officer complained to the police chief about his vehicle’s tires and seatbelts. He repeated his complaints to the assistant police chief, to the city administrator, and then to a city council member. The month after he attempted to schedule a meeting with the mayor, the city council, on recommendations from the police chief and city administrator, voted to fire him. A federal appeals court ruled that the defendants were entitled to qualified immunity on a First Amendment retaliation claim since it was not “clearly established” that his speech about patrol vehicle safety was constitutionally protected as the defendants could reasonably conclude that he was speaking solely as an aggrieved police officer, and not on a matter of public interest. He further failed to present a viable due process claim because there was no evidence in the record that the officials made official or intentional public statements about the employee's termination. The plaintiff did not show that he was stigmatized by the stated reasons for his discharge and that the statements were made public. Finally, because plaintiff failed to demonstrate a deprivation of a property or liberty interest, his due process claims against the city also failed. However, this ruling did not necessarily resolve the city’s liability in the retaliation claim, and the city had no qualified immunity defense. Mogard v. City of Milbank, #18-2730, 2019 U.S. App. Lexis 23696 (8th Cir.). A police officer claimed that he was fired in unlawful retaliation for statements he made at a public village board meeting concerning budgetary shortfalls. His recommendations would have protected junior officers from layoffs by eliminating benefits enjoyed by more senior officers. The federal trial court, however, entered summary judgment for the defendant municipality and other defendants, finding that the plaintiff had only presented “speculation” in support of his claim, and noting that the officer had over 70 disciplinary complaints on his record. A federal appeals court upheld this result and an award of $66,191.75 in attorneys’ fees to the defendants against the plaintiff’s attorney. The defense counsel repeatedly asked that the plaintiff end the litigation and threatened to ask for sanctions under Rule 11 of the federal rules of civil procedure. The plaintiff’s summary judgment filings, the court ruled, were not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. The discovery process showed an “utter lack of evidentiary support” the plaintiff’s claims, but his attorney opposed summary judgment anyway without a legitimate basis for doing so. McGreal v. Village of Orland Park, #18-3342, 2019 U.S. App. Lexis 19088 (7th Cir.).
A firefighter became a battalion chief, but his relationships with the chief and an assistant chief were strained. One evening, a firefighter with a Hispanic name forgot to stow his gear. Other firefighters displayed the items and posted a paper sign with a Mexican flag and the words “Border Patrol.” The firefighter did not file a complaint but another firefighter reported it. The battalion chief emailed the chief and assistant chief, who concurred that this “crosses the line of firehouse hazing” and asked him to investigate. Four individuals were eventually disciplined, but in the following months, the chief and assistant chief were critical of the battalion chief’s performance on several occasions and said that he might be demoted or reassigned. When he received an offer of employment from another department, they indicated that he would be demoted if he did not take that job. He said he was going to accept the offer, which was contingent upon his passing a physical and psychological exam, and was sent a letter accepting his “resignation.” He replied that he would not resign until the contingencies were met, at which point he was told that he had been terminated and placed on paid leave until he would resign and start new employment.He sued, claiming that he had been retaliated against for opposing workplace discrimination. A federal appeals court upheld rejecting the claim. No reasonable trier of fact, the court stated, could find that reporting the hazing incident was the “but-for” cause of the plaintiff’s constructive discharge. Mollet v. City of Greenfield, #18-3685, 2019 U.S. App. Lexis 17722, 2019 WL 2455735 (7th Cir.). A sergeant sued the county sheriff and several other county employees, asserting several claims related to treatment he asserted that he suffered as a result of his First Amendment protected political associations and beliefs The sergeant ran in an election as the Republican challenger to the Democratic sheriff. Upholding summary judgment to the sheriff on First Amendment discrimination and retaliation claims, a federal appeals court found that the plaintiff’s claims suffered from a “fatal flaw” because no adverse employment action was shown. His suspension fell outside the applicable two-year limitations period, and the record was devoid of any evidence that a reprimand or transfer in any way changed the terms or conditions of his employment. There was also no merit to the sergeant’s contention that being left off of the promotion list due to the suspension and reprimand was an adverse employment action where the sergeant offered no evidence as to how the promotion list was compiled or the significance of the list. None of the complained of actions, either separately or together, amounted to an adverse employment action. Charleston v. McCarthy, #18-1965, 2019 U.S. App. Lexis 17740, 2019 WL 2454230 (8th Cir.). The highest court in Massachusetts upheld an award of damages of $1,332,271 against the Massachusetts Water Resources Authority for retaliatory termination of an employee. The jury found that the MWRA fired the plaintiff in retaliation for his taking leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2615 to recover from foot surgery, and expressing his intention to take FMLA leave in the future. The jury awarded back pay damages for lost wages, made an advisory award of damages for the future loss of his pension benefits, and awarded damages for emotional distress and punitive damages. The trial judge additionally awarded liquidated damages and attorney's fees and costs. The Massachusetts Supreme Judicial Court affirmed, rejecting the defendant’s challenge to the jury instructions and to the calculating and award of damages. The jury was properly instructed that they had to find that “but for” the plaintiff exercising their rights under the Family and Medical Leave Act, they would not have been terminated. DaPrato v. Massachusetts Water Resources Authority, #SJC-12651, 482 Mass. 375, 2019 Mass. Lexis 299, 2019 WL 2364353 (Mass.). A former police chief sued his city’s former city manager, claiming that his First Amendment rights were violated by subjecting him to adverse employment actions in retaliation for him engaging in constitutionally protected speech. The plaintiff suspected that there were improper city accounting and budgeting practices by the city manager and expressed his concerns to a number of city council members and others. A jury verdict in favor of the plaintiff awarded him $1,117,488 in economic damages and $3,000,000 in non-economic damages. A federal appeals court upheld this result. He provided sufficient detail about his speech to establish that it substantially involved a matter of public concern. The plaintiff spoke as a private citizen rather than a public employee, and the trial court properly concluded that his retaliation claim could be based in part on the defendant's own speech acts, in the form of defamatory communications to the media about him. The defendant waived his argument that his actions were supported by an adequate justification. Sufficient evidence supported the conclusion that the defendant's retaliatory actions proximately caused the plaintiff’s termination and the defendant was not entitled to qualified immunity Greisen v. Hanken, #17-35472, 2019 U.S. App. Lexis 16202, 2019 WL 2312566 (9th Cir.). An employee of OSHA filed more than 60 Equal Employment Opportunity (EEO) complaints over a 5-year period. She claimed that in retaliation for those and other EEO complaints filed a decade earlier, her employer created a hostile work environment in that her supervisors: denied her the ability to work regularly from home, shifted her job duties to include more clerical work, reassigned her, and failed to promote her to Assistant Regional Administrator, instead selecting an attorney who improperly disciplined her in retaliation for making additional discrimination claims. In 2008, she received notice of OSHA’s decision to terminate her. She left OSHA and filed another EEO complaint, claiming constructive discharge. She sued under Title VII of the Civil Rights Act for retaliation and retaliatory hostile work environment. A federal appeals court upheld judgments in favor of the agency. The court acknowledged that federal employees may bring retaliation claims under Title VII, but declined to consider whether the same standard governs federal- and private- sector retaliation claims, and what standard applies to a federal retaliatory hostile work environment claim. It found that, based on the evidence, the plaintiff employee could not prevail under “any” potentially applicable standard, whether she needed to show a retaliatory hostile work environment that was “materially adverse” or “severe and pervasive,” so any alleged error in the jury instructions was harmless. The plaintiff failed to rebut the agency’s offered non-retaliatory reasons for the changes in her work assignments. Komis v. Secretary U.S. Dept. of Labor, #14-3813, 2019 U.S. App. Lexis 7282, 2019 WL 1121383 (3rd Cir.). A federal appeals court upheld the dismissal of a sheriff’s department sergeant’s federal civil rights lawsuit claiming that various defendants retaliated against him in violation of his First Amendment rights after he filed a report that a fellow sergeant had misused a digital repository of criminal justice information. He also claimed that they had infringed his right to intimate familial association with his sister. The plaintiff’s sister had ended a long relationship with his fellow officer and took up with another man. “Bad blood” between the plaintiff and his fellow officer followed, in part because the plaintiff refused to encourage a reconciliation. The fellow officer then used a police database to check out the man who was living with the plaintiff’s sister (and his son) and saw that the man was a felon. When the plaintiff reported this misuse of the police database, the fellow officer was disciplined. The plaintiff alleged that he was subjected to harassment by the fellow officer, the county, and other officials, as retaliation for reporting this misconduct, in violation of his First Amendment right to speak on a matter of public concern; and that the defendants infringed on his right to intimate association with his sister by setting one against the other in the fellow officer’s quest to win back the sister. The court found that the defendants were entitled to qualified immunity because a reasonable officer would not have known that it was clearly established law that defendant's speech constituted a matter of public concern. Further, the plaintiff failed to allege any facts that would allow a reasonable jury to infer that anyone intentionally interfered with his relationship with his sister. Gorman v. Rensselaer County, #17-1120, 910 F.3d 40 (2nd Cir. 2018). An employee of a state insurance regulatory agency claimed that she needed reasonable accommodations for mental health disabilities. Her difficulties began in a prior state job in a prison when she learned that an inmate wrote in his diary that he wanted to torture her sexually. She reacted emotionally and left her employment and sought medical treatment for the trauma. Later, she began working at the state insurance agency as a clerical assistant. She received good reviews, promotions, and no discipline until the termination at issue in the lawsuit. When that agency hired a recently released offender, this apparently scared her, and as a result she was diagnosed with depression, bipolar disorder, and post-traumatic stress disorder. Among other things, she requested that her coworkers not “startle” her. She received these accommodations for several years. In May 2013, however a frustrated supervisor reached toward her and stated, “I could just strangle you.” An investigation of this incident revealed that several months before, the employee commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.” The employer then terminated her, and she sued for disability discrimination and retaliation. Summary judgment was granted for the employer on some claims and the plaintiff lost on the rest of them at trial. A federal appeals court upheld this result, finding that the closest the plaintiff came to proving a failure-to-accommodate claim was under the theory that she asked her coworkers not to startle her, but the supervisor threatened to strangle her, but that episode was an isolated, “one-off” event. She also argued that her elevator comment was statutorily protected activity but the court ruled that she failed to prove both the required subjective and objective factors because she did not have a sincere, good-faith belief that she was opposing an unlawful practice and her remark did not involve discrimination prohibited by Title VII. She did not show that she had complained to anyone about disability discrimination and had suffered retaliation as a result. Scheidler v. Indiana, #17-2543, 2019 U.S. App. Lexis 2616, 2019 WL 324687 (7th Cir.). A former U.S. Postal System employee failed to show that she was discriminated against on the basis of her Chinese race or national origin, but did show that the defendant’s decision to terminate her employment rather than impose lesser discipline was in unlawful retaliation for her protected conduct in earlier having filed several EEOC complaints. A federal appeals court further held that the proper remedy, back pay of $223,164 rather than reinstatement or front pay, was properly awarded. Anderson v. Brennan, #17-2162, 2018 U.S. App. Lexis 5213 (1st Cir.).A sheriff was entitled to summary judgment on an employee’s claim that the unauthorized review and disclosure of the plaintiff employee’s confidential personnel files to support her racial and religious discrimination claims constituted protected activity under Title VII. The appeals court held that unauthorized disclosures of confidential information to third parties are generally unreasonable. In this case, the plaintiff's unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity. The court also held that section 704(a) of Title VII of the Civil Rights Act does not protect a violation of a valid state law that poses no conflict with Title VII. The court explained that she failed to meet her burden of proving that the sheriff terminated her employment because she engaged in protected activity. Netter v. Barnes, #18-1039, 2018 U.S. App. Lexis 32358 (4th Cir.). A Department of Veterans Affairs (VA) employee worked as a cook in the Nutrition and Food Service Department in 2008-2009 and again from December 2013 until April 2015. The four‐year gap in employment occurred because he was fired and then, after a successful Equal Employment Opportunity (EEO) complaint was reinstated to his former position. He sued, claiming that upon reinstatement he faced retaliation from the VA and two supervisors for his EEO activity. The trial court granted the VA summary judgment, finding that none of the alleged retaliatory actions constituted a materially adverse action. The federal appeals court affirmed, noting that some of the actions constituted isolated administrative errors that were subsequently corrected, representing the kind of minor workplace grievances which Title VII does not protect against. Other incidents may have resulted in “annoyance and frustration,” but they did not cause the kind of harm that would dissuade a reasonable employee from engaging in protected activity. Unfulfilled threats that do not produce harm do not qualify as adverse actions. The employee also failed to demonstrate a causal link between his protected activity and nearly all of the alleged retaliatory actions; failed to identify any similarly‐situated employee, and failed to demonstrate that the VA’s legitimate, non‐discriminatory explanations were pretextual. Lewis v. Wilkie, #18-1702, 2018 U.S. App. Lexis 33439 (7th Cir.). The plaintiff was an employee of a fire protection district for decades. He was a member of the retirement program, administered by the Contra Costa County Employees’ Retirement Association (CCERA). In 2012, he decided to retire. His final day on the job was December 12, and he applied for a service retirement to CCERA the following day. On January 1, 2013, the California Public Employees’ Pension Reform Act took effect, mandating the complete or partial forfeiture of pension benefits/payments if a public employee was convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Gov. Code 7522.72(b)(1).). In February 2013, he was indicted, and in April 2013, the CCERA approved his retirement application, fixing his actual retirement as December 13, 2012. He began receiving pension checks. In December 2015, he pled guilty to embezzling county funds for 12 years, ending in December 2012. CCERA reduced his monthly check in accordance with the forfeiture provision. An intermediate state appeals court held that the forfeiture provision applied and declined to address whether it would amount to an unconstitutional impairment of his employment contract or an ex post facto law for someone in a different situation. Finishing the last day of work, the court stated, does not automatically make a public employee a “retired” former employee. Wilmot v. Contra Costa County Employees’ Retirement Association, #A152100, 2018 Cal. App. Lexis 1097. An employee of a county probation department sued her employer for discrimination and retaliation. She claimed that two coworkers reacted by threatening her life. In a new lawsuit, she asserted that a colleague overheard the human-resources director tell the deputy chief “to figure out a way to get [the employee] alone and away from her partner.” The deputy chief radioed for the employee to join him and another supervisor at an Adult Probation facility to question a probationer. After the questioning, the deputy chief and the probationer left through the back door. The other supervisor then locked the front door and escorted the employee toward the back. Near the back door, the employee claimed to have heard the deputy chief say to someone “Do it to her when she gets out the door,” but nothing happened. After she filed another EEOC charge based on these events, the deputy chief allegedly approached her in the employee parking lot and warned her that “I could hit you and nobody would give a fuck.” The federal appeals court upheld summary judgment for the defendants, finding that the alleged threat to the plaintiff was “too oblique” to support a jury concluding that she was subjected to severe or pervasive harassment. Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, #16-1927, 893 F.3d 372 (7th Cir.). A woman claimed that she was unlawfully retaliated against while employed as a Community Service Officer for the police department. A federal appeals court found that she was fulfilling her professional duty for the police when she spoke at a City Club event about alleged racial profiling. Therefore, because she spoke there as a public employee, and not as a private citizen, her speech was unprotected, and her First Amendment retaliation claim failed. The court also ruled, however, that an amended Last Chance Agreement which plaintiff was required to sign before returning to work was an unconstitutional prior restraint. Paragraph 5(g) of the amended Agreement barred plaintiff from saying or writing anything negative about the Department, the City or its employees. The Amended Agreement by its terms restricted private citizen speech on matters of public concern and therefore failed the Pickering balancing test. Therefore, the amended Agreement restrained the plaintiff’s speech as a private citizen on matters of public concern and the defendants failed to present justifications sufficient to warrant the overbroad restrictions. Therefore, the prospective restriction violated the First Amendment and claims relating to this could continue. Barone v. City of Springfield, #17-35355, 2018 U.S. App. Lexis 25156, 2018 WL 4211169 (9th Cir.). A city employee plaintiff showed that she engaged in protected activity under Title VII when she complained about what she reasonably believed to be a hostile environment and showed that engagement in protected activity caused the city to fire her. In this case, a reasonable jury could find that the city knew or should have known that the plaintiff was complaining about a Title VII violation and that her complaints caused her termination. Therefore, the plaintiff had established a prima facie case of unlawful retaliation, and the trial court's grant of summary judgment to the city was improper. Strothers v. City of Laurel, Maryland, #17-1237, 2018 U.S. App. Lexis 18417 (4th Cir.).A former police officer claimed that he was fired after reporting acts of misconduct by his former supervisor in violation of his First and Fourteenth Amendment rights. A federal appeals court upheld the trial court’s grant of summary judgment for the defendants, holding that the supervisor was entitled to qualified immunity on all properly pleaded claims against him, as he had not violated clearly established law and that the plaintiff's claims against the City were barred by res judicata because of prior proceedings. Sims v. City of Madisonville, #16-20440, 2018 U.S. App. Lexis 17776 (5th Cir.).A firefighter applicant passed the written examination, an oral interview, and a Certified Physical Agility Test and was placed on a ranked list for hiring consideration. The Department hired two academy classes from that ranked list, but the plaintiff was not selected. His father had filed a qui tam suit under the False Claims Act, 31 U.S.C. 3730(h)(1), asserting that the Department had made false statements of material fact to the federal government in order to receive federal grant funds. The father was a backup investigator in the Department’s arson unit. The plaintiff joined his father’s suit, and claimed that the Department retaliated against him for his father’s complaint. A federal appeals court upheld summary judgment on the plaintiff’s retaliation claim. The district court granted the Department summary judgment on Quinn’s retaliation claim. He was ranked, at best, five spots too low to receive an automatic selection and every discretionary pick in both classes had more markers than he did, consistent with the Department’s policy for discretionary selections. There was no evidence, the court concluded, from which a reasonable jury could conclude that the father’s suit was even a motivating factor in the decision not to hire the son. Even assuming that the meaning of “employee” under section 3730(h) could encompass job applicants; there were no facts from which a jury could conclude that the plaintiff was retaliated against because of his father’s suit. Heath v. Indianapolis Fire Dept., #17-2564, 2018 U.S. App. Lexis 12181 (7th Cir.). A former police officer failed to show that a town and its police department improperly retaliated against him because of his protected union and other First Amendment expressive activity in filing reports with the state Attorney General that raised questions about the town’s alleged quota ticketing policies. There was no evidence that the defendants even knew that the reports had been filed with the Attorney General during the time when some of the allegedly retaliatory actions took place. The alleged retaliation for his union activity consisted of a critical email sent to him, which the court characterized as “mild,” and which did not appear to deprive him of any rights. Delaney v. Town of Abington, #16-2308, 2018 U.S. App. Lexis 11720 (1st Cir.). After a trial, a jury found that the Michigan Department of State Police had retaliated against a former desk sergeant by transferring her from her longtime post to a post in another city. Department officials initiated the process that culminated in her transfer shortly after she had filed the second of two complaints alleging sexual assault and sexual harassment by a male coworker. She was awarded $350,000 in compensatory damages. A federal appeals court upheld this result, rejecting the employer’s claim that the trial record contained no evidence from which a reasonable jury could have found in the plaintiff’s favor or upon which the jury’s award could be justified. The employer conceded that the long distance of the new post from the employee’s home made her transfer there an adverse employment action. Her supervisor initiated the transfer process with explicit reference to her complaints, explaining to both his superior and the Human Resources Department that the transfer was necessary for one reason and one reason only: her sexual-harassment complaints. An “unbroken chain” connected her supervisor to her transfer. Mys v. Michigan Dept. of State Police, #17-1445, 2018 U.S. App. Lexis 7735, 2018 Fed. App. 63p (6th Cir.). A staff attorney for a state agency sued her supervisor for unlawful First Amendment retaliation. A federal appeals court ruled that it lacked jurisdiction to hear an interlocutory appeal from the denial of qualified immunity to the supervisor because existence of qualified immunity depended on resolution of factual disputes as to whether the employee was told to make false statements as to the meaning of Connecticut statutes and whether the employee’s complaints fell outside the scope of her job responsibilities. The plaintiff began making complaints that the program she was assigned to was being improperly administered. She was responsible for providing legal services to the Comptroller and Connecticut State Employees Retirement Commission, and prepared written materials for the Commission explaining that an incorrect standard was being applied. She claimed that the Comptroller and others subsequently retaliated against her by systematically stripping her of job responsibilities. She filed a whistleblower complaint with the Auditors under Connecticut General Statutes in December 2013 and by December 2014, her position in the Division was eliminated. Although she then transferred to another state agency, she lost two credited years of service for the purpose of eligibility for compensation and benefits. Brown v. Halpin, #16-3615, 2018 U.S. App. Lexis 6387 (2nd Cir.). A county employee claimed that she was among those selected to be laid off in retaliation for exercising her rights as an employee, to interfere “with her holding an elected office as a Retirement Board Trustee,” to attempt to coerce “and influence” her “political activity as a Retirement Board Trustee” and retaliating against her because of her “complaints about violations of her activity directed to labor organizing County workers.” Because she did not exhaust her available internal administrative remedies before filing a civil action against her employer, summary judgment against her was upheld. A Labor Code section, which does not require a litigant to exhaust administrative remedies before bringing a civil action, applies only to claims before the Labor Commissioner, the court held and did not modify the requirement to exhaust administrative remedies before filing suit. Terris v. County of Santa Barbara, #B268849, 20 Cal. App. 5th 551, 229 Cal. Rptr. 3d 407, 2018 Cal. App. Lexis 128. A federal appeals court upheld the trial court’s dismissal of plaintiff’s complaint that alleged retaliatory termination from the police department. The court held that the plaintiff’s retaliation claim, on its face, was outside the bounds of the Title VII statute. Nothing in the complaint or his deposition testimony indicated that he was pursuing a Title VII claim encompassing race-based discrimination and thus he could not submit a claim that his termination was in retaliation for that via an affidavit at the summary judgment stage. Winfrey v. Forrest City, Arkansas, #17-1604, 2018 U.S. App. Lexis 3639 (8th Cir.). A former city planning director sued the city mayor under 42 U.S.C. Sec. 1983, claiming that the mayor did not reappoint him to his position because he had sent an email to the city attorney raising concerns about impropriety relating to a city project. He claimed that this constituted illegal retaliation against him for exercising his First Amendment rights. A federal appeals court overturned a denial of qualified immunity to the mayor, who argued that a reasonable person in his position would not have understood the plaintiff to have spoken outside of his official duties, and that a “reasonable official: would have believed the email at issue here exceeded the scope” of his official duties. A split appeals panel concluded that the plaintiff failed to show a violation of clearly established federal law on an essential element of his claim, and therefore reversed the trial court’s denial of qualified immunity to the mayor. The key question was whether the mayor reasonably could have believed, at the time he fired the employee, that a government employer could fire an employee on account of speech stemming from almost 30 years of high-level involvement with an ongoing project. The employee had not shown that such a belief was unreasonable based on then-existing law. Knopf v. Williams, #17-8025, 2018 U.S. App. Lexis 5554 (10th Cir.). In a complaint described as “disjointed and murky at best,” a man claimed that he worked for a county in its transportation department from 1994-2013, and in 2009, was promoted to a supervisory position. In 2013, he was questioned regarding a bidding process and refused to sign documents relating to the probe. During this interview, investigators asked him if he was carrying a weapon. He admitted that he had a knife, which he gave to his lawyer. Months later, coworkers filed a grievance complaining that he was getting extra work privileges. He was placed on emergency leave with pay pending an investigation. Days later he was placed on emergency suspension for unspecified “major causes.” An investigator produced witnesses to an alleged threat by him to “shoot up the workplace” who gave inconsistent accounts. He was charged with disorderly conduct and released on bond. He was fired for possessing a weapon and making a threat of violence. The disorderly conduct charge was dropped. He sued, claiming violations of procedural and substantive due process and race-based retaliation under 42 U.S.C 1981 and 1983. A federal appeals court upheld dismissal of the lawsuit. The court commented that the complaint did not show how this “whirlwind of alleged unfairness” violated any federal constitutional or statutory provision. In particular, the complaint contained no factual content that even hinted at a race-based retaliation claim. He stated that he was a Caucasian male subjected to “reverse discrimination,” and had “helped” another employee with an issue of race discrimination, but gave no details. Catinella v. Cook County, #16-2278, 2018 U.S. App. Lexis 2426 (7th Cir.). |
|
Overturning a trial court ruling, a federal appeals court ruled that a county sheriff and an undersheriff were entitled to qualified immunity on First Amendment claims by a number of employees because the constitutional rights to protect the statements they claimed they were punished for were not clearly established. The claims were brought by three categories of subordinates: (1) A lieutenant whose claim arose out of her statements to the media. The sheriff and undersheriff allegedly secretly took an Internal Affairs document, planning to use it against a political opponent. At the time, the lieutenant was in charge of the Internal Affairs Unit of the sheriff's office. She knew that the document was missing but did not know who had taken it. The mystery of the missing document generated public interest. To address the matter, the sheriff allegedly ordered her to speak to the media and deliver a false narrative, saying that the Internal Affairs document had been stolen by supporters of the political opponent. She spoke to the media as requested, but she did not give the story crafted by the sheriff, instead she claimed, she “spoke truthfully.” In response, she claimed, the sheriff transferred her to the midnight shift. Her speech was not definitely protected, the appeals court ruled, as it was not clearly established that her speech fell outside of her duties as a public employee. (2) A sergeant whose claim arose out of his political support for the candidate opposed by the defendants. Upon learning of the sergeant’s support, the sheriff allegedly retaliated by subjecting him to a “criminal investigation” into the missing Internal Affairs document, including interrogations, two lie-detector tests, and accusations that he had stolen the document and ordering a criminal investigation into the sergeant’s two children, both of whom were employees of the sheriff’s office. The appeals court held that it was not clearly established that such investigations of the sergeant and his children constituted adverse employment actions. The sergeant did not allege that his criminal investigation was made public, or that it resulted in humiliation, damage to reputation, or harm to his future employment prospects. (3) Three commanders whose claims arose out of their filing of complaints about the sheriff and undersheriff with the Equal Employment Opportunity Commission and the El Paso County Board of County Commissioners alleging improper practices. When the commanders notified the undersheriff of these complaints, three hours later the defendants allegedly put the commanders on paid administrative leave, confiscated their telephones, tablets, weapons, badges, and vehicles, and had them escorted out of the building. They alleged humiliation from the second and third actions. And in the aftermath of the complaints, the defendants filed Internal Affairs complaints against two of the commanders, subjecting them to internal investigations. The appeals court ruled that it was not clearly established law that the investigation of the commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Lincoln v. Maketa, #16-1127, 2018 U.S. App. Lexis 1055 (10th Cir.). |
A federal appeals court upheld a judgment after a jury trial in favor of a female former lieutenant firefighter on both her gender-based hostile work environment sexual harassment/discrimination and retaliation claims. Off-duty evidence demonstrating that she was berated, spat at, and otherwise assaulted by a co-worker while a supervisor stood by was not isolated, non-work related conduct, but rather supported the magnitude of the workplace harassment; A hostile work environment was proven through evidence of repeated hostile, gender-based epithets (such as “cunt,” “bitch,” or “lesbo”), ill treatment of women as workers, sexual innuendoes, and preferential treatment for women who were more likely to sleep with the men of the fire department. The plaintiff had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team. The plaintiff was awarded emotional and front pay damages. Franchina v. Providence Fire Department, #16-2401, 2018 U.S. App. Lexis 1919 (1st Cir.).
A Hispanic firefighter alleged that after a transfer other firefighters began harassing him, calling him “spic” and “f--king Puerto Rican,” and stealing his food. He also claimed that the number of times he was assigned to work at different locations was excessive when compared to assignments given to non-Latino colleagues. His supervisor did not remedy the behavior. At one point, he called 911 about a “chest bump” incident but did not press charges because of pressure from the chief. The next day, he experienced chest pain, dizziness, and a migraine. A physician diagnosed him with a work-related chest contusion, work-related stress, and possibly post-traumatic stress disorder and ordered medical leave. The Medical Section Chief stated that the employer would not pay for treatment. After he had been on medical leave for six months, he obtained written authorization to return to work without restrictions, but the employer required additional documentation. Alamo filed a charge with the EEOC. The employer continued to request additional records. He sued under Title VII, and 42 U.S.C. 2000e. A federal appeals court reversed dismissal of his hostile work environment, disparate treatment, and retaliation claims. The complaint described an investigation into his fitness to work that was so onerous that it could not be completed in four months and sufficiently alleged retaliation. Alamo v. Bliss, #15-2849, 864 F.3d 541 (7th Cir.).
The plaintiff was employed as a Chicago police officer for almost 30 years. He sued, claiming that during the last four years he was harassed by fellow police officers for adhering to Departmental policy and procedure and for filing numerous internal complaints. He asserted claims for First Amendment retaliation, violation of equal protection, civil conspiracy, and procedural due process, and related state law claims against the city and individual officers. He claimed, among other things, that he was denied a Retirement Card when he retired. Without one, he could not carry a concealed firearm, obtain benefits such as health insurance, or find other employment in law enforcement. A federal appeals court affirmed a dismissal in part. His complaints were made pursuant to his job responsibilities, and he spoke as a public employee, not a private citizen, so his speech was not entitled to First Amendment protection. The trial court also properly rejected his equal protection class-of-one claim and his conspiracy claims. Overturning the dismissal of a procedural due process claim, however, the appeals court stated that he sufficiently alleged that he had a legitimate entitlement and cognizable property interest in receiving a Retirement Card. Forgue v. City of Chicago, #16-2857, 873 F.3d 962 (7th Cir. 2017).
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.).
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 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).