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Discipline Threat for False EEOC Charges Was Adverse Action

By Amanda Bolliger Crespo  8/14/2014
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A police department’s threat to discipline officers for filing false Equal Employment Opportunity Commission (EEOC) charges was an adverse employment action, but the officers failed to overcome the department’s legitimate nonretaliatory reasons for the threat, the 2nd U.S. Circuit Court of Appeals ruled, upholding summary dismissal of a retaliation claim under Title VII of the 1964 Civil Rights Act.

White police officers from the Onondaga County Sheriff’s Department in New York filed an internal complaint of racial harassment. They claimed that O’Dell Willis, a black police officer, started rumors that they were “skinheads.” The department initiated an internal investigation. In their complaint and when interviewed, the officers consistently denied experiencing or observing any confrontational behavior from Willis or any other officers. One officer subsequently withdrew his complaint, stating he had been “misled” by one of the other officers into believing that harassing behavior had occurred.

The other officers filed EEOC charges that escalated their allegations. Two officers described, for the first time, a face-to-face confrontation in which an unidentified black officer accused them of being skinheads. The department’s assistant chief filed a misconduct complaint against them, claiming the officers violated departmental regulations that prohibited filing any false report by making false complaints to the EEOC. The department referred the EEOC charges and misconduct complaint to its professional standards unit (PSU) for further investigation.

The PSU interviewed each of the officers in the presence of his union representative. The PSU informed them that the department was considering disciplinary action based on the falsity of their EEOC complaints. When questioned about the inconsistencies, each officer admitted he had no firsthand knowledge of any confrontational behavior by Willis or any other officer. The PSU also interviewed Willis, who denied ever suggesting the officers were skinheads and claimed the whole affair had put undue stress on him. The PSU concluded the officers violated departmental policies by filing false reports with the EEOC, but the department took no official action against them.   

The officers sued the department, Willis and others in the Northern District of New York, alleging retaliation under state and federal law. The department moved for summary judgment on the grounds that the department’s threat of discipline was neither adverse nor retaliatory. The district court agreed and dismissed the retaliation claims in their entirety.

On appeal to the 2nd Circuit, the court held that threatening discipline for filing a false discrimination complaint was an adverse action. Filing a knowingly false EEOC charge might support criminal charges, but that did not necessarily entitle employers to monitor EEOC proceedings and respond with disciplinary action against the filing employee(s). The standard for protected conduct is whether an employee complained “in good faith.” Threatening to discipline an employee for making a false discrimination charge was not “per se retaliatory,” but would require the employer to produce evidence of a nonretaliatory reason for the threat.

Here, the officers’ retaliation claim failed because they “presented no evidence that the warning about disciplinary action was intended to retaliate for any reason other than the apparent falsity of the EEOC charges and the complex circumstances those false charges created.” It was undisputed that the officers gave “materially inconsistent statements.” The allegation about the confrontation, which could only have referred to Willis, seemed “intentionally false.”

More importantly, the officers’ false charges against Willis could be viewed as a racially-driven campaign of harassment against Willis by the white officers. Notably, Willis had previously won a Title VII hostile environment and retaliation lawsuit against the department, after which racial tension persisted.

If employers have an independent duty to investigate and curb racial harassment when they become aware of it, then employers must be allowed to investigate, with a view to discipline, false complaints that themselves might be viewed as racial harassment. In other words, employers should not have to choose between liability for retaliating against employees for making false claims, or liability for failing to prevent racial harassment in the form of false claims.

Finally, the requirement that law enforcement officials file reports accurately gave the department a greater interest than most employers in disciplining officers who did not take that obligation seriously. The department not only had a nondiscriminatory, generally applicable policy that prohibited and set forth how it would deal with false charges, but filing a false charge could jeopardize an officer’s credibility if the officer were cross-examined about the charge in an unrelated case.

Taken together, these “unusual facts” warranted summary judgment in the department’s favor. The court cautioned, however, that retaliation cases based on threats of discipline for a false complaint “are generally strong and the employers’ rebuttals generally nonexistent or weak.”

Cox v. Onondaga Cty. Sheriff’s Dept., 2nd Cir., No. 12-1526 (July 23, 2014).

Professional Pointer: Employers can and should investigate all complaints of harassment based on a protected characteristic, including when the allegedly harassing conduct takes the form of falsely accusing the victim of discrimination or other unlawful activity. However, given that threatening discipline for a false discrimination complaint can independently support a retaliation claim, employers should exercise caution and gather all the facts before discussing discipline with an employee based on the accuracy of his or her protected complaint.

Amanda Bolliger Crespo is an attorney in the Portland, Ore., office of Ogletree Deakins, an international labor and employment law firm representing management.

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