Supervisor Was Not Personally Immune from Retaliation Claim

By Jeffrey Rhodes June 24, 2020
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firefighter putting out fire

An atheist firefighter could proceed with his claim of retaliation by his supervisor who he claimed threatened to fire him after he complained of harassment based on religion and gender, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff worked as a firefighter for the City of Bowling Green, Ky., from September 2011 until February 2016. From the start, he allegedly was subject to harassment by his co-workers and supervisors because he is an atheist. He said that his co-workers referred to him and other persons who did not espouse Christian beliefs as pagans, a supervisor once stated that atheists deserve to burn, and another supervisor made disparaging comments that he did not want to work with atheists.

The plaintiff's co-workers and supervisors asked him what church he attended and told him to join the church and get saved. According to the plaintiff, he was forced to participate in Bible studies with his co-workers, during which he was instructed to read specific Bible verses. The plaintiff also claimed that his co-workers and supervisors badgered him regarding his sexuality and regularly disparaged members of minority communities.

The plaintiff claimed that he brought the harassment to the attention of his supervisor in 2012, approximately one year into the job. The plaintiff claimed that his supervisor responded with hostility and shut the conversation down and told him that he needed to remember his place.

About a day or two later, the supervisor told the plaintiff that he had discussed the matter with the fire chief, and they both believed that the plaintiff needed to get employment somewhere else because his emergency medical technician certification had expired. The supervisor also stated that things were not working out for the plaintiff, that he needed to be looking for something else and that they should both have a meeting with the fire chief.

Just before the planned meeting with the fire chief, the plaintiff told his supervisor that he was sorry and would try to do better and try to fit in better. The supervisor accepted the plaintiff's apology and said he would forgo the meeting if the plaintiff promised not to make any more problems. But the plaintiff claimed that, shortly thereafter, someone tripped him in the workplace.

In February 2016, stress and anxiety from his colleagues' remarks allegedly caused the plaintiff to take a leave of absence. While on leave, he received phone calls from the supervisor asking why he was absent from work. The plaintiff quit in May 2016 and filed a lawsuit soon thereafter.

He asserted claims under the Kentucky Civil Rights Act of a hostile work environment based on religion and gender, and for forced discharge—"constructive discharge"—and retaliation, as well as violations of the Family and Medical Leave Act (FMLA). The defendants moved for summary judgment. The defendants claimed qualified immunity under Kentucky law and that the city's defense to liability prevented it from being responsible for its employees' actions.

The district court granted summary judgment to the city and the supervisor on the plaintiff's gender harassment and FMLA claims and to the supervisor on the religious harassment claim.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

The district court denied summary judgment to the city and the supervisor on the plaintiff's claim that he was forced to resign and his retaliation claims. The district court also denied summary judgment to the city on the plaintiff's claims for religious harassment and on the city's vicarious liability defense.

On appeal, the 6th Circuit considered whether Kentucky's immunity statute, the Claims Against Local Government Act, barred the plaintiff's claims against the city and his supervisor.

The 6th Circuit noted that the statute generally did not protect local governments from violations of its supervisory responsibility over the wrongful acts of its employees. The court found that the statute covered the supervisor because he was acting within the scope of his discretionary authority. Its protection, however, did not extend to bad-faith actions by the supervisor, which would include any violation of an employee's rights that were clearly established by law.

The plaintiff's right to be free from retaliation was clearly established as of 2012 in light of the Kentucky Civil Rights Act and the anti-harassment training management forms that his supervisor signed. Therefore, the 6th Circuit held that the supervisor could not establish immunity for his alleged actions in retaliating against the plaintiff and upheld the district court's decision.

Queen v. City of Bowling Green, Ky., 6th Cir., No. 18-5840 (April 22, 2020).

Professional Pointer: Public employees often believe that they are protected from liability based on immunity statutes that apply to their employers. In many instances, however, the bad-faith exception will render public employees personally liable for actions that they knew or should have known to be unlawful.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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