Worker at Odds with Supervisor Was Not Victim of Retaliation

By Jeffrey Rhodes August 20, 2019
Worker at Odds with Supervisor Was Not Victim of Retaliation

​A firefighter who had a strained relationship with his new department chief and then complained of a racially insensitive incident could not show that the chief's subsequent discipline of him was retaliatory, the 7th U.S. Circuit Court of Appeals ruled.

The plaintiff began working as a firefighter for the Greenfield, Wis., Fire Department in 1995. He rose through the ranks and became a battalion chief in 2009.

In November 2011, the department appointed a new chief and assistant chief. The plaintiff and new chief were friendly before the chief was appointed, but following the appointment, phone calls and text messages between the two ended. The relationship was further strained because the plaintiff thought the chief's actions were inconsistent with the vision for the department they had discussed prior to the promotion.

At the end of each shift, the firefighters stowed their gear and bedding, and when one failed to do so, other firefighters sometimes pranked the offender. In February 2012, a Latino firefighter forgot to stow some of his gear. The firefighters on the following shift hung the items from the ceiling and posted a paper sign with a Mexican flag printed on it and the words "Border Patrol" written beneath it. The firefighter did not file a complaint, but another firefighter who found the incident discriminatory reported it to her superior officer, who reported the incident to the plaintiff.

The plaintiff e-mailed the chief and assistant chief later that evening and informed them of the incident. The assistant chief thanked the plaintiff for bringing the incident to his attention and asked him to investigate it and report back his findings. An individual took responsibility for the incident, and four individuals were disciplined. One lost a day of vacation, and three received verbal reprimands.

In the following months, the chief and the assistant chief criticized the plaintiff's performance. They critiqued his leadership skills and removed him from leadership on a training team and from overseeing the firefighter internship program. They also criticized the plaintiff's communication skills and asserted that he had been critical of them with his fellow firefighters. The chief told the plaintiff in a meeting in November 2012 that he needed to change. He also informed the plaintiff that it may be too late for him to change and that he might be demoted or reassigned.

The following month, the plaintiff applied for a position in Menomonee Falls, Wis., and received a conditional job offer. On Feb. 8, the plaintiff met with the chief and assistant chief, and they indicated that he would be demoted if he did not take the position in Menomonee Falls. The plaintiff told the assistant chief he was going to accept the offer, which was contingent upon his passing a physical and psychological exam, but he wanted to delay his resignation. The chief wanted to fire the plaintiff soon after this notice. The plaintiff was placed on paid leave until shortly before he started at Menomonee Falls.

The plaintiff filed a complaint in federal court, alleging he was retaliated against for opposing discrimination in the workplace. The complaint claimed that the plaintiff was treated poorly and forced to resign as retaliation for complaining about the racial incident. The defendants moved for summary judgment, which was granted by the district court.

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On appeal, the 7th Circuit considered whether the plaintiff's complaint about the racial incident resulted in adverse action. The plaintiff argued that several causes may contribute to an adverse employment action. However, the 7th Circuit relied on U.S. Supreme Court case law in finding that the plaintiff cannot show that the complaint was just one cause of the adverse action but must show it was the cause.

The court noted that the plaintiff and the chief were at odds soon after the chief assumed his new role and that the chief began criticizing the plaintiff before he reported the racial incident. There was also evidence that the chief and assistant chief both responded promptly and positively to the plaintiff's complaint about the racial incident and agreed that the conduct was unacceptable. As a result, the 7th Circuit upheld the district court's dismissal of the action on summary judgment.

Mollet v. City of Greenfield, E.D. Wis., No. 18-3685 (June 12, 2019).

Professional Pointer: The fact that an employee has complained about discrimination or harassment does not make the employee immune from later discipline. However, the employer must make sure that the reason for any subsequent adverse action is distinct from and not influenced by the employee's complaint.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.



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