Employment Law Daily Black officer ordered to march in MLK parade loses race bias claim, but wins on retaliation
Tuesday, January 30, 2018

Black officer ordered to march in MLK parade loses race bias claim, but wins on retaliation

By Lorene D. Park, J.D.

Following a bench trial on an African-American police officer’s Title VII claims, a federal court in Oklahoma found against his discrimination claim even though he proved race was a motivating factor in his being the only officer ordered to march in the MLK parade, because the action did not change his employment status or the terms and benefits of employment. As such he had not suffered an adverse action. On the other hand, he proved that, in retaliation for his objection to having to march, he was given the worst performance evaluation in 30 years and was moved to a different shift that required him to use accrued time off to spend time with his family. Granting the employee’s request for equitable relief, the court ordered the poor evaluation expunged from his record and ordered the city to return 389 vacation hours and 64 sick leave hours to his leave account (Busby v. City of Tulsa, January 25, 2018, Dowdell, J.).

Marched in parade under protest. Hired by the Tulsa Police Department (TPD) in 1981, the employee worked his way up to become a captain by 2008 and was later assigned to be a second shift commander. In January 2010, the major in charge of the division, who is also African-American, ordered him to march in the MLK parade. He said he did not want to participate because he believed the TPD was trying to use his appearance as a sign that he endorsed the TPD as racially unbiased. He also asked if he could take a few hours of holiday leave during the parade so he would not be required to march as a TPD representative. The request was denied.

Although other captains participated in the parade, the employee was the only captain ordered to do so. Two captains volunteered and the city admitted that one of the four captains under the Mingo Valley division commander, who is white, was not ordered to march and was granted holiday leave. The employee complained that the order to march was “illegal” and “unfair” but he participated under protest.

Negative review, shift change. Thereafter, the employee was allegedly subjected to retaliation. His 2010 performance review was the worst he received in 30 years with the TPD—his opposition to being ordered to march in the parade was prominently identified in the review, including his “Needs Improvement” rating for conformance with rules, policies, and instructions.

In addition, he was moved from the day shift to a newly-created fourth shift (4:00 p.m. to 2:00 a.m.), allowing little time with his wife and young daughters. He testified that he often did not see his daughters during the week, and he missed cheerleading performances and birthdays. He claimed that, as a result, he had to use substantial vacation time he spent years accruing. He filed a formal complaint of discrimination with the TPD on June 18, 2010, and later sued.

Ordered to march based on race, but claim fails. Following a bench trial on the employee’s Title VII claims, the district court ruled in favor of the TPD on his race discrimination claim. The court found that the evidence, including testimony from the employee and the major in charge, supported the conclusion that he was ordered to participate in the MLK parade based on his race. However, the court further concluded that being ordered to march in the parade and being denied leave for a few hours to avoid marching did not constitute a significant change in his employment status, benefits, or conditions of employment. At most, the actions were a “mere inconvenience” for less than a day. Moreover, the employee did not introduce evidence that he suffered any damages, nor did he request an award of damages, for his disparate treatment claim.

Officer prevails on retaliation claim. On the other hand, the employee prevailed on his Title VII retaliation claim. With respect to his protected activity, the employee produced evidence that he believed in good faith, and informed his employer that he believed, that the division major’s order constituted unlawful race discrimination. And as for adverse employment actions, the court found that a reasonable employee would have found the 2010 performance evaluation to be materially adverse such that a reasonable worker would be dissuaded from engaging in protected activity. Specifically, it was the worst evaluation he had received in 30 years and it included serious critiques that he was “openly defiant about some assignments and directives” and had “often been insolent, insubordinate and hostile.” The court further determined that the employee established a causal link to his protected activity, particularly because his opposition to being ordered to march in the parade was cited more than once in the evaluation.

Likewise, the shift change was materially adverse because it was a hardship on the employee and his family and, to maintain a semblance of family life and see his daughters after school, he was forced to use substantial amounts of vacation time that he spent years accumulating. The court also found that this action was causally linked to the employee’s race discrimination complaint. Though the major in charge of the division denied making the decision out of anger or retaliation, he admitted that at the time he decided to move the employee to the new shift, he was feeling “hurt and disappointment” because of the employee’s claim of race discrimination.

Moreover, the major made the transfer decision soon after the parade but didn’t tell the employee for months and, meanwhile, he wrote to the chief asking that the employee stay under his command, indicating that he kept the employee there to follow through on the retaliatory shift change. The court also noted there was a practice in the TPD of giving senior captains preference when possible in shift and day assignments, but the employee was denied his request to stay on the second shift even though he was the most senior captain. Based on the foregoing, the court concluded that retaliation was the but-for cause of the transfer.

Equitable relief. The employee requested only equitable relief, so the court ordered that the negative evaluation be purged from his records and ordered the city to restore to him the 389 acquired vacation hours and 64 hours of sick leave he used due to the retaliatory transfer.

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