Labor & Employment Law Daily City security officer wrongly believed his boss’s alleged flirtation with his girlfriend violated Title VII
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Wednesday, July 21, 2021

City security officer wrongly believed his boss’s alleged flirtation with his girlfriend violated Title VII

By Brandi O. Brown, J.D.

It was not objectively reasonable for the officer to believe that his boss’s interaction with the officer’s girlfriend, who was not an employee of the city, was an unlawful employment practice, so he could not revive his retaliation claim.

A city aviation security officer stationed at the O’Hare airport, who sued his employer for non-promotion that stemmed from allegedly retaliatory disciplinary actions and alleged race discrimination, was unable to revive his suit on appeal to the Seventh Circuit. His retaliation claim had no chance of success, the court explained, because his boss and his girlfriend (a customs employee) did not have the same employer, a fact fatal to his claim. With regard to his discrimination claim, aside from the fact that his discrimination claim was an “attempt to ‘shoehorn a retaliation claim into a disparate treatment framework’,” there was no possibility that a reasonable jury could find that the employer’s reasons for disciplining him were pretextual. The district court’s summary judgment decision was affirmed (Logan v. City of Chicago, July 14, 2021, St. Eve, A.).

On list for promotion. In early 2016, a new Deputy Commissioner of the Chicago’s Department of Aviation, Security, and Safety Division came on board. In the previous September the employee, an Aviation Security Officer, had applied for promotion to sergeant. He was not selected but he was placed on a pre-qualified candidate list, which meant he would be eligible for future vacancies. Thereafter, in March 2017 he believed he was poised to fill one of two sergeant positions that had become available.

Warned boss under “guy code.” However, in the meantime, the employee had an interaction with the new Deputy Commissioner that he believed led him to become a target for disciplinary actions. In early spring 2016, he learned from his girlfriend, who also worked at O’Hare Airport but for United States Customs and Border Protection, that the Deputy Commissioner had come to her office and, while there, had flirted with her. He approached the commissioner and let him know that she was his girlfriend, so he would not “cross that line.” The employee referred to this incident as being part of the “guy code” when explaining why he has approached the commissioner.

Disciplinary suspensions. Thereafter, the employee received multiple disciplinary actions. In July he received a one-day suspension from the deputy commissioner after another worker at the airport complained about an interaction with him. Later that month he learned that he was suspended for 14 days because of several instances in the previous month wherein he had failed to swipe out properly and then entered a later time manually for when he left. Additionally, the suspension accounted for another incident in which another airport worker complained about him.

City told to promote him. After the suspension the employee complained about being bullied at work, although he told the EEO office that it was not an EEO matter and was a “personal matter” between him and the deputy commissioner. However, two months later he reported race discrimination against black officers to the HR division. Three months later he learned that he was ineligible for promotion because of his suspensions, which exceeded the allowable number. He grieved the suspensions and the arbitrator determined that their length was excessive. The arbitrator reduced them to a number that made him once again eligible for the promotion, so the arbitrator ordered the city to promote him and give him back pay and benefits.

The employee filed suit, alleging violations of Title VII and the Illinois Whistleblower Act. The district court granted the employer’s motion for summary judgment. The employee appealed.

Discrimination. As to the employee’s race discrimination claim, both the appeals court and the district court agreed that he was trying to “shoehorn a retaliation claim into a disparate treatment framework.” He claimed that he would have received the promotion but-for being improperly targeted for discipline, either in retaliation for his conversation with the commissioner about his girlfriend or because of his race. With respect to the race bias claim, the employer offered sufficiently nondiscriminatory reasons for disciplining him, including two complaints and his leaving multiple shifts early. The employee argued that he was singled out for discipline, but his comparators did not engage in the same behaviors for which he was disciplined. Aside from his protected class membership, the court noted, there was no evidence in the record from which a reasonable juror could infer that his race was the reason he was disciplined and not promoted.

Retaliation. According to the employee, he was singled out for discipline in retaliation for his conversation with the commissioner. He argued that he had a sincere, good faith believe he was opposing an unlawful practice. However, even assuming he held a subjective belief that he was doing so, the court explained, his belief was not objectively reasonable. His girlfriend and the commissioner did not have the same employer, an undisputed fact that the court found “fatal to his claim.”

No employer-employee relationship. A defendant can only incur liability for sexual harassment under Title VII, the court noted, if there is an employer-employee relationship between the plaintiff and the defendant. In this case, however, the girlfriend worked for Customs and the commissioner worked for the city. While the employee urged the court to take a “broader view of conduct prohibited by Title VII,” the court declined, explaining that Title VII does not cover general bad acts. It would be up to Congress to extend its coverage.

The employee also argued that employers can be liable for negligence when nonemployees or nonsupervisory employees harass their employees, but that was not relevant in this case. The girlfriend’s employer might have been liable under that scenario, but his conversation with the commissioner was not about Customs’ failure to remedy the commissioner’s harassment—it was about the commissioner’s alleged harassment itself.

While an employee can be protected in some circumstances where the challenged practice does not actually violate Title VII, the complaint still must involve discrimination that is prohibited by that law. Given that the commissioner and the girlfriend did not share the same employer, however, the employee failed to show that his belief that he was opposing an unlawful employment practice was objectively reasonable.

The court also rejected the employee’s claim on appeal that the lower court erred by concluding that his claim under the Illinois Whistleblower Act was time-barred.

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