Labor & Employment Law Daily City, supervisor not immune from atheist firefighter’s statutory claims
Monday, April 27, 2020

City, supervisor not immune from atheist firefighter’s statutory claims

By Lisa Milam, J.D.

Kentucky’s Claims Against Local Governments Act did not shield a municipality from statutory claims brought by an atheist firefighter under the Kentucky Civil Rights Act. Nor was his supervisor immune.

A firefighter who claims to have endured steady abuse from coworkers and his supervisor because he is an atheist is entitled to proceed with his hostile work environment and retaliation claims under the Kentucky Civil Rights Act, and his retaliation cause of action against his supervisor. The state’s municipal liability statute shields cities from tort actions but not statutory claims under the KCRA. And the KCRA, unlike Title VII, allows retaliation claims against individuals. Therefore, the district court properly rejected the defendants’ pleas of qualified immunity, the Sixth Circuit found. One noteworthy issue not before the court on appeal: whether atheism is a protected class under the KCRA (Queen v. City of Bowling Green, Kentucky, April 22, 2020, Bush, J.).

Harassed because he is an atheist. The plaintiff claims that from the start of his employment as a firefighter, he was subjected to regular harassment from his coworkers and supervisor. They called him a “pagan” and his supervisor once said that “atheists deserve to burn.” Another supervisor said he’d “be damned if I work with [atheists]” and that he was “sure as hell glad none of those f[***]ers work here.” They asked the plaintiff which church he attended, and told him to join one and get “saved.” He was forced to participate in Bible studies, during which he was instructed to read specific Bible verses.

The plaintiff complained about the ongoing harassment to his supervisor, after about a year into the job. According to the plaintiff, his supervisor was hostile and shut the conversation down. A day or two later, the supervisor told the plaintiff that he discussed the matter with the fire chief, and they thought that the plaintiff needed “to get employment somewhere else” because “things [were] not working out.” The plaintiff promised he would “try to fit in better,” and the supervisor gave him a reprieve if the plaintiff could “promise not to make any more problems.” The supervisor warned, though: “you need to watch yourself, you’re going to be on the radar for a while.”

His working conditions did not improve, though, and soon after he voiced his complaint, he was deliberately tripped while retrieving his gear from his locker. His coworkers “all laughed afterwards and called [him] a f[****]t and a p[***]y.” The disparaging remarks and conduct persisted throughout his five years on the job, until he took a leave of absence for stress and anxiety, and resigned.

State-law claims. He filed suit in Kentucky state court, alleging claims under the KCRA of hostile work environment based on religion, constructive discharge, and retaliation (among other claims that were dismissed on summary judgment). The court denied the employer’s summary judgment motion as to these claims. The court rejected the defendants’ qualified immunity defense, as well as their assertion that they were entitled to an Ellerth/Faragher defense under the KCRA as a matter of law and so could not be vicariously liable for the conduct of its employees.

On interlocutory appeal, two questions of law were up for consideration: 1) whether the city is entitled to immunity, under the state’s Claims Against Local Governments Act (CALGA), from the plaintiff’s surviving claims of religion-based hostile work environment and retaliation; 2) whether his former supervisor is entitled to qualified immunity from his retaliation claim under the Sixth Circuit’s 2000 decision in Morris v. Oldham County Fiscal Court, as recognized by Kentucky common law.

No immunity under CALGA. The appeals court held that the city was not entitled to qualified immunity under the CALGA because the statute only covers tort actions and not from other forms of legal liability, as the Kentucky Supreme Court has explained. Specifically, under the statute, “a municipality is immune only for torts committed in the performance of legislative or judicial or quasi-legislative or quasi-judicial functions, and can be held vicariously liable for the torts of its employees,” the state high court has held. This holding convinced the federal appeals court that Kentucky courts would not apply CALGA to a KCRA claim. Because the plaintiff’s claims for hostile work environment based on religion and retaliation were not tort actions, the city was not entitled to qualified immunity under the CALGA, and these claims were to proceed on remand.

Claims against supervisor. Under Kentucky common law, qualified immunity extends “to public officers and employees for acts performed in the exercise of their discretionary functions; this immunity can apply to retaliation claims under KRS § 344.280.” It was undisputed that the supervisor’s response to his harassment complaint was a discretionary act within these parameters, so the plaintiff had to establish that the supervisor acted in “bad faith.” The plaintiff urged that, given the language of the KCRA as well as the harassment training acknowledgment that the supervisor had signed, his right to be free from retaliation was clearly established at the time, and the supervisor knew or should have known that the plaintiff was entitled to file a harassment complaint without fear of reprisal. The appeals court agreed that the supervisor would clearly have been on notice that his conduct following the plaintiff’s complaint was a “materially adverse employment action” under the KCRA, and thus, that it would be impermissible under the law to treat him in this manner.

The KCRA largely mirrors Title VII, and the plaintiff’s reprisal claim would be evaluated by Title VII standards. However, the state statute differs in one important way: Unlike retaliation claims brought under Title VII, which imposes liability solely on employers, the KCRA can hold liable individuals who work for the employer as well. Therefore, the appeals court saw no need to distinguish between municipal liability and an individual state actor’s liability.

Applying the “relatively low bar” for showing a materially adverse action, the court held there was sufficient evidence to find the supervisor’s conduct after receiving the harassment complaint amounted to an adverse action. For one, telling the plaintiff that he “should get employment elsewhere,” said the court, “could be interpreted by reasonable jurors to convey the message that [he] was no longer welcome at the Fire Department, thus amounting to a constructive termination.”

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