Employment Law Daily No way 'they' would give job to white male comment supports $600K award on conspiracy, reverse bias claims
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Thursday, January 21, 2016

No way 'they' would give job to white male comment supports $600K award on conspiracy, reverse bias claims

By Marjorie Johnson, J.D. A white male officer who won at trial on conspiracy and discrimination claims against three police officials will get to keep his award of over $600,000. Refusing to toss the jury verdict in his favor on claims he was unlawfully rejected for a promotion to assistant academy director in favor of a black female, the Eighth Circuit held that the director’s alleged comments that his superior wanted a black female for the job, and that there no way “they” were going to put a white male in that position, supported the inference that he and his boss had reached an agreement to discriminate against the officer, sufficient for purposes of his conspiracy claims. Moreover, even though he lost no pay, he could have suffered an adverse action since the position’s supervisory duties, better schedule, greater prestige, and increased opportunity for promotion offered a material change in working conditions (Bonenberger v. St. Louis Metropolitan Police Department, January 19, 2016, Riley, W.). Never considered for the job. Although neither the officer (a sergeant) nor the selected black female sergeant had been interviewed for the job, the academy director recommended the black female to the lieutenant colonel (his boss), who in turn recommended her to the chief of police. Meanwhile, when the officer expressed interest in the job to the director, he told him not to bother applying because the lieutenant colonel wanted a black female for the job. And, when the outgoing assistant director recommended that the director consider the officer for the job, he purportedly told her that “there was no way they were going to put a white male in that position.” After the officer was denied the position, the director purportedly told him that “he had no choice” and “he had to bring color down to the academy.” The officer filed a grievance, which the police chief denied, claiming that the successful applicant had more time in rank and a clean disciplinary record (neither of which was actually true). The officer sued a number of officials in the St. Louis police department alleging race bias and conspiracy to discriminate. A jury returned a verdict in his favor, awarding actual damages of $200,000 and punitive damages of $100,000 against the director, $300,000 against the lieutenant colonel and $20,000 against the police chief. The district court rejected their post-trial motions, and the three individual defendants appealed. Testimony supports conspiracy claim. The Eighth Circuit refused to toss the verdicts against the academy director and lieutenant colonel on the officer’s Sec. 1983 conspiracy claims, rejecting their assertion that the jury unreasonably found that they reached an agreement to deprive him of his constitutional rights. In their view, the outgoing assistant director’s testimony only established that the lieutenant colonel told the director that he had decided to hire a black woman, not that the two agreed. However, although this was one reasonable interpretation, it was not the only reasonable interpretation. The outgoing assistant director’s testimony could also be interpreted to support the jury’s conclusion that the two superiors reached an agreement. Specifically, she testified that the director told her that the lieutenant colonel wanted a black female in the position, and that there was no way they were going to put a white male in that position. A reasonable jury could interpret her use of “they” to mean the director was referring to himself, the lieutenant colonel, and possibly the police chief. The director’s related statement to her that he was interested in the black female for the position because the lieutenant colonel wanted to hire a black woman could also support the inference that the two had reached an understanding to discriminate against the officer based on his race. Materially different working conditions. The appeals court also rejected the defendants’ assertion that the officer did not suffer an adverse employment action. They argued that since the assistant director position was not a promotion and carried no increase in pay, benefits, or rank, the officer experienced “purely subjective injuries and disappointment.” However, while the job may not have entailed a change in pay or rank, it arguably offered materially different working conditions. For instance, there was evidence that it was “high-profile,” involved significant supervisory duties, offered more contact with command rank officers, provided regular daytime hours and holidays off, and was significantly more likely to lead to a promotion to lieutenant. Moreover, the circumstances were analogous to cases in which the court had found that an unwanted transfer constituted an adverse employment action due to significant changes in supervisory duties, prestige, and promotion potential. Accordingly, the officer sufficiently established that he suffered an adverse employment action.

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