By Lorene D. Park, J.D. Affirming summary judgment on a former police chief’s retaliation claims, the Eighth Circuit noted that he agreed that his failure to keep firearms certifications updated and to return dashboard cameras on request could have shaken his boss’s faith in him and led to his firing. And though he alleged that the mayor and his friends made racist statements, he did not link those statements in any way to his employment, or even show that the remarks were made at the time he tried to get an African-American subordinate promoted or at the time he was fired (Hutton v. Maynard, February 3, 2016, Kelly, J.). Neglect of duty? The employee, a white man, was the city’s police chief. In 2009, he began preaching as a Baptist minister on his days off. In 2012, local residents complained about a community meeting that he led, which they thought had too much religious emphasis and felt like a church service. The mayor asked him to focus on city matters during community meetings and while on duty. Meanwhile, the employee also had some conflict with the city over his failure to ensure that his officers held certain firearms certifications. Other performance issues included exceeding the city’s budget when buying dashboard cameras; failing to repair a dent in a department-issued vehicle when asked to do so; and failing to return a camera as instructed. The mayor described the last incident as “the straw that broke the camel’s back.” Race issues. The day before he was fired, the employee told the mayor that he wanted to promote an African-American staff member. The intended position was consolidated with another, and eventually given to that staff member. Nonetheless, the employee claimed that the mayor and his friends on city council openly displayed racial animus toward African-Americans, referring to them as “those people” and “the people from the other side of the tracks.” One of the mayor’s friends also allegedly used the “n-word” and the mayor took no offense. No reinstatement. After he was fired, the employee appealed the decision to the city council, requesting reinstatement. At the council meeting, no one, not even the employee, mentioned his attempt to promote the African-American staff member or his religious activities. Instead, the council considered two terminable offenses—the firearms certification and camera issues—along with the mayor’s view that the employee neglected some of his job duties. He was not reinstated. Lawsuit. The employee filed suit alleging age discrimination and retaliation for his religious activities and because he tried to have an African-American staff member promoted. The district court granted summary judgment to the defendants and the employee appealed only as to his Title VII retaliation claim concerning the race issue. Retaliation claim fails. The district court determined that evidence of the mayor and his friends referring to African-American people with derogatory language did not constitute direct evidence of discriminatory animus because the employee provided no context or timeframe in which the remarks were made. Moreover, he did not demonstrate any specific link between the alleged remarks and his termination. Agreeing with the lower court and affirming, the Eighth Circuit noted that the employee provided no additional direct evidence on appeal. No shifting rationales. Under the indirect method, assuming the employee established a prima facie case, he did not dispute that the defendants offered legitimate, nonretaliatory reasons for his termination, and he failed to show pretext. Though one of the city council members, after agreeing with the termination decision, stated that she felt the mayor may have misled her regarding the extent of the employee’s problems as police chief, the employee did not allege that the mayor offered shifting reasons for termination over time. Even the employee agreed that the firearms certification and camera issues—two key reasons for termination provided by the mayor—could have shaken his boss’s faith in him and led to his firing. He also conceded that community members had complained about his job performance. No comparators. Moreover, the employee failed to offer anything more than the names of proposed comparators who he believed were treated better than he was. He provided no explanation as to why or how they were similarly situated. No link to racist comments. Finally, while a decisionmaker’s general discriminatory attitude as evidenced by derogatory comments might, in some circumstances, be evidence of pretext, the employee in this case did not allege that the offensive statements were made in connection with any part of his employment or in connection with city business. Nor did he claim the statements were made around the time of his decision to promote the African-American staff member or the time of his termination. While freestanding racist comments are “deplorable,” noted the court, the comments here did not show that the employee’s termination was pretext for retaliation.
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