Discriminatory Discipline Matthew P Dolan Attorney Public Agency
Discriminatory Discipline Matthew P. Dolan Attorney Public Agency Training Council
The Just Cause Doctrine • Did the employee have forewarning of the possible disciplinary consequences of his/her conduct? • Was the management rule or regulation reasonably related to the orderly, efficient and safe operation of the business? • Did management make an effort to discover whether the employee did in fact violate the rule before administering discipline to the employee? • Did management conduct a fair and objective investigation? • Did management, during this investigation, obtain substantial evidence or proof that the employee was guilty of the charge? • Has management applied its rules and regulations and penalties evenly and without discrimination? • Was the degree of discipline administered reasonably related to the seriousness of the conduct and the record of the employee with the company? See In re Enterprise Wire Co. , 46 L. A. 359 (1966). An entire treatise on discipline and discharge is structured around Arbitrator Daugherty's seven tests. See Koven and Smith, Just Cause: The Seven Tests (May Rev. 3 d ed. 2006).
Significance of the Doctrine Across Different Labor Environments • Union environments with binding arbitration. • Departments with municipal, county or state “just cause” standards. • Departments with municipal, county or state civil service review boards. • Any agency covered under federal and state employment discrimination law.
Arbitration/Merit Boards/ Personnel Review Boards • Emphasis on Past Practice in determining Just Cause/Reasonableness of discipline
Federal Employment Discrimination Law Title VII of the Civil Rights Act of 1964 Americans with Disabilities Act (ADA) Age Discrimination in Employment Act (ADEA) Uniformed Services Employment and Reemployment Act (USERRA) *Not an exhaustive list of relevant statutes
Retaliation Protection Under Federal Employment Law • Under Title VII, an employer commits an "unlawful employment practice" when he discriminates against an employee on the basis of her gender, or retaliates against her for opposing unlawful discrimination. 42 U. S. C. § 2000 e-2(a) and 3(a). • Similar Retaliation Provisions in ADA, ADEA and State-Equivalent Statutes
Retaliation Analysis To avoid summary judgment on a retaliation claim, plaintiff must produce evidence from which a jury could reasonably conclude: (1) that she engaged in a statutorily protected expression; (2) that she suffered an adverse action at the hands of her employer; and (3) there was a causal link between the two. See Fine v. Ryan Int'l Airlines, 305 F. 3 d 746 (7 th. Cir. , 2002); See Dey v. Colt Constr. & Dev. Co. , 28 F. 3 d 146 (7 th. Cir. , 1994)
No “Smoking Gun” Evidence Required
Summary Judgment • Standard: Summary judgment is appropriate if the record shows that there is “no genuine issue as to any material fact and [that] the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). • Without compelling documentation, conflicting stories go to the finder of fact. • If it’s not in writing, it didn’t happen. • Agency Motions for Summary Judgment tend to be unsuccessful where there is the appearance of discrimination.
Perez v. Texas Dept. of Criminal Justice • P, Hispanic-American lieutenant, arrested and charged with felony assault for off -duty stabbing. • P dismissed—in keeping with department policy re: agency rules of conduct. • P brought Title VII racial discrimination claim, based on his assertion that similarly-situated non-Hispanic officers had been treated less harshly. • Non-Hispanic lieutenant was arrested for involuntary manslaughter, driving under the influence when he struck another vehicle, killing the driver NOT terminated. • Court’s Holding: a rational jury could return a verdict in favor Perez. See Perez v. Texas Dept. of Criminal Justice, 395 F. 3 d 206 (5 th Cir. 2004)
Reasonable Policies Must Be Consistently Applied • In work-rule violation cases, a prima facie case of pretext can be established by showing that, even though the employee did violate, employees who engaged in similar acts were not punished similarly. • Applies to varying levels of importance. • Employee behavior/performance is not evaluated in isolation.
Supreme Court Guidance re: Discriminatory Discipline “While [D] may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be applied, alike to members of all races, and Title VII is violated if, as petitioners alleged, it was not. ” See Mc. Donald v. Santa Fe Trail Transp. Co. , 427 U. S. 273 (U. S. 1976)
Questions of Discrimination are Case-Specific and Relative • Generally, no employee action is in and of itself worthy of dismissal, as in Perez. • Employee behavior/performance is not evaluated in isolation. • Zero tolerance MUST mean ZERO tolerance—good faith exceptions can lead to the appearance of discrimination. • Assume that no two employees are indistinguishable.
Assume That No Two Officers are Indistinguishable……. Focus on Articulating How Underlying Violations are Distinguishable
English v. Colo. Dep't of Corrections • P was fired from his job as a corrections officer after an investigation of charges that he had sexual relations in the correctional facility with an inmate. • P claimed racial discrimination—citing other, non-African American corrections officers who had allegedly received preferential treatment in disciplinary decisions. • Court granted the D motion for summary judgment—determining that a white corrections officer who had an inappropriate relationship which did not involve sexual relations was not guilty of same or substantially similar violation. • Lastly, the Court found for D agency in spite of P’s allegations that racist comments by co-workers were tolerated by management. See English v. Colo. Dep't of Corrections, 248 F. 3 d 1002, (10 th Cir. 2001)
Importance of Documenting Performance • Documentation of performance issues, coaching and discipline prevents causal link between protected activity/membership in a protected class and materially adverse action. • Documentation of these issues also prevents the appearance of arbitrary or unjustly disparate discipline. • Without convincing documentation, conflicting stories go to the finder of fact. • If it’s not in writing, it didn’t happen.
Ballance v. City of Springfield • P officer was terminated by the Chief of Police following a department finding that he committed a domestic battery upon his wife. • P, who is white, claims racial discrimination—pointing to the fact that a black officer was not terminated following a similar department finding of domestic battery. • Court granted D’s motion for summary judgment—notably citing P’s “lengthy and egregious disciplinary record” with the department which distinguished him from the other officer in question. See Ballance v. City of Springfield, 424 F. 3 d 614 (7 th Cir. 2005)
The Role of Progressive Discipline
Shoate v. City of Beloit Police Dep't. • Department’s pattern of frequent documentation provided support in agency’s adverse employment decision. • While true that other officers were reprimanded, none rose to the P’s level in terms of frequency and severity. • Ct: “[D] was entitled to take into consideration [P’s] past rule violations when deciding on appropriate discipline. To the extent that [P] had failed to respond to lesser punishment in the past, it was reasonable for [D] to give [P] progressively harsher penalties in an effort to persuade him to improve his job performance. ” See Shoate v. City of Beloit Police Dep’t, 2004 U. S. Dist. LEXIS 3922 (W. D. WI. 2004)
Gronefeld v. City of Normandy • P police officer employed with agency for 2 ½ years, beginning February of 2002. • P was absent from required service training on April 25, 2003, and was late for work on April 7, 2003, September 11, 2003, and December 18, 2003. On January 5, 2004, P was suspended for 12 working hours because of her tardiness. • P was subsequently late for work on May 1, 2004, and May 16, 2004. P was suspended for 60 hours without pay and placed on probation for six months. P was warned in writing that her employment was in “serious jeopardy” due to tardiness issues. • P was late to work on September 4, 2004. Her Sergeant reported that P arrived at work late, disheveled, and with a faint smell of alcohol on her breath. • On October 6, 2004, P terminated because of her tardiness, and because previous progressive discipline did not work. • P alleged termination was due to gender discrimination. • D Agency’s Motion for Summary Judgment Granted. See Gronefeld v. City of Normandy, 2007 U. S. Dist. LEXIS 35474 (E. D. Mo. 2007)
“Resetting the Clock” on Policy As of January 1, 2015 the ______ Department’s policy with regard to _____ infractions shall be _____. Although the department has addressed _____ infractions in the past in a different manner, this past treatment will have no bearing on the type of discipline which will be utilized to address ______ infractions moving forward. • Effectively communicate policy changes to employees (in-service training, etc. )
The Importance of “Time Out” Moments • Many instances of disparate discipline result from agency leaders’ rush to punish. • The rush to address unacceptable behavior immediately is an understandable temptation, but careful deliberation should always be employed prior to levying discipline: • --Have we as an organization ever dealt with this type of a policy violation? • --If so, how were past cases handled? • --If we are contemplating more severe discipline that was given in the past, are there aggravating circumstances here that we can articulate to justify harsher treatment?
Can Awareness of the Liability Issues in This Area Actually Make Your Agency Better?
Can Sound Legal Advice Contradict Good Leadership?
Disclaimer • Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This presentation is not intended to constitute legal advice on a specific case. Rather it is for informational purposes.
Thank You! Matthew P. Dolan Attorney Public Agency Training Council 800 -365 -0119 mdolan@patc. com
Upcoming In-Class Training Supervising the Toxic Officer Abington, PA 1/12/2015— 1/13/2015 Las Vegas, NV 2/24/2015— 2/25/2015 Supervisor Liability Boise, ID 1/28/2015— 1/29/2015 Lynchburg, VA 2/3/2015— 2/4/2015 http: //www. patc. com/training/schedule. php
- Slides: 33