42 U.S.C. § 2000e-2 · C relations

fact · supports Plaintiffs James E. Ginger, Paul E. Hustlar, Michael J. Lewis, Bernard D. Richardson, Mark W. Wood, Robert M. Wigton, and Roy Potter are white.

fact · supports Plaintiffs allege that the reorganization occurred because of a perception that Squad 2 was “too white” and because of a concern about how the media would react to a mostly white squad whose victims were mostly black.

fact · supports The analysis also revealed that Squad 2, which was involved in the majority of the bites, had a racial makeup that is predominantly white male — 6 out of 7 officers and the sergeant are white males.

rule In reverse discrimination cases, a plaintiff must do more than simply show that he is white in order to make out the first prong of a prima facie case of discrimination.

rule To demonstrate background circumstances, a plaintiff must provide evidence from one of the following categories: (1) evidence indicating that the employer “ ‘has some reason or inclination to discriminate invidiously against whites’ ”; or (2) evidence indicating that “ ‘there is something “fishy” about the facts of the case at hand that raises an inference of discrimination.’ ”

held The fact that concern about race relations plays into decision making at a macro level when developing policies on how to reorganize a police unit is not sufficient to support the suspicion that the Metropolitan Police Department is the unusual employer that discriminates against the majority.

fact · cuts-against On March 6, 2003, Cathy Lanier, Commander of the Special Operations Division, issued a memorandum announcing that the MPD was going to reorganize the Canine Unit so that all canine officers would work five eight-hour shifts per week instead of four ten-hour shifts and would rotate through different shifts instead of being assigned to a permanent day or night shift.

fact · cuts-against In this case, all officers in the Canine Unit were equally affected by the reorganization in that all officers were required to work rotating shifts regardless of race.

fact · supports They point to evidence that higher level police officials were concerned about the racial make up of the squads when they decided to undertake the reorganization and that those officials took race into account when realigning the squads.

rule an employee alleging discrimination based on changed conditions or terms of employment must make some sort of showing that the change affected him in some way different from other employees.

rule If every single employee in a racially diverse Canine Unit faces the same change in the terms and conditions of his employment after a reorganization, there are no “distinctions or differences in treatment.”

held Given that some sort of different treatment is at the heart of a discrimination claim, plaintiffs’ arguments fail.

fact · supports (1) a drawing placed on Squad 2’s locker that depicts members of the squad as KKK members and has written on the bottom “The Good 01’ Day’s”; (2) the words “KKK,” “Whitey Rules,” or “The Good 01 Boy Squad” written on the chalkboard; (3) receiving Nazi salutes from coworkers; (4) silent treatment by other officers;

fact · cuts-against Plaintiffs do not allege that any of these incidents were physically threatening, nor do they provide any information about the frequency with which these incidents occurred.

rule A workplace is hostile for purposes of Title VII only when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

held Whether considered in isolation or taken together, these incidents do not provide sufficiently severe or pervasive conduct to support a hostile work environment claim.

fact · cuts-against Moreover, plaintiffs do not dispute that none of the investigations into their conduct that occurred after the reorganization have resulted in discipline or suspension.

fact · cuts-against First, the allegation would only result in disciplinary action if Officer LaGrand were to receive two additional allegations at some point in the future.

fact · cuts-against Officer Wood was never even required to attend the class.

fact · cuts-against This investigation did not occur until over a year and a half after the plaintiffs filed their EEOC complaint and a year after the first complaint was filed in this Court.

rule The mere initiation of an investigation into a plaintiffs conduct is not an adverse employment action when it has no effect on the plaintiffs employment.

held None of these allegations are sufficient for plaintiffs’ retaliation claim to survive summary judgment.

fact · cuts-against The plaintiffs do not dispute that, following the reorganization, the Canine Unit suffered shortages of officers on the weekends.

fact · cuts-against Plaintiffs provide no evidence that they were forced to have days off in the middle of the week when other officers were not.

held Even assuming that requiring employees to take days off in the middle of the week when they previously had at least one weekend day off could be considered an adverse employment action sufficient to make out a prima facie case of retaliation, plaintiffs have failed to provide evidence that the Department’s legitimate, non-discriminatory reasons for assigning weekdays off were pretextual.

fact · supports There is no dispute that plaintiffs engaged in a statutorily protected activity when they filed a complaint with the EEOC on April 21, 2003.

fact · cuts-against Plaintiffs do not dispute that the decision to rotate shifts was announced on March 6, 2003, a month and a half before they filed their EEOC complaint.

rule In order to make out a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse action against him; and (3) there is a causal connection between the two.

held Plaintiffs cannot show a causal connection between the shift changes that the entire unit faced and the filing of their EEOC complaint.

fact · cuts-against In the March 20 altercation, Glenn admitted that he repeatedly told Faust to “step outside.” Faust did not make a similar threat to Glenn.

fact · cuts-against Furthermore, Faust retreated from the altercation to report it to management.

fact · supports According to Glenn, while he and Faust were pushing the trash box back and forth from their respective work areas, Faust said to him, “Boy, don’t put your box back on this line.”

fact · cuts-against Yet at no point during that discussion did Glenn alert Mirth to Faust allegedly calling him a “boy” or goading him to “go ahead, do it.”

rule To be “similarly situated,” the plaintiff must show that “the other employee’s acts were of ‘comparable seriousness.’ ”

held In sum, Raymours’ treatment of Faust cannot raise an inference of unlawful discrimination regarding Glenn’s termination because there are differentiating and mitigating circumstances that significantly distinguish both their conduct and Raymours’ treatment of them.

fact · supports He did not see any punches thrown, but observed from a distance some individuals “separating the two of them,” with Adams trying to “pursue” Copperthwaite and saying “if you ever do that again, I’ll snap your F’ing [sic] neck.”

fact · cuts-against Regarding the same supervisor argument, Adams and Copperthwaite were employed in the Delivery Department, while Glenn worked in the Operations Department.

fact · cuts-against Critically, the underlying misconduct in Glenn’s case was reported to Glenn’s direct supervisors, confirmed by more than one witness, and admitted to by Glenn himself.

fact · cuts-against Dye’s allegations notwithstanding, Adams’ alleged misconduct was not witnessed by Adams’ direct supervisors, was not reported to those supervisors, and was not admitted to by Adams or Copperthwaite.

held Therefore, the record is without sufficient evidence to demonstrate that Adams or Copperthwaite are “similarly situated” to Glenn for purposes of establishing the fourth element of his prima facie case.

fact · supports Buggs is less qualified than Turner, having only an M.S. degree, but she worked for only $11,800.00; Turner had earned $17,000.00 his last year at BSC, and claims that with salary increments he would have earned $19,000.00 had he been rehired. Buggs is black.

fact · cuts-against Although the percentage of white faculty members was smaller, it should be noted that two new whites were hired after Turner and Goetzman were fired.

fact · cuts-against The administration saw the efforts of Turner and Goetzman as disruptive and counterproductive; they were making waves in already troubled waters.

fact · cuts-against If certain other faculty members were treated differently, if some received extra assignments and as a corollary slightly more pay, it was due to their being more philosophically aligned with the administration.

held It is for the Court to determine whether the wedge driven between the two white professors and the predominantly black school was one of racial animus. The Court concludes that it was not.

held Therefore, it is concluded that plaintiffs have failed to establish a prima facie case of racial discrimination.

fact · supports 13. On October 21, 1980, Turner filed charges with the Equal Employment Opportunity Commission (EEOC) claiming that he had been discriminated against in terms of salary and other conditions of employment because of his race.

fact · supports 39. The senior administrators at BSC were aware that Turner and Goetzman had filed charges with the EEOC before Turner and Goetzman were discharged.

fact · cuts-against Goetzman’s problems with requisitions and departmental assignment were a result of poor communication among the BSC administration and possibly personal animus, but not retaliation for earlier charges.

held Although the firings followed closely on the heels of the bringing of charges, plaintiffs have failed to prove a causal connection.

held The EEOC charges came in the midst of a larger and more profound controversy, and though they may have added to the growing sense that Turner and Goetzman were troublemakers and not to be trusted, plaintiffs failed to prove that the filing of the charges was the cause of the school’s actions.

fact · supports For years Turner and Goetzman were two of the top professors at BSC. Their credentials relative to the other faculty members were outstanding, and they earned the respect and admiration of students, faculty, and administration.

fact · cuts-against Because of these and other tensions between administration and faculty, Turner and Goetzman became deeply involved in attempts to unionize the BSC faculty. The attempt failed, and thereafter relations between the two professors and the administration were strained.

fact · cuts-against At trial BSC failed to prove by objective evidence that these criticisms were well founded. However, at least as concerned President McLean, the conviction that Turner and Goetzman were not fulfilling their proper roles in the BSC community was sincere, even if highly subjective.

fact · cuts-against It is clear that after the contract and labor disputes of 1978-1979, Turner and Goetzman became aloof from that community and diverted from that goal.

rule Although both were clearly well qualified for the job, a question arises whether near the end of their tenures (used in the nontechnical sense of the word) at BSC, Turner and Goetzman were performing satisfactorily according to the legitimate expectations of BSC.

rule In determining whether Turner and Goetzman were satisfying BSC’s legitimate expectations, the Court is constrained to give great credence to President McLean’s articulation of what those expectations are.

held Thus, the Court is unable to conclude that, at the time they were fired, Turner and Goetzman were fulfilling the legitimate expectations of BSC, and is unable to infer from the evidence that race was a determining factor in the decision to discharge them.

fact · cuts-against This action was brought by plaintiff Alan Breech (“Breech”) against his former employer, APC, and the union of which he was a member during his employment with APC, the International Brotherhood of Electrical Workers, System Council U-19 (“Union”).

fact · cuts-against Breech has presented absolutely no evidence on this point; nor has he made specific arguments in his brief that the Union violated § 2000e-2(c)(3).

held Since the Union is not Breech’s employer, it cannot be liable under this specific cause of action; such an action may lie only against the employer, in this case APC.

fact · supports In his affidavit, Breech states: “There have been many employees over the years who have had many more than four days absent [sic] for personal reasons who were not terminated. Religious reasons are no different than other personal reasons.”

fact · cuts-against First, Breech does not state who the other employees are or the circumstances of them absences, i.e., whether the absences were irregular or cyclical.

fact · cuts-against This evidence does not support Breech’s contention that he was subjected to differential application of work or disciplinary rules: every one of the four employees mentioned was discharged.

rule Alternatively, Breech may satisfy the fourth requirement by showing that he was terminated while others having comparable or lesser qualifications and not of his religion were retained, or that he suffered from differential application of work or disciplinary rules.

rule To succeed under the theory of disparate treatment, Breech must show that his employer treated him differently than other employees because of his religious beliefs.

held Breech has failed to establish a prima facie case of discriminatory discharge under the disparate treatment theory.

fact · supports Breech met with Shelby Walker on November 26, 1990, at which time Breech informed Walker that he was no longer going to work between sundown Friday and sundown Saturday in observance of his religious beliefs.

fact · cuts-against As a result of the December 7th meeting, APC accommodated Breech by allowing him to make shift swaps which would result in the doubling of shifts.

fact · supports None of the Plant Control Operators who were scheduled with Fridays and Saturdays as their off days were willing to swap schedules with Breech.

fact · cuts-against Finally, APC offered Breech a reasonable accommodation — which Breech declined because he did not want to take a pay cut — when it repeatedly offered to allow him to take a different position, such as Helper or Assistant Control Operator.

rule To establish a prima facie ease of failure to accommodate, Breech must prove: (1) that he had a bona fide belief that compliance with an employment requirement would be contrary to his religious belief or practice, (2) that he informed his employer about the conflict, and (3) that he was discharged or penalized for failing to comply with the conflicting employment requirement.

rule Employer authorizations of such voluntary shift swaps constitute reasonable accommodations under Title VII.

held In this case, APC has demonstrated as a matter of law that it reasonably accommodated Breech’s religious beliefs.

fact · supports In June of 1990, Breech submitted an affidavit with the EEOC on behalf of another employee, Eric Young.

fact · cuts-against Upper management, which was responsible for Breech’s discharge, did not know about Breech’s submission of the affidavit.

fact · cuts-against In the present case, more than a year passed between the protected activity and the discharge.

rule (1) that he engaged in a statutorily protected expression, (2) that he suffered an adverse employment action, and (3) that there is a causal relation between the protected expression and the adverse action.

rule where a substantial period of time has elapsed between the two events — engagement in the protected activity and the adverse employment action — the causal connection is less likely to exist absent evidence demonstrating a connection between the two events.

held he has not demonstrated a causal link between his filing of the affidavit and his discharge.

fact · cuts-against Because the city needed female officers to perform certain duties, related, for example, to female prisoners, and because there were no women high enough on the integrated list to be hired, the city sought and received approval from the Massachusetts Commission Against Discrimination to hire from a list of exclusively female applicants.

fact · cuts-against The most recent integrated list was therefore separated and the city hired the top two women on the women-only list who also met the 5 feet 6 inches height requirement.

fact · cuts-against Without the height requirement, the city would still have hired only two women. The only difference is that plaintiff would have been one of them.

rule We remain unpersuaded that a hiring barrier can have a disparate impact on a protected group when competition for the job is only among members of that protected group.

held On these facts, the height requirement cannot be viewed as having a disparate effect on women. In the absence of a discriminatory effect, Teal simply does not apply.

held Plaintiff simply failed to make it over the initial hurdle of demonstrating that the challenged barrier had a discriminatory effect on women.

fact · supports Upon her return, Dr. Palma-teer increased Dr. Hiatt’s weekly clinical hours from 22 to 24 hours.

fact · supports She also required Dr. Hiatt to provide a doctor’s note to justify non-Family Medical Leave Act (“FMLA”) sick leave, obtain permission before “blocking her schedule” (i.e., make certain blocks of time in her calendar unavailable for clinical appointments), and make up for missed clinical time.

fact · supports On May 30, 2014, Dr. Hiatt submitted a letter of resignation, in which she complained of retaliation for filing her internal EEO and EEOC complaints.

rule “To establish constructive discharge, a plaintiff must show that she had no other choice but to quit.”

held The working conditions she describes—such as being required to work two extra hours per week, turn in timely case notes, and justify non-FMLA sick time—do not amount to an objectively intolerable working environment.

fact · supports She suggests Ross Artwohl and Kimberly Mercer as relevant comparators because, like she did, they reported to Dr. Palmateer.

fact · supports Dr. Hiatt also proposes Dr. Fogle and Dr. Mathewson because Dr. Palmateer supervised them and the same professional standards applied to them as to Dr. Hiatt.

fact · cuts-against But because Dr. Hiatt supervised these two individuals, they were not in positions comparable to Dr. Hiatt.

rule An employee is similarly situated to the plaintiff if the employee shares the same supervisor, is subject to the same standards governing performance evaluation and discipline, and has similar relevant employment circumstances, such as work history.

held Dr. Hiatt has failed to identify any other similarly situated employees who allegedly received differential treatment.

fact · supports On February 27, 2013, before Dr. Hiatt chose an option, her attorney sent DU a letter claiming DU’s request for Dr. Hiatt to leave her position as Training Director amounted to sex discrimination.

fact · cuts-against Dr. Kent and Dr. Palmateer initially gave Dr. Hiatt the reasons for her demotion in their February 22, 2013 meeting.

rule For retaliation claims, “a plaintiff must show that a reasonable employee would .have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

rule DU could not retaliate for Dr. Hiatt’s protected activity until she had engaged in such activity.

held Dr. Hiatt cannot, therefore, create a triable issue that DU’s reasons for any adverse employment actions were pretextual for sex discrimination or retaliation.

fact · cuts-against In Dr. Kent’s view, Dr. Asher’s recommendation was equivocal.

fact · supports She pointed to the October 2013 email from Associate Provost for Student Life Patricia Helton, which called on Dr. Hiatt to have “better awareness about the power she holds” and “demonstrate[ ] appropriate professional boundaries in all contexts” before she could resume supervision.

rule “Evidence that the employer should not have made the [adverse employment] decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer’s explanation is unworthy of credibility.”

held Dr. Hiatt has not shown DU’s reasons for refusing to reinstate her supervisory duties were pretextual for retaliation or discrimination.

fact · cuts-against When Dr. Kent and Dr. Palmateer met with Dr. Hiatt on February 22, 2013, and presented the three options to her, the reasons they stated then are the same reasons that DU provides in this litigation.

fact · cuts-against Dr. Kent presented both Dr. Hiatt’s and Dr. Fogle’s timelines of events to Dr. Philinda Hutchings—the Dean of the Midwestern School of Professional Psychology—and Dr. Bill Bracker—the former Director of the Nova Southeastern University Consortium Internship.

fact · cuts-against Consistent with Smothers, DU gave Dr. Hiatt multiple opportunities to explain her version of events.

fact · cuts-against Indeed, Dr. Hiatt admitted in her deposition that supervisees even had a name for it—getting “Tawny-ed.”

rule “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”

held Dr. Hiatt has not shown that DU’s reasons for removing her from her position as Training Director and demoting her to Outreach Coordinator were dishonest or made in bad faith, Swackhammer, 498 F.3d at 1169-70, or were “so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief,” Johnson, 594 F.3d at 1211 (brackets and quotations omitted).

fact · supports The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters.

fact · supports Ude stated that under federal law, “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies — even . . . race-conscious remedies.”

rule We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

rule The problem for respondents is that a prima facie case of disparate-impact liability — essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446 (1982), and nothing more — is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.

held Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.