This site will be taking a break between June 12 and June 27. Wish I had something better to write about on my way out than a dismal summary judgment case from the Eighth Circuit, which is improved only slightly by a thoughtful dissent by Judge Colloton.
In Hervey v. City of Koochiching, No. 06-3891 (8th Cir. June 9, 2008), the plaintiff, a female jail administrator, brought sex discrimination, hostile work environment and retaliation claims, the last of which garners the most attention in the opinion. After a series a setbacks with her male managers (Undersheriff Matsin and Sheriff Nelson, also defendants in the case) — which culminated in a mixed performance evaluation — Hervey determined on Tuesday, February 10, 2004 to file a complaint against the village with the state civil rights agency. She was absent from work that Tuesday, and there was a dispute about whether the plaintiff timely called in her absence.
Matsin called her into his office on Thursday, February 12, to discuss the situation, only to learn about the charge:
“Hervey then told Mastin that she had filed a complaint with the Minnesota Department of Human Services. Mastin told Hervey that when the sheriff returned to the office, the three of them would meet, and Mastin told her he would ‘suggest to the sheriff that you report to work from now on in brown because you are no longer a supervisor.'”
The next day (Friday, February 13), Matsin submitted his recommendation that Hervey “continue as Jail Administrator with duties to be reviewed and discussed but wear the same uniform as the other correctional officers.” Mastin stated that Hervey had “many admirable abilities,” but that “her leadership and judgment” were inadequate. Two weeks later, plaintiff was placed on warning about “for failing properly to gain approval for leave, and being untruthful with her supervisor about a request for time off.” A year later, she suffered suspensions for insubordination.
Affirming summary judgment, the majority held that record could support only one inference: that the disciplinary process against Hervey began before the managers knew about the protected activity (the civil rights charge), and therefore the plaintiff’s activity could not have motivated what followed:
“Assuming for the sake of argument that Mastin’s statement that he would make such a recommendation is a materially adverse action, but cf. Somoza v. Univ. of Denver, 513 F.3d 1206, 1215 (10th Cir. 2008), or that Mastin unilaterally demoted Hervey in the meeting while advising her that his recommendation to the sheriff would address only what color shirt she should wear, the action was a logical consequence of Hervey’s pre-existing disciplinary problems, and Hervey cannot create a submissible case of unlawful retaliation by interjecting her announcement of a discrimination claim in the middle of a previously scheduled meeting to discuss her absences from work.”
The panel majority argued that if a civil-rights plaintiff could get a retaliation trial based entirely on temporal proximity, then unscrupulous employees would be encouraged to file protective charges ahead of anticipated disciplinary actions to fend off punishment.
But Judge Colloton, in dissent, found that a jury could draw a different inference from the record: that “no evidence cited by the defendants supports their argument that Mastin planned on disciplining Hervey for improperly taking leave before Hervey told Mastin that she would be filing a complaint against him. The district court states that ‘Mastin informed Hervey of his intention to discipline her before Hervey informed Mastin of her intention to file a complaint.’ However, the exhibit that the district court cites for support does not support this statement. The exhibit merely states that Mastin said, ‘Well, stop in my office when you come to work tomorrow . . . [t]o discuss this issue.’ Culberth Decl. Ex. 89 at 16. All Mastin told Hervey on February 11 was that “when [Hervey] came into work the next day, he wanted to talk to [Hervey.]” Hervey App. 34 (emphasis added). Mastin said nothing about discipline or a demotion.”
The dissent also addressed the spector of dishonest employees stealing a march on their supervisors:
“In particular, the majority emphasizes the need to protect employers from unscrupulous employees who interject allegations of discrimination or retaliation as shields to ‘insulate themselves from discipline’ after becoming cognizant of their disfavored status in the workplace. Ante at 15. I note two difficulties with undue reliance on this line of reasoning. First, while it is important to point out that this strongly voiced and commonly repeated suspicion of employees’ motives may be an important consideration, it is also important to point out that this characterization of employees is difficult to support at the summary judgment stage. It requires courts to make strong adverse inferences about the employees’ states of mind. In general, I do not believe it is appropriate, at the summary judgment stage, to ascribe such manipulative motives to employees. Second, just as an instance of protected conduct by an employee should not be viewed as an impenetrable shield against future discipline by an employer, the existence of a blemished work record, or an employee’s pre-existing status as a less-than-ideal-employee, should not be used as a rug under which employers and courts may sweep claims of retaliation. Our laws against discrimination and retaliation are not in place merely to protect employees with otherwise unblemished records, and we must guard against the establishment of standards that deprive all but the most deserving employees of jury trials. While I share the majority’s concern that some employees may attempt to ‘work the system’ by taking protected actions when they believe discipline is imminent, we should not support granting summary judgment based in large part on suspicions of employees’ motives.”