Investigation, threat of discipline for filing false EEOC report not retaliation

Affirming summary judgment in favor of a county sheriff’s department on the retaliation claims of several white officers who complained to the EEOC of racial harassment, the Second Circuit found that, on the facts of this case, which “may be a tad unusual,” the decision was proper. Though the officers filed an internal complaint that an African-American deputy asked them why they shaved their heads and started rumors that they were “skinheads,” they later claimed in their EEOC charge that he confronted them and accused them of being “skinheads.” While they established a prima facie case of retaliation, when taken in the context of a work environment tinged with racial tensions and in light of the employer’s duty to investigate and remedy racial harassment and their general duty not to file false reports, the court found that their claims failed as a matter of law (Cox v Onondaga County Sheriff’s Department, July 23, 2014, Winter, R). The five officers shaved their heads to show solidarity with a coworker who was undergoing chemotherapy. They filed an internal departmental complaint alleging racial harassment based on questions about their hair and rumors that they were “skinheads.” They singled out one officer, the African-American deputy, whom they alleged started the rumors. Their internal complaint did not indicate that the interactions had been accusatory or confrontational in nature. Nevertheless, they indicated that the rumors had created a “racially hostile and unsafe” workplace and put their families in danger. A captain investigated the allegations and found no evidence of harassment. (One of the officers withdrew as a complainant prior to its resolution.) First EEOC complaints. Subsequently, the remaining officers filed EEOC complaints, under oath, claiming that an African-American deputy had, in a face-to-face confrontation, accused them of being skinheads. They appeared to “all but expressly” reference the same deputy they had accused in the internal complaint. The employer filed a response with the EEOC, indicating that it found no merit in the harassment claim and noting that the entire investigation package had been submitted to its professional standards unit (PSU) for review. PSU investigation. The EEOC dismissed the complaints and the employer’s PSU continued its investigation. In addition to investigating the incidents, it also investigated the assistant chief’s allegation that the complaining officers engaged in misconduct by filing false reports and an allegation that the original investigator also made a false report regarding the investigation. Complicating the investigation was the fact that the African-American deputy had previously prevailed in a lawsuit against the department alleging a hostile work environment and retaliation. During the PSU investigation, the employees did not claim to have heard any officer say that they were skinheads, although they did assert that several officers made inquiries. Some officers testified that there were rumors that the deputy had started the rumors, but he denied having done so. He also stated during an interview that the matter was putting undue stress on him. Although the officers were told that disciplinary action was being considered against them because of the EEOC filings, they were not disciplined. Still, the PSU found a violation by two of the officers, and the captain who had initially investigated the matter was demoted. Second EEOC complaints and suit. The officers filed additional EEOC charges related to the PSU investigation and threats of false reports. The EEOC found evidence of retaliation and issued a right to sue notice. The officers filed suit, alleging a hostile work environment and retaliation. The lower court dismissed claims asserted under Sec. 1981, as well as their Title VII HWE claims. The remaining claims were later dismissed by grant of summary judgment — the court found that they failed to establish that they suffered an adverse action. The officers appealed. Threats of false report charges. It was “fairly obvious” to the appeals court that the officers made out a prima facie case of retaliation based on the threats of false report charges. However, the employer met its burden of providing a non-retaliatory reason for the threat based on the “unusual” facts of this case. Discipline-related statements about the charges were “completely reasonable in light of the record,” the court explained, because the officers had given materially inconsistent statements regarding the deputy’s behavior. Those statements ranged from describing him as asking about their shaved heads to accusing them of being skinheads. The latter accusation, based on the record, was “false, and seemingly intentionally so” and formed the basis of a misconduct complaint. Therefore, it was “in fact fair” to the officers to inform them of the possible results of the investigation. Complaints about deputy could be seen as harassment. The court was also influenced by the fact that the officers’ claims of racial harassment were made in the context of a department that had racial tensions and the fact that the claims, themselves, could reasonably be seen as racial harassment of the deputy. In fact, his testimony indicated that he felt harassed and the PSU investigation report noted that he felt “undue stress” because of it. Noting that the employer was under a duty to investigate potential racial harassment by lower-level employees, the court explained that it would be “anomalous to conclude that an employer is not allowed to investigate, with a view to discipline, false complaints of harassment that themselves might be viewed as intended as racial harassment.” Also supporting its decision was the fact that the employer had a policy regarding false reporting and that false charges could create credibility issues in other, unrelated cases. Where the officers had not presented any other evidence that the warning was intended to be retaliatory, they did not meet their ultimate burden of proof. Adverse actions? They also contended that multiple aspects of the PSU investigation amounted to adverse actions, including that: (1) the investigation was handled by the PSU, rather than internally; (2) the interview of the deputy was less confrontational; (3) the PSU was more concerned about the captain’s failings than the substance of their allegations; and (4) their request for a copy of the PSU report had been denied. These latter two alleged adverse actions the appeals court found to be frivolous. As for the questioning of the deputy, even assuming it was different, the court noted that there were “sound reasons” for the difference. His interview occurred after interviews with the officers had shown that no one had seen or heard him make the alleged remarks. As for the fact that the PSU conducted the investigation, the court noted that the written policy of the sheriff’s department authorized such an investigation at the chief’s discretion. Investigation was not retaliation. Regarding the fact that the employer conducted the PSU investigation in the first place, the court explained that under these circumstances, the investigation did not amount to an adverse employment action. It noted that such an investigation could amount to a “cognizable retaliatory action” in certain circumstances, i.e., when “carried out so as to result in a hostile work environment, constructive discharge, or other employment consequences of a negative nature, or if conducted in such an egregious manner as to ‘dissuade a reasonable worker from making or supporting a charge of discrimination;’” however, those circumstances did not apply here. “[W]ithout more,” the employer’s investigation of an employee’s EEOC complaint regarding racial harassment could not sustain a valid retaliation complaint. Indeed, although the employer was not required to do so by the relevant statutory provisions, such an investigation was clearly contemplated by the regulations. Employers must be allowed to inform themselves “of all facts relevant to an EEOC complaint” and are “sometimes asked to present their view of the facts.” Failure to do so might also be viewed as “evidence of an indifference to racial discrimination, if not acquiescence in it.” In fact, the court explained, “we can say with confidence that the law must give breathing room for such investigations to be carried out.”
By Brandi O. Brown, J.D.