According to the Court’s opinion, the plaintiff regularly criticized over a five-year period the perceived immorality of his co-workers and the administration of his department and in 2014 filed an OSHA complaint about neglected safety issues. His co-worker responded with disrespectful comments about his faith and his supervisor allegedly stated that he was tired of the plaintiff’s complaints. In 2015, his supervisor reported that the plaintiff had overreported his working hours and the plaintiff claimed that it had been an honest mistake, but he was suspended pending investigation. In meeting with the union during the investigation, the city also added an allegation that the plaintiff had claimed to work for two different employers during the same hours. Taking the union’s advice to assert his Fifth Amendment rights, the employer immediately terminated the plaintiff for refusing to respond to the new allegation. At that point, a union dispute led to new union officers who decided to not proceed with the plaintiff’s grievances. The EEOC dismissed his charge and this litigation ensued.
The trial court dismissed the First Amendment retaliation claim on the pleadings on the basis that they were conclusory and failed to alleged specific facts to support such a claim. The Court found sufficient factual allegations in the complaint to support a retaliation claim despite the passage of a year between the OSHA complaint had been filed and the plaintiff’s firing and the plaintiff had been complaining for five years without retaliation.
While a short passage of time between the protected speech and the adverse action sometimes helps a retaliation claim, the opposite is not necessarily true. Our conventional view is to be skeptical that timelines alone prove anything. [The supervisor] does not point to any case in which the mere passage of time dooms a retaliation claim. More to the point, [the plaintiff] has more than a timeline, short or long, to show causation. He alleges that [the supervisor] expressed frustration with his complaints—“he was tired of [the plaintiff’s] complaints”—and knew that [the plaintiff] reported the firefighters to a government agency for their misbehavior.
When the employer pointed out that similar claims were dismissed
on summary judgment based on the actual evidence (and plaintiff’s lack of
knowledge to prove his case), the Court refused to consider evidence produced
during discovery to evaluate the dismissal of a claim at the pleading stage
(even though it seems obvious that summary judgment will be granted to the
employer on this claim as it was for the other claims). It also rejected an implied procedural wavier
argument.
The Court affirmed summary judgment on the remaining claims. His due process claims were rejected because he had several state-provided post-termination proceedings available to him with state agencies and courts that he never pursued concerning the irregularity and perceived mishandling of his union grievances.
Similarly, his religious retaliation claims were dismissed on the grounds that he failed to produce evidence of pretext that another firefighter had similarly falsified his time sheet without being fired. There was nothing in the
record that establishes anyone ever reported [the co-worker] for double-dipping or that any city employee even believed [the co-worker] had overreported his hours. The closest [the plaintiff] comes to offering something concrete on the second point is testimony from a payroll director who had to determine whether [the co-worker] should be paid for time he spent on military leave. The payroll director admitted that [the co-worker] should not have been paid while on leave, but the director never stated [the co-worker] had done anything wrong.
The Court rejected the plaintiff’s allegations that the co-worker was never similarly investigated because the supervisor conspired with the co-worker to inflate his time sheets. The plaintiff testified that the co-worker had full time-sheets for days when he was on military leave and the supervisor reviewed all of the time sheets. The Court found it dispositive that the plaintiff never saw the co-worker complete those time sheets and did not know how the logs were processed and never asked questions about it.
Nonetheless, the Court rejected some of the employer’s arguments about how the plaintiff “started it” by openly criticizing his co-workers morality (regarding, among other things, pornography and extra-marital affairs, etc.).
Employees are free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat. . . . Employees are no less free to root legitimate criticisms about the workplace in their faith than in any other aspects of their worldview. For many people of faith, their religion is not an abstraction. It has consequences for how they behave and may require them to be witnesses and examples for their faith. That reality does not permit differential treatment of them because they criticize behavior on moral grounds stemming from religious convictions as opposed to moral grounds stemming from secular convictions.
The Court also affirmed dismissal of the hostile work environment claim on the grounds that the co-worker comments were not severe or pervasive enough.
“[T]easing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” . . . . All [the plaintiff] can show are periodic rude comments from his co-workers, which generally do not suffice. . . . . the reality remains that Title VII does not serve as a “general civility code for the American workplace.”
[The plaintiff] has not presented sufficient evidence that these remarks unreasonably interfered with his work performance. [He] admits that he never received fewer assignments or worse assignments because of his religious beliefs. Nor did he ever stop going on fire runs because of the way his colleagues treated him. [He] never complained to [his supervisor], his supervisor, about the harassment, even though he was plenty willing to tell the leaders of the station about other conduct of the firefighters—namely their intimate affairs. [His] confidante at the station, Eric Hollowell, also a religious man, heard similar comments directed at him but interpreted them as a joke. Hollowell noted, too, that the firefighters had a practice of saying grace together before meals, a practice that hardly conveys hostility based on faith. While Hudson’s colleagues at times did not extend to him the civility and respect that should be the norm in the workplace, that doesn’t mean their conduct violated Title VII.
The other judges did not agree with everything. One would have affirmed dismissal of the First Amendment retaliation claim. Another took issue with dismissal of the hostile work environment claim on the grounds that the evidence showed the comments were sufficiently severe and pervasive to create a jury question.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
