By Erica Shelley Nelson and Kasey Burton
In Cox v. Onondaga Cnty. Sheriff’s Dep’t, the Second Circuit Court of Appeals upheld the dismissal of retaliation complaints by white Deputy Sheriffs (located in the state of New York). Even though the Deputies had set forth a prima facie case of retaliation, the Sheriff’s Department was able to demonstrate non-retaliatory reasons for its actions. The Deputies were unable to rebut the Department’s non-retaliatory explanations with evidence of pretext.
Plaintiffs shaved their heads in support of a fellow deputy with cancer whose hair fell out during chemotherapy treatment. The Deputies complained that they were repeatedly accused of being racist skinheads and were subjected to a racially hostile work environment. The Department conducted an internal investigation, which the Deputies alleged was inadequate, and the Deputies subsequently filed a complaint with the EEOC. The EEOC complaint included different, inconsistent factual information than what was provided to the Department. After a further investigation by the Professional Standards Unit (PSU) of the Department, the Deputies were warned about the consequences of filing a false report.
The Deputies asserted that the PSU investigation and the Department’s warning about filing false reports were retaliatory, and created a hostile work environment. The Deputies further argued that the Department’s actions, in instituting the PSU investigation to determine whether or not their claims were justified after the filing of their EEOC complaint, constituted unlawful retaliation. They also claimed that the warnings they received about the potential consequences of filing a false report constituted adverse actions taken against them.
The Department countered by arguing that the PSU investigation was a follow-up investigation in response to the Deputies’ claim that the initial informal investigation was inadequate. The warnings, the Department argument, were intended to be a reasonable warning about the potential outcome of the investigation.
The court held that the Department had not acted unlawfully, reasoning that the PSU investigation was necessary in the wake of the inadequate informal investigation. Moreover, an employer should fully educate themselves about situations involving allegations of racial harassment. Even though there were inconsistencies between the information provided to the Department and the information provided to the EEOC, the Department was simply attempting to learn the truth.
Law Enforcement officials are required to file reports accurately. The Department, therefore, has a greater interest in disciplining officers who do not take that obligation seriously than do most employers. The importance of this policy is underlined by the fact that a generally applicable, non-discriminatory, written policy for dealing with false reporting exists in the Department.
Editor’s Note: The court was clearly troubled by the Deputies’ inconsistent factual allegations in the internal Department complaint and the EEOC complaint, which likely influenced the decision in this matter. Nevertheless, this decision is a close one for purposes of summary judgment. There appear to be disputing facts as to pretext, especially in light of well-established case law that allows a plaintiff to rely on the same evidence that is used to establish a prima facie case of retaliation to establish pretext under the burden-shifting framework.
