By: Loyd Willaford and Sarah Burke
In Elmore v. Washington Metro Area Transit Authority, a former District of Columbia female K-9 unit police officer was found to have a triable retaliation claim after she was injured during a dog training exercise. The City argued that every officer was required to participate in the training but the District Court found that because the officer was injured and her supervisor continued to require the officer to participate, the officer could pursue her lawsuit.
Linda Elmore began working for Washington Metro as a police officer in 2002 and was ultimately promoted to the K-9 unit. In 2011, Elmore filed an EEOC complaint against her supervisor and others on the force alleging age and gender discrimination. An investigation was conducted but it was ultimately found that while no gender discrimination had occurred, there were still issues in the K-9 unit. Elmore alleged the investigation and its aftermath only heightened tensions between her and her supervisor and Elmore complained to another officer that she believed her supervisor and others “were planning to injure” her.
Elmore did eventually get injured after participating in a “long-bite” exercise where K-9 unit dogs were trained to apprehend fleeing suspects. All officers were required to participate as decoys but during Elmore’s turn as a decoy she was knocked to the ground repeatedly and suffered neck and back injuries that caused her to miss over six months of work. Further, her supervisor did not allow another officer to step in for her and continued to release the dog even after Elmore lost consciousness.
Elmore argued that her treatment and injuries during the K-9 training exercise were inflicted because she is a woman and because she previously had filed a gender discrimination complaint against her fellow officers. Washington Metro argued that all K-9 officers, both male and female, serve as decoys to train the unit’s police dogs and while Elmore’s injuries were unfortunate, they were not done because of discriminatory animus.
In the context of an unlawful retaliation claim, ‘a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action ‘because’ the employee opposed the practice.’
The District Court found Elmore could satisfy this standard because she had previously filed a claim, her supervisor was aware of the previous claim, and she had been injured during the trainings. The Court believed that:
…. a reasonable jury could infer that the maltreatment Elmore suffered during the long-bite training—and her resulting injuries—were in retaliation for her earlier protected activity.
This case illustrates the limits of what courts have considered to be an “adverse employment action.” A person making a discrimination claim has to show that the employer changed the conditions of employment for the worse based on some illegal reason. Normally that will mean loss of a job, loss of pay, or some other tangible loss. Here, however, the Court ruled that a jury could find that requiring Elmore to continue to be a decoy even after she was injured was an adverse action based on her prior EEOC. It helped Elmore that the definition of adverse action is slightly broader in the retaliation context. It includes actions that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Under this definition the Court ruled that Elmore’s claims could go to a jury.
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