By: Loyd Willaford & Sarah Burke
In Koenig v. City of New Haven, a disabled police officer alleged he had been discriminated against after he was suspended with pay following racist and sexist remarks he allegedly made. The city argued that the suspension was not an adverse employment action and, even if it were, it was not done because of the officer’s disability. A United States District Court in Connecticut found the suspension was an adverse action, but that there was no evidence to show that the City suspended the officer because of his disability. The Court dismissed the officer’s claims.
Jason Koenig was employed as a sergeant with the City of New Haven when he was involved in a car accident during work. After the accident, Koenig took leave for medical treatment but eventually returned to work a few months later. About a year later, an investigation was conducted against Koenig after it was reported he had made sexually explicit and racially adverse comments. Koenig was suspended and the suspension was upheld, but reduced, by an arbitrator. Following this, Koenig passed an exam to become a lieutenant but never received a promotion.
Based on this, Koenig sued the city and alleged he had been discriminated and retaliated against because of his disability. The City acknowledged that Koenig had been suspended and had not been promoted, but alleged that any adverse employment action against Koenig was unrelated to his disability.
First, the district court held that Koenig had pointed to an adverse employment action:
[the] Second Circuit has held that even a one-week suspension constitutes adverse employment action, even where the employee later receives full back pay.
The district court did not believe Koenig had demonstrated that the adverse action was because of his disability. The only evidence Koenig had presented to the district court was a document he had authored that said he had done nothing wrong. However, the district court held this did not show the city’s reason for suspending Koenig—that he had made racist and sexist remarks—was untrue. In light of this, the district court granted the city summary judgment and dismissed Koenig’s claims.
This case illustrates how important is for plaintiffs to have evidence that the alleged non-discriminatory reason an employer gives for an adverse employment action is pretextual, or not believable. This evidence must be something beyond the employee’s subjective belief that the employer is illegally discriminating. This will normally take the form of inconsistent statements by the employer about the reason for the discipline, evidence that the employee did not commit the act the employer is relying for the discipline, or evidence that the employer treated other employees in a similar situation differently than the plaintiff.
Here, Koenig attempted to argue that inconsistent witness accounts of the alleged statement meant that the employer’s reason of the suspension was inconsistent. The Court correctly noted that the witness statements had nothing to do with the City’s reason for the discipline. Better evidence to show pretext would have been evidence that other officers who made similar statements were not disciplined or received less than the week suspension Koenig received. In the absence, any evidence that the reason the City gave for disciplining Koenig was not the real reason for the discipline, the Court dismissed Koenig’s lawsuit.
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