By: Loyd Willaford and Matt Baker
In Volker v. County of Nassau, a County fired an Affirmative Action Specialist after alleging he engaged in activity that the County said was outside the scope of his employment. He had submitted a report to his employer, a Sheriff’s Department, detailing the work that the Department needed to do in order to comply with Affirmative Action guidelines. The Department argued that in making the report, he had violated several policies, including interviewing employees without representation present, and proceeded to fire him. He then sued the Department, alleging that his termination had been in retaliation for protected activity. The Department moved for summary judgement, which the U.S. Federal Court for the Eastern District of New York denied.
Joseph A. Volker was an Affirmative Action Specialist for the Nassau County Sherriff’s Department. His role was to ensure that the Department was meeting Affirmative Action and other employment goals. Volker believed that his role included conducting interviews with employees and making policy recommendations to the Department based on his findings. The Department did not view this as his role, and insisted that he stop conducting the interviews without a Department representative present. In 2009, Volker prepared a report which concluded that the Department needed significant work to comply with Affirmative Action guidelines.
Volker was issued a notice of personnel action which stripped him of his independence and his role as Affirmative Action Specialist. Afterwards, as he continued conducting unauthorized interviews, he was fired. He brought suit against the Department, arguing that his activities in interviewing and forming policy suggestions were in furtherance of Affirmative Action goals and protected by Title VII. The Department disagreed and moved for summary judgement.
The District Court held that, because Volker believed he was opposing discrimination with his reports, his conduct was protected by Title VII:
When opposing discrimination, the Plaintiff only needs a good faith belief that the conduct was prohibited by Title VII. Said differently, the conduct which the Plaintiff is opposing does not need to be actually prohibited by Title VII, he must merely believe that it is prohibited.
The other excuses Department gave for Volker’s termination has “weaknesses, inconsistencies, and contradictions” according to the Court. Therefore, a reasonable juror could find them implausible. In addition, the County gave no notice to Volker of any these problems until after Volker submitted the Affirmative Action report. Thus, a reasonable juror could conclude that Volker’s submission of the report was motivating factor in the Court’s decision to terminate him. For these reasons, the court denied the County’s motion for summary judgement and allowed Volker’s claims to go to a jury.
This case illustrates a key protection employees have: the right to complain about perceived unlawful behavior. Even if much of what Volker did had been outside his job description, the fact that it related to ascertaining whether the County was in compliance with its legal obligations regarding affirmative action, meant the activity was protected. Because Volker’s report contained complaints about the County’s alleged failure to comply with affirmative action policies, a reasonable juror could find that the County fired him for issuing the report. This was enough mean Volker’s case could not be dismissed.
As an aside, Volker also brought state law claims which were dismissed because Volker did not file a notice of claim against the County. Washington State requires a similar Notice for tort claims. If you have a potential claim against a government entity you will want to be sure to comply with any notice requirements.
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