- The U.S. Supreme Court on Monday declined to hear a case in which two White former Michigan State Police officers alleged they were retaliated against for speaking out against the department’s diversity initiative, according to court documents. The U.S. Court of Appeals for the 6th Circuit on Nov. 1 affirmed a ruling by the U.S. District Court for the Western District of Michigan against the former officers.
- In the case, the former officers — a captain of the seventh district in northern Michigan and an inspector in the same district — said they were demoted and fired, respectively, because they questioned the fairness of the department’s diversity initiatives and said “the term ‘White male’ had taken on a negative connotation within the police force.” Michigan State Police said the former officers were disciplined over misconduct in handling a transfer.
- The department said the former inspector allegedly used “his position to ‘bully and intimidate’ employees under his command ‘to manipulate a selection process to ensure a qualified candidate was not selected,’” and the captain allegedly “violated civil service rules during the selection process” by telling his employees interviewing the candidate to score the candidate based on the captain’s predetermined outcome and not on merit.
The U.S. Equal Employment Opportunity Commission says “retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of the EEO laws the Commission enforces.” However, the EEOC clarifies that employees are not immune to “consequences for poor performance or improper behavior by raising an internal EEO allegation or filing a discrimination claim with an enforcement agency. Employers remain free to discipline or terminate employees for legitimate, nondiscriminatory, nonretaliatory reasons, notwithstanding any prior protected activity.”
In the former officers’ case, the district court ruled on Dec. 27, 2021: “The court concludes that the defense has provided a legitimate, nondiscriminatory reason for Plaintiffs’ disciplines, and Plaintiffs have not shown those reasons were pretext for unlawful retaliation.”
In order to prove retaliation, a plaintiff needs to show that the reasoning for the discipline was pretextual.
Per the appeals court, the district court said the defendants “had satisfied their burden of showing that they honestly believed their nondiscriminatory reason” for demoting and firing the officers. “A plaintiff cannot show pretext when an employer has an honest belief in its nondiscriminatory reason for discharging an employee,” the appeals court said.
Proving retaliation can be difficult. The 3rd U.S. Circuit Court of Appeals ruled last year in Laurora v. Bayer Corp. that a vice president at Bayer couldn’t prove she was retaliated against for complaining that a direct report was removed from a project. In that case, the 3rd Circuit said the VP was unable to prove pretext that adverse work outcomes were related to her complaint.