Tase Us if You’ve Heard This Before: GA Officer’s Bias Case Can Go Forward, Georgia Employment Law Letter

August 15, 2019

On August 15, 2019, the U.S. 11th Circuit Court of Appeals (which covers Georgia) ruled a Union City police officer’s race, sex, and disability discrimination claims survived summary judgment (dismissal without a trial) and should be heard by a jury. We’ve written two articles about the case (see “11th Circuit stuns police department in reversal of Taser termination” by Glianny Fagundo in our January 2018 issue and “11th Circuit requires ‘similarly situated in all material respects’ comparators” by Destiny Washington in the May 2019 issue). The appellate court’s most recent opinion said the case should go forward because the officer presented a “convincing mosaic of evidence that discrimination may have taken place” even though she couldn’t offer any comparator evidence. Will the case be appealed again? Stay tuned.

Facts

Jacqueline Lewis, an African-American female police officer, was employed by the Union City Police Department (UCPD). As we reported earlier, she worked as a patrol officer from 2001 until 2008, when she was promoted to detective. In 2009, she suffered a heart attack but was cleared to work without restrictions.

In 2010, the police chief implemented a new policy requiring all officers to carry Tasers. As part of the training, officers had to receive a five-second Taser shock. Further, Lewis was scheduled for pepper spray training. She and her doctor agreed that because of “several chronic conditions including a heart condition,” she might have an increased risk of injury.

The police chief concluded Lewis would be prevented from performing her essential job duties because, as a detective, she would, at the very least, be “near” pepper spray. She was then placed on unpaid administrative leave and instructed to complete Family and Medical Leave Act (FMLA) documentation to cover her absence. She failed to complete the process and was discharged when her accrued leave was exhausted.
Lewis filed suit in the U.S. District Court for the Northern District of Georgia on November 19, 2012, al-leging disability discrimination under the Americans with Disabilities Act (ADA) and race and gender discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 (a part of the Civil Rights Act of 1866 that prohibits race discrimination). The UCPD requested summary judgment on all claims.

2 white male comparators

To support her claims, Lewis pointed to two white male UCPD officers as comparators, whom she claimed were treated more favorably than she was.

Comparator 1. Sergeant Cliff McClure was placed on administrative leave after failing the balance portion of a physical fitness test in April 2014. He was given 90 days of leave to remedy the condition and retake the test.

Comparator 2. Officer Walker Heard failed a physical fitness test and was initially placed on leave without pay for 90 days, which enabled him to work with medical professionals to pass the exam. Near the end of the officer’s leave, his attorney sent a letter to the UCPD stating (1) his client has a disability and (2) the fitness test should be waived. The police chief offered heard the chance to transfer to a dispatcher position, which didn’t require a fitness test. The position was held open for him for 11 months, until he declined the offer and the department fired him. At that point, he had been on administrative leave for 449 days.

On November 26, 2014, a magistrate judge issued a report and recommended granting the UCPD’s request for summary judgment in its entirety. As for the race and gender claims, the court found Lewis’ purported white male comparators weren’t “similarly situated” because (1) they had failed physical fitness tests, not weapons certification tests, and (2) her lead physician had expressed concern about her proximity to Tasers and pepper spray. The district court adopted the magistrate’s reasoning and conclusions. Lewis appealed.

11th Circuit’s first decision

On December 15, 2017, the 11th Circuit issued an opinion on the district court’s judgment, affirming in part and reversing in part. With respect to the gender and race claims, the court said Lewis had presented enough evidence to establish (1) a genuine issue of fact under the McDonnell Douglas burden-shifting framework and (2) a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.

New decision digs into reasons for termination

The court panel found that even though Lewis couldn’t meet her prima facie case, her claims could still make it to trial if she could show “circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.” A “convincing mosaic” can be evidence that demonstrates, among other things, (1) “suspicious timing, ambiguous statements . . . and other bits and pieces from which an inference of discriminatory intent might be drawn,” (2) systematically better treatment of similarly situated employees, and (3) the employer’s justification is pretextual (or a cover-up).
The panel found Lewis could establish a convincing mosaic because she showed the UCPD’s decision was “extremely arbitrary” and “pretextual.” The department claimed she was fired because her medical condition was permanent. The evidence suggested, however, that her superiors believed either she was faking the condition or it wasn’t serious enough to prevent her from working as a detective.

Next, the UCPD claimed Lewis was fired for being absent without leave (AWOL) (because her paid leave had expired at the time of her termination) and failing to file the FMLA paperwork in a timely fashion. There was substantial evidence to cast doubt on both alleged motivations for her firing, according to the panel.

As for the first reason, the UCPD placed Lewis on administrative leave until her physician could release her to continue working. She was again told she couldn’t return to work until her doctor medically cleared her to do so. Over the first week of July 2010 (or shortly before the firing occurred), she was in regular contact with her superiors to let them know her doctor was on vacation and that she had scheduled an appointment on the same day of the doctor’s return. Nonetheless, she was fired for being AWOL on the morning after the day of the appointment and before her superiors ever spoke to or received any information from her or the doctor.

As for the timeliness of Lewis’ FMLA paperwork, there is no evidence the UCPD ever set a deadline for filing it. In addition, she diligently communicated with her superiors about her progress in obtaining the needed forms while the doctor was on vacation, and the discussions with the employer made clear she would be taking FMLA leave at the expiration of her paid leave.

Finally, even though McClure and Heard weren’t true comparators, the court panel said “a reasonable jury could find . . . the [UCPD] did not consistently exercise its authority in placing physically unfit officers on administrative leave and that the [department] did not comply with its own policies”—to the benefit of white men and the detriment of black women.

Bottom line

Even when there is no evidence of a comparator, employees alleging race and sex discrimination may survive summary judgment by showing a convincing mosaic of evidence of bias. While the loophole may give race or sex discrimination claims a second chance in limited instances, the burden for employees is still significant. They must provide ample proof that would give rise to an inference of discrimination. For example, they must still point to pretext, better treatment for similarly situated individuals, or other evidence of discriminatory intent.

If you continue to focus on treating employees fairly and consistently and follow your policies and procedures, you should be in a good position to defeat a convincing mosaic argument.



Subscribers to the Georgia Employment Law Letter can read the full issue on its website.

‹ Publications

Attorneys

Services