Threat to Discipline Based on False Report to EEOC Could Support Retaliation Claim

In Cox v. Onondaga County Sheriff Department, No. 12-1526 (2d Cir. July 23, 2014), the Second Circuit recently held that threats made by an employer to charge employees with making a false report to the EEOC could establish a prima facie case of unlawful retaliation in violation of Title VII, shifting the burden of proof to the employer to show a non-retaliatory purpose for the action.

The plaintiffs in the underlying case were transport and custody officers employed by the Onondaga County Sheriff Department. In a display of solidarity with one of the plaintiffs who had cancer and had lost his hair due to cancer treatments, the other plaintiffs shaved their heads. The plaintiffs then claimed that they experienced racial harassment from other employees and filed a “blue form” complaint with the department, which initiates an internal departmental procedure. They asserted that they had been the victims of rumors that they were skinheads because of their shaved heads and that the rumors had been started by O’Dell Willis, an African American deputy who worked with them. The complaint alleged that this deputy had approached one of them and asked why his head was shaven and that then several other African American deputies had asked some of the plaintiffs the same question. In this “blue form” complaint, the plaintiffs did not assert that the inquiries of them were of a confrontational or accusatory nature. However, the plaintiffs claimed that the rumors had made the workplace racially hostile and unsafe and put them and their families in danger. Apparently, some of the harassment was from the inmates.

The assistant chief of the department dispatched a supervisor to investigate the allegations. His report concluded that there was no evidence of harassment. However, it turned out that the supervisor had failed to actually interview everyone he claimed to have interviewed.

The plaintiffs then filed racial harassment claims with the EEOC. The EEOC complaints were very different from the “blue form” complaints filed directly with the department. In the complaints filed with the EEOC, two of the plaintiffs claimed that an unnamed African American deputy (determined to be Willis) had accused them of being skinheads in a face to face confrontation. Two other plaintiffs claimed that they had been referred to as skinheads and called racist. All of the plaintiffs claimed that the Department had acted upon similar complaints of harassment by African American deputies, but yet had failed to take action in response to their complaints.

After the employer was given a chance to file a response with the EEOC, the EEOC dismissed all of the complaints and issue the employees’ their right to sue notices. The department continued its investigation into the issues raised by the EEOC charges. As a part of this investigation, the plaintiffs were interviewed. None of the plaintiffs reported that they had been called a skinhead during a face to face confrontation. The plaintiffs were told that disciplinary actions against them were being considered based on the falsity of the complaints filed with the EEOC. Ultimately, the sheriff decided not to take any official action against those plaintiffs who had provided false information to the EEOC.

The plaintiffs then filed a second round of EEOC charges, claiming that they had been retaliated against because of their reports of harassment through the investigation and threats of charges for filing false reports and subsequently filed a lawsuit alleging violations of Title VII, including a claim of retaliation. The district court granted summary judgment to the employer on the retaliation claim, finding that there was no evidence of an adverse employment action and the plaintiffs appealed.

The Second Circuit found that the undertaking of an investigation was not an adverse employment action, explaining that “employers must be allowed to inform themselves of all facts relevant to an EEOC complaint” and that “the law must give breathing room for such investigations to be carried out.” Cox, p. 16.

However, the Second Circuit concluded, the threat of charges for false reports did constitute an adverse employment action, stating that “[o]bviously , such a threat would often-even usually-be a deterrent to reasonable employees making or supporting discrimination claims.” Id., p. 20. The Second Circuit concluded that while it is true that filing false charges with the EEOC is impermissible, that does not mean that the employer can respond with disciplinary action against an employee who takes such action. Id. Thus, the Second Circuit concluded that the plaintiffs had asserted a prima facie claim of retaliation.

Here, although the Second Circuit found that the plaintiffs had asserted a prima facie case of retaliation, the employer here was able to meet its burden of showing a non-retaliatory reason for the threat of discipline. First, there had been a misconduct complaint against these officers related to the false information provided. Additionally, the false statements about Willis could be viewed as racial harassment of him. Because the department has a duty to investigate and curb racial harassment, “[i]t would therefore be anomalous to conclude that an employer is not allowed to investigate, with a view to discipline, false complaints of harassment that themselves might be viewed as harassment.“ Id., p. 24. Moreover, concluded the Second Circuit, the plaintiffs had presented no evidence of pretext to counter this non-retaliatory reason. Id., p. 25. Thus, their claims still failed as a matter of law.