Delisle v. Brimfield Township Police Department

BATCHELDER, Circuit Judge,

Dissenting.

Because plaintiff failed to file a complaint with the EEOC after he was demoted, I would have dismissed for lack of jurisdiction the plaintiffs Title VII claims based upon his demotion. Likewise, with respect to the remainder of his claims, I would have affirmed the judgment of the district court. Therefore, I respectfully dissent.

I.

Title VII prohibits an employer from “discriminat[ing] against any of his employees ... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge ... or participated in any manner in an investigation, proceeding, or hearing under this title.” 42 U.S.C. § 2000e-3. In order to show a violation of this section, a plaintiff bears the burden of proving that

(1) []he engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse em*259ployment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment.

Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000). If the plaintiff can make out a prima facie case, the burden of proof shifts to the defendants “to articulate some legitimate, nondiscriminatory reason for” their actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendants do so, the plaintiff is then required to show that the defendants’ articulated reasons are no more than a pretext for discrimination. Id. at 804.

With respect to the two back-to-back 3-day suspensions that Delisle received, purportedly for insubordination, Delisle claims that Burgess suspended him in retaliation for his attempt to communicate with Burgess’s superiors regarding Burgess’s alleged workplace discrimination. However, the record contains no evidence that Delisle attempted to raise to the Trustees any complaints of either religious discrimination or anti-union animus on the part of Burgess. Delisle points to his meeting in early 1999 with a Township Trustee soon after Delisle received a smaller raise than Sergeant Thomas. He recalls the conversation as follows:

And I said, I don’t know how to open this conversation, but I don’t want to appear like I’m violating any kind of chain of command, but I have some concerns over this pay raise issue. And we got into the conversation that Burgess had recommended those pay raises, that Burgess said I wasn’t doing my job, that Thomas was his right-hand man, and if he could make Thomas Captain tomorrow, he would have.

It is clear that Delisle was upset about his pay raise, but he did not mention any concern about religious discrimination or anti-union activity by Burgess. In fact, when Delisle confronted Burgess about the way Burgess conducted a meeting, Delisle told Burgess that the latter had acted “unprofessionally and not as a Christian. I wouldn’t have handled it that way.” Far from complaining about Burgess’s use of religion in the workplace, Delisle “used religion” to make his point to Burgess.

The record does indicate at one point that in connection with Delisle’s concerns about Burgess’s management style, Delisle had direct discussions with Burgess on the subject of Burgess’s use of religion in the workplace:

Q: So sometime in 1998 you and Chief Burgess started having a disagreement as to how to manage the department?
A: Manage personnel.... Yeah, the management of personnel was a little strained, I guess.
Q: And had you talked to him at this time about concerns that some of the officers had shared about the preaching?
A: Yes, I had several times.
Q: And what was his response to this?
A: He was to be a witness for Christ, and he was going to continue being a witness because part of his beliefs were to win souls and he was going to continue to be a witness.

These conversations with Burgess took place in 1998. at least nine months prior to Delisle’s suspensions for insubordination.

I can find no evidence in the record that when the relationship between Delisle and Burgess was at its lowest point, Delisle complained about Burgess’s “preaching” at *260work, either to Burgess or to the Trustees. In fact, Delisle admittedly refused to tell Burgess what was wrong at the meeting between the two men that precipitated the suspensions. When he appealed his suspensions to the Township Trustees, he did not mention religious discrimination. As the district court properly noted, “[N]one of Plaintiffs letters or written communications to Burgess or any written or spoken communications from Plaintiff to the Trustees complained of the alleged religious discrimination.” Even if Delisle has presented more than a scintilla of evidence that he was engaged in activity protected by Title VII because he did complain to Burgess about Burgess’s moralizing in the office, I think it clear that he has not shown “a causal connection between the protected activity and the adverse employment action.” Morris v. Oldham County Fiscal Court, 201 F.3d at 792. Moreover, the record 'contains no evidence that the Trustees even knew of the protected activity at the time of the suspensions. Because I think Delisle has failed to make a case with respect to his Title VII claim (and, hence, his state law claims) arising from his suspensions and he has likewise failed to present evidence that he was subject to a hostile work environment on account of any protected activities, I cannot join the majority opinion.

II.

Delisle also alleges that the defendants violated Title VII by retaliating against him for filing his EEOC complaint in September 1999, and points to his demotion in December 1999 as support for his claim. Delisle’s demotion was a discrete occurrence for which Delisle was required to file a separate EEOC complaint in order to claim now in federal court that the demotion violated Title VII, and we therefore lack the jurisdiction to consider any Title VII claim arising from that demotion. See 42 U.S.C. § 2000e-5; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-15, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Weigel v. Baptist Hosp., 302 F.3d 367, 379 (6th Cir.2002).

The Supreme Court unequivocally barred the very rationale the majority opinion relies upon to permit this claim:

Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” [A plaintiff] can only file a charge to cover discrete acts that “occurred” within the appropriate time period. While [the plaintiff might allege] that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through ... the date that he was fired, only incidents that took place with the timely filing period are actionable.

Morgan, 536 U.S. at 114. The majority opinion purports to rely on two district court cases for the proposition that courts have followed “such reliance on Morgan to support a denial of plaintiffs claim of an adverse action subsequent to an administrative filing is misplaced.” Its attempt to buttress this assertion notes our prior case of Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367, 379-80 (6th Cir.2002). Yet the proposition for which the majority opinion cites Weigel is inapposite. The majority opinion claims that a specific and discrete adverse action which may “reasonably grow” out of the original EEOC claim, but for which no EEOC charge was filed, may be reviewed by this court. Id. This reliance misunderstands our holding in Weigel:

[The Defendant in Weigel ] asserts that Weigel’s retaliation claim should be *261dismissed because she did not allege retaliation in the charge she filed with the EEOC. “It is well settled that federal courts do not have subject matter jurisdiction to hear Title VII claims unless the claimant explicitly files the claim in an EEOC charge or the claim can be reasonably expected to grow out of the EEOC charge.” Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001). On her EEOC charge, Weigel checked a box indicating discrimination based upon “Age.” but did not check the box marked “Retaliation.”
S= * * * * *
Since the employer’s articulation of its nondiseriminatory reason for taking a challenged adverse employment action is an essential step in any discrimination investigation, this claim clearly seems to be within the scope of any EEOC investigation expected to grow out of Weigel’s discriminatory hiring claim. Moreover, Weigel’s EEOC charge included facts relating both to [the defendant’s] refusal to rehire Weigel and to the allegedly discriminatory treatment she received while previously employed [with defendant].

Weigel, 302 F.3d at 379-80. As is apparent when reading the complete quotation, we did not hold, in disobedience of the Supreme Court’s holding in Morgan, that an EEOC charge which grows out of a prior one can somehow toll a claim that would otherwise be time barred. Instead, we were addressing a theory, namely, retaliation, which was not raised in the EEOC charge yet fell within the scope of an EEOC investigation. See id. Because the majority fads to defer to the Supreme Court’s explicit holding in this regard and instead mistakenly relies upon a prior case of this circuit for a proposition that we have never endorsed, I also cannot join this portion of its opinion.

III.

Delisle alleges that he suffered retaliation for speaking out on a matter of public concern, namely, “the inner workings of a police department upon which the general public relied upon [sic] for their safety and protection.” In order to prove First Amendment retaliation, a plaintiff must show

(1) that [he] was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused [him] to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of [his] constitutional rights.
To demonstrate that [he] was engaging in constitutionally protected speech, [plaintiff] must show that [his] speech touched on matters of public concern, and that [his] interest in commenting upon matters of public concern outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. If the plaintiff can establish the three elements of [his] First Amendment retaliation claim, the burden of persuasion then shifts to the defendants, who must show, by a preponderance of the evidence, that they would have taken the same action even in the absence of the protected conduct.

Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001) (internal quotations and citations omitted).

“Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). While “the Fust *262Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs,” id. at 149, it does protect speech regarding any “matter of legitimate public concern,” id. at 145.

While Delisle may have engaged in protected speech at some point, his complaints were many, and they were almost exclusively about Burgess’s management style and Delisle’s small raise. Even if he did engage in protected speech, Delisle has not shown that “that the adverse actionfs taken against him were] motivated at least in part as a response to the exercise of [his] constitutional rights.” Cockrel, 270 F.3d at 1048. The Trustees, who upheld the three day suspensions and later demoted Delisle at Burgess’s request, were presented with a situation of deteriorating functionality in the management of the Department due to the conflicts between Burgess and Delisle. Though the Trastees understood something of Delisle’s complaints about Burgess’s proselytizing at work from the EEOC complaint, there is no indication that they demoted him for any other reason than, as one of the Trustees stated, to “put one more layer between [Delisle] and management.” with whom Delisle could no longer work effectively.

For the foregoing reasons, I respectfully dissent.