By Kate Acheson and Jim Cline
In Cain v. Montgomery County, the Federal Court in Tennessee dismissed the discrimination and retaliation claims of a lieutenant Emergency Medical Technician (“EMT”) who was demoted for passing gas loudly. A Montgomery County Emergency Medical Services employee, Rita Cain, was hired on as an EMT in 1992 and was later promoted her to the supervisory position of lieutenant EMT in 1996. On March 29, 2010, Cain was present during an EMT’s call to dispatch about a patient’s transport. During that incident, Cain was upset that dispatch had not notified EMS of the transport and stated: “You all don’t tell me shit.” Then, Cain passed gas loudly enough for the dispatcher to hear over the telephone. When the dispatcher complained, Cain dismissed her flatulence as a joke.
On April 2, 2010, after a human res ources investigation, Cain was given a “performance correction notice” which demoted her to the rank of paramedic and required her to write a formal apology to the dispatcher. Over two years later, on April 12, 2012, Cain acknowledged the notice and demotion, but requested an appeal because she believed a male employee would not have been demoted for the same behavior. Soon thereafter, a lieutenant EMT position was listed as available but required that applicants have no disciplinary actions against them within the twelve months prior to applying – thereby disqualifying Cain from applying.
Cain filed suit, claiming sexual discrimination – that she was disciplined more harshly than male employees for “the same or worse conduct” – and retaliation – that her employer intended to disqualify her from her old position because she complained about sexual discrimination. The employer claimed
[I]ts discipline of Plaintiff was for a legitimate reason, namely, “immoral, indecent, or notoriously disgraceful conduct or conduct unbecoming of a county employee; use of disrespectful or offensive conduct or language in public, or towards the public, county officials, or fellow employees, either on duty or off-duty, or use of insulting, abusive, or obscene language.”
The Federal Court dismissed Cain’s discrimination argument, because she failed to provide any evidence of similarly-situated male employees who were punished differently than she was. Of the three men Cain provided as examples of similarly-situated employees, two were not supervisors and the third acted outside of his supervisory role while off-duty. Thus, Cain failed to show that she was disciplined more harshly than male employees for “the same or worse conduct.”
The Federal Court also dismissed Cain’s retaliation claim. Although the requirement that applicants have no disciplinary action within twelve months prior to applying may appear to be targeted retaliation of Cain, the employer showed the requirement was legitimate and non-discriminatory. Human resources policy mandates the requirement for all lieutenant positions and Cain produced no further evidence that human resources drafted the policy to retaliate against her. Thus, Cain’s retaliation claim was dismissed and her demotion for flatulence stands.
