By Mitchel Wilson
In Bell v. City of Harvey, the district court suspended the City’s motion for summary judgment and granted Police Sergeant Andrew Bell more time to present evidence to substantiate his claims of five instances of retaliation for filing an age discrimination claim under the Age Discrimination in Employment Act (ADEA).
Bell is a 52 year old officer with the City and has been a sergeant for eight years. In 2007, the City promoted many officers but did not select Bell. Bell was eligible for several of the positions, but the City chose younger, less experience officers. He filed a civil suit, alleging age discrimination under the Age Discrimination in Employment Act (ADEA) and the parties settled.
However, Bell began experiencing a series of minor conflicts with the City. Bell’s supervisor issued him a written reprimand for a miscommunication of an absent officer while Bell was on duty as Watch Commander. Although the City had no practice or written policy of punishing officers for taking sick leave around scheduled time off, it issued Bell a one-day suspension without pay for “abusing sick leave.” Four other officers received similar punishments for similar behavior soon thereafter.
The City having three shifts, Morning, Afternoon, and Night, had an unwritten practice of rotating officers through all three shifts ever year. In the past year however, the City did not rotate Bell to the Morning shift and he worked the afternoon and night shifts.
The court explained that to bring a claim against a retaliatory action, the action must be “severe enough to dissuade a reasonable employee from exercising statutory rights.” The court considered the severity of the five actions against Bell in light of the circumstances. Bell’s written reprimand is not materially adverse on its face; furthermore, the one day suspension without pay is likewise negligible.
Ultimately, the most adverse action was failing to give Bell a day shift. In another case where an employee’s shift was changed just two hours, the court there found that such a change was material in the context/circumstances because it interfered with the employee’s ability to give her special-needs child care in the afternoon. Here, however, the City offered legitimate reasons for not granting Bell a day shift. They suffered from a shortage of officers and the day shift requires the least patrolling and they scheduled the least officers then.
Although these actions seem varied, disconnected, and had no clear evidence, the court determined that they could be motivated by retaliatory intent:
[R]etaliation may be proved “by assembling a number of pieces none meaningful in itself [that]…when taken as a whole, provide strong support if all point in the same direction.” Given Bell’s circumstantial evidence, a jury could reasonably determine that City would not have kept him from the first shift if he had never filed an EEOC charge. Thus, if Bell submits evidence sufficient to make the showing of harm discussed in the preceding section, City will then have failed to prove that no reasonable jury could award damages to Bell under the ADEA’s retaliation provision.
