By Erica Shelley Nelson and Harrison Owens
In Burns v. City of Saginaw, the Sixth Circuit Court of Appeals affirmed a Michigan District Court’s dismissal of an African-American police officer’s claim for retaliation against his employer after he was terminated for issuing a fraudulent ticket. In his complaint, the officer claimed that he had been terminated in retaliation for filing a complaint with the EEOC, and that the police chief of his Department, who is white, used a racial slur against him in relation to his EEOC complaint. The Court dismissed his claim on summary judgment on the grounds that the officer’s EEOC complaint was actually filed following the citizen complaint relating to the fraudulent ticket, a white officer had similarly been terminated for filing a false accident report, and the police chief’s alleged racial slur was hearsay.
Officer Leon Burns was employed as a police officer by the City of Saginaw. In 2005, Gerald Cliff, who is white, became Chief of Police. In 2008, Burns was involved in an off-duty dispute with a neighbor involving a snow plow, which eventually led to him pleading guilty to a charge of careless driving in 2009. Burns alleges that in March 2009, Sergeant Anjanette Tuer asked him to defend her in a lawsuit brought by another African-American officer. When Burns refused, Tuer allegedly made several racist comments and threatened that she would “remember this day.”
Two days later, Tuer interviewed Burns about the snow plow incident, and later recommended verbal counseling. In April 2009, Burns submitted a complaint to City Manager Darnell Early and the Personnel Department, alleging that his verbal counseling was discrimination. No action was taken on this complaint.
Burns was the subject of an internal affairs investigation in October 2009, without prior notice of the charges, due to several officers complaining about his attendance. Burns was suspended for three days without pay. He was told by another officer that Chief Cliff used a racial slur and threatened those who opposed him, and that white officers with attendance issues were not disciplined. His suspension was later overturned by the Civil Service Commission, because it was imposed too late. These events led Burns to initiate an intake questionnaire for racial discrimination with the EEOC on December 9, 2009. He submitted a completed charge of discrimination on December 29, 2009.
On November 24, 2009, Matthew MacComber, a private citizen, complained that Burns had issued him a fraudulent traffic ticket. He presented evidence showing that he had been at work at the time the ticket was issued. On February 17, 2010, in response to the complaint, Chief Cliff recommended that Burns be terminated. The City Manager agreed, and Burns was terminated that day. Burns dismissal was later overturned by the Civil Service Commission, because the City had failed to impose the discipline within 90 days after the incident, and ordered that Burns be returned to work. He was eventually restored to his original position.
Burns brought a lawsuit against the City on August 31, 2011, in District Court for racial discrimination, hostile work environment, and retaliation. The Court dismissed his claims, finding that he did not prove that the City’s legitimate non-retaliatory reasons for terminating Burns were a pretext for discrimination.
The Court of Appeals affirmed the district court’s dismissal of Burns’ claims. To establish pretext, Burns had to prove that the stated reasons for his termination were factually false, did not actually motivate the discharge, or were insufficient to warrant discharge. The City stated that the cause of Burns’ termination was his issuing of a fraudulent traffic ticket. The Court of Appeals found that Burns did not offer any evidence to demonstrate the City’s reason was factually false, that his conduct was not the motivating cause of his termination, or that such activity did not warrant termination.
The Court of Appeals found that Burns did not offer enough evidence to establish pretext. Also, Burns did not explain how other incidents, such as the Personnel Department’s failure to address his internal complaints, establishes retaliation or was the reason for his termination. The Court of Appeals also stated that Burns could not rely on Chief Cliff’s racial slur, because he could not provide enough evidence that it occurred.
In summary, the Court of Appeals affirmed the District Court’s dismissal of Burns’ case on summary judgment, because he could not show that his termination was due to racial discrimination instead of his issuance of a fraudulent traffic ticket. He also failed to offer enough evidence that other officers had made racist statements, which could have indicated hostility toward him.
I am not sure the Sixth Circuit made the right decision here. Burns’ case was dismissed on summary judgment, which means that if he raised any facts to dispute the City’s version of events, he should have been allowed to proceed to trial on his retaliation claim. While there were multiple facts to challenge the City’s pretext argument, it is unclear from the decision whether Burns and his attorney actually raised them. For example, the Court’s decision identified at least a couple racially harassing statements (one by the police chief); two investigations into Burns’ workplace conduct that resulted in discipline (and that were ultimately overturned by the Civil Service Commission); and in fact, Burns was terminated after he filed his EEOC charge of discrimination (for some reason, the Court was fixated on when the ticket incident occurred, when the focus should have been on when Burns suffered the adverse employment action). Also, most of the facts giving rise to his claims occurred within a one-year time frame, which is compelling evidence of retaliation. Therefore, at a minimum, he should have defeated summary judgment. If Burns and his attorney raised all possible arguments available to defeat summary judgment, the Sixth Circuit was remiss in dismissing his case before trial.
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