By Erica Shelley Nelson and Sarah Burke
In Bonenberger v. St. Louis Metro. Police Dept., a white police officer applied for and was denied the position of Assistant Academy Director of the St. Louis, Missouri Police Academy, an African American woman was chosen instead. The police officer sued department officials alleging race discrimination and conspiracy to discriminate. A jury found in the officer’s favor on claims against three of his superiors regarding both claims. The department appealed the district court’s denial of their motion for a judgment as a matter of law.
Sergeant Bonenberger was a long-time employee of the St. Louis Metropolitan Police Department. In September 2010, the Department posted a job opening for Assistant Academy Director of the city’s police academy. Upon learning of the opening, Sergeant Bonenberger contacted Lieutenant Muxo to see if he would be considered despite failing to meet the minimum qualifications. The Lieutenant told Sergeant Bonenberger “not to bother applying … because the job was going to a black female. … [I]t was out of his hands … and [his superior Lieutenant] would make the decision.”
The outgoing Assistant Academy Director, Sergeant Deborah Boelling, also discussed the position with Lieutenant Muxo. When they discussed who might be selected for the position, Lieutenant Muxo declared, “there no way [sic] they were going to put a white male in that position.” Sergeant Boelling suggested Lieutenant Muxo consider Sergeant Bonenberger for the position. She inquired who Lieutenant Muxo was “interested in” and why, and he replied Sergeant Taylor was being considered because “Harris wanted a black female in that position.”
Sergeant Bonenberger applied for the job anyway, “hop[ing] that maybe something would fall through with the person they had picked out for it.” Despite Sergeant Bonenberger’s interest and Sergeant Boelling’s recommendation, Lieutenant Muxo recommended Sergeant Taylor, an African American woman with virtually similar qualifications to Sergeant Bonenberger.
Like Sergeant Bonenberger, Sergeant Taylor did not meet the minimum qualifications for the position. She had less supervisory and teaching experience than Sergeant Bonenberger, and scored lower than Sergeant Bonenberger on her performance evaluations. Neither Sergeant Bonenberger nor Sergeant Taylor were interviewed.
The jury found for Sergeant Bonenberger on his discrimination claims against all three defendants and his conspiracy claim against Lieutenant Muxo and Lieutenant Colonel Harris. Lieutenant Muxo, Lieutenant Colonel Harris, and Chief Isom moved for judgment as a matter of law, to amend the judgment, or for a new trial. The district court denied the motion and they appealed the denial of their motion for judgment as a matter of law.
The department argued that Bonenberger had failed to establish a prima facie case of discrimination because he had not suffered an adverse employment action. The position of Assistant Academy Director did not have an increase in pay, benefits, or rank and therefore, the department argued, denial of such position created purely subjective injuries and did not rise to the level of an adverse employment action.
The Eight Circuit disagreed. The Court explained that changes in supervisory duties, prestige, and promotion potential, if significant, can produce materially different working conditions. In Bonenberger’s case, the position of Assistant Academy Director was a high-profile job that involved significant supervisory duties, more contact with rank officers, provided regular daytime hours and holidays off, and a person holding the position had a much greater likelihood of being promoted to Lieutenant.
The Court further found that the jury was reasonable in their interpretation that Lieutenant Muxo and Lieutenant Harris’ remarks amounted to conspiracy.
In summary, the Eight Circuit affirmed the district court’s finding that a white police officer had established a valid discrimination claim by demonstrating his denial of a position was an adverse employment action despite no change in pay, benefits, or rank. The Court additionally affirmed that the jury could reasonably construe the conversations between the supervisors as amounting to a conspiracy.
This case has two interesting pieces, non-tangible adverse employment actions and compelling direct evidence.
Adverse employment actions are most commonly terminations, demotions, and reductions in rank that involve some “tangible” action that more often than not hits an employee in the pocketbook.
This case addresses the less-common situation where there are other adverse actions effecting working conditions that do not result in any sort of reduction in pay or benefits. This case naturally broadens the definition of adverse actions and takes into account the less-tangible, but still incredibly important changes in working conditions, such as improvement in work hours and greater supervisory duties that, when taken away, constitute adverse actions. This case certainly constitutes a “win” for the employee.
The officer in this case also had pretty compelling facts to show that a black female officer was being favored over him, including multiple statements from the decision-makers. These facts certainly persuaded the court here.
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