By: Loyd Willaford and Clive Pontusson
In Jones v. City of Birmingham, a federal court ruled that an Alabama Police Officer had alleged sufficient facts to show he may have been transferred as retaliation for filing a complaint with the Equal Employment Opportunity Commission. The Court dismissed Edwin Jones’ claim for racial discrimination, but it did find that Jones had shown a potential retaliation for his filing a complaint with the EEOC. As a result, the Court determined that his case should be heard by a jury.
Edwin Jones was a Police Officer with the City of Birmingham. In 2015, Jones had had been involved in an argument with another officer. His supervisor overheard him using profanity and making comments the supervisor took to be homophobic. Jones then argued with his supervisor, and was given a counseling memo. Jones felt that he was being treated unfairly because of his race, and filed a complaint with the EEOC. Jones’ supervisor then approached him and asked questions about his EEOC complaint. Eight days later, Jones was transferred to a different position. Importantly, this position required more night shifts and gave Jones fewer opportunities for overtime. After filing a second EEOC complaint alleging retaliation for filing his first complaint, Jones brought a lawsuit against the Birmingham Police Department.
To begin, Jones argued that he had been discriminated against on the basis of his race. He argued that the counseling memo he received would go into his personnel file, and therefore it was an adverse employment action. Jones then argued that he received this memo because he was African American; the other Officer whom he had argued with was white and did not suffer any repercussions. Jones also argued that the decision to transfer him was a direct retaliation for his decision to file a complaint with the EEOC. Jones pointed to the fact that he was transferred a few days after his supervisor learned of the complaint, and the only reason given was that his supervisor “did not like him.”
In response, the City of Birmingham argued that there was no evidence that Jones’ race motivated the decision to issue him a counseling memo. Moreover, the City argued that the counseling memo was not an “adverse employment action.” Jones had not suffered any harm because the memo was issued. The City also argued that Jones could not prove retaliation because the Police Chief was the decision maker in charge of unit transfers, and Jones had not presented clear evidence that the Chief knew about his EEOC complaint. Therefore, there was no connection between his EEOC complaint and the decision to transfer him.
The Court began by determining that Jones had no evidence to support the allegation that his race played a role in any “adverse action.” The Court determined that the counseling memo was not an adverse action:
Criticisms of an employee’s job performance—written or oral—that do not lead to tangible job consequences will rarely form a permissible predicate for a Title VII suit […] performance criticisms are an ordinary and appropriate feature of the workplace.
In light of the additional fact that Jones had not introduced evidence of white officers in the same situation who did not receive any negative feedback, the Court dismissed this part of Jones’ lawsuit. However, the Court found that Jones had sufficiently alleged a claim of retaliation. While the Court noted that shift changes are not always adverse employment actions, in this case:
There is substantial evidence that the shift change was noticeably adverse to Plaintiff because the Police Department moved him from a day shift to an overnight shift, and the change of shifts prevented him from seeking out certain overtime opportunities that he could take advantage of while working on the day shift.
Finally, the Court determined that the closeness in time between Jones’ EEOC charge and his transfer was enough to suggest an improper motive:
First, less than a month elapsed between Plaintiff’s filing of the charge and his transfer. Second, Walker queried Plaintiff about the EEOC charge approximately one week before the transfer occurred. Third, Acton told Plaintiff on the date of the transfer that it had occurred because Walker did not want him on the Task Force, and Acton also asked Plaintiff about his EEOC charge. From this evidence, a reasonable juror could find that the actual decision maker knew of Plaintiff’s EEOC charge, and that a causal connection existed between the charge and the transfer.
For these reasons, Jones’ underlying claim of racial discrimination was dismissed, but his claim for retaliation will continue to a trial by jury.
This case illustrates what sorts of employer conduct amount to adverse employment actions for which an employer can be sued and which actions do not. Verbal Counseling, performance evaluations, and written reprimands are not normally adverse employer actions because they do not result in loss of pay or benefits or substantially affect the terms of employment. A transfer, such as occurred in this case, can be an adverse employment action if it results in different job duties and/or loss opportunities for job growth or advancement.
This case also illustrates that importance of evidence beyond the fact that a person is in a particular class of persons to demonstrate discrimination. This evidence will typically consist of others in a different class being treated differently. Here, Jones failed to identify that different treatment and his race discrimination claims failed. On the retaliation claim, the proximity of the transfer to the EEOC complaint was enough to suggest a retaliatory motive.
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