Employment Law

Boss, You Can’t Say That—It’s Retaliation”

When a federal jury in a retaliation case hands a $1.5 million verdict to a Phoenix police sergeant, the case gets my attention. The April 10, 2019, verdict made headlines in the Arizona Republic, where the lawyer for Sergeant Jeffrey Green extolled the “big and worthwhile victory.”

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Green has worked for the Phoenix Police Department since 1994, and he is still working there. He first made his retaliation complaint in 2012, and he kept his job during an investigation by the Equal Employment Opportunity Commission (EEOC), then through all the pretrial discovery (i.e., fact-finding) and motion practice available in federal court, and finally through a six-day trial. The eye-popping verdict and Green’s persistence in pressing his claim while still on the job were both highly unusual circumstances. Intrigued, I dug into the public court file.

Not His First Complaint

Green filed a sexual harassment complaint in 2009 that was settled in 2011. In April 2012, while he was out on leave for stress-related illness, he filed a retaliation charge with the EEOC, alleging that several retaliatory actions were taken against him because of his earlier complaint. After he returned to work, the only female officer on his squad complained to him that another sergeant had grabbed her between the legs while she was off duty. Green assisted her in filing a formal complaint with the city.

A few months later, Green’s supervising lieutenant allegedly told him that “we need to get rid” of the female officer because she made the complaint. Green responded by saying, “Boss, you can’t say that—it’s retaliation.” Green said the lieutenant then suggested pretextual (untrue) reasons that would support the female officer’s firing.

A few weeks later, two colleagues accused the female officer of posting inappropriate messages on their Facebook pages. Green investigated and determined their complaints were unfounded. However, his lieutenant allegedly ordered him to discipline the female officer anyway. Green refused and reported the lieutenant to their supervisor.

The lieutenant made his own report against Green, asserting that his erratic, emotional behavior during their meeting about his investigation of the Facebook messages caused the lieutenant to fear for his safety and the safety of other employees. The city immediately put Green on administrative leave and ordered him to undergo a fitness-for-duty (FFD) evaluation. The next day, the lieutenant issued him a poor performance review.

Important Takeaways

The EEOC found cause to believe retaliation had occurred. The EEOC determination was one of only six exhibits Green used at trial. The city tried hard to defuse the sting of the EEOC’s finding of retaliation throughout the litigation. Ultimately, however, the agency’s determination was a powerful piece of evidence in Green’s favor. EEOC determinations generally are admissible at trial in Arizona and other states within the U.S. 9th Circuit Court of Appeals. That’s why employers must carefully and vigorously defend themselves during EEOC investigations.

Adverse action sweeps broadly. Green wasn’t fired. He wasn’t demoted. His pay wasn’t cut. One of the city’s primary lines of defense was that nothing bad happened to him after he complained. However, the legal standard counts as retaliation anything “reasonably likely to deter” employees from making or assisting others in making discrimination complaints. Thus, Green was able to point the jury to his being put on administrative leave, getting a poor performance review, and being required to undergo FFD evaluations as adverse actions.

Juries understand retaliation. There’s nothing arcane or sophisticated about revenge. Juries understand the human aspect of getting back at someone. That’s what makes retaliation claims so risky for employers. Training supervisors to curb their human instinct to retaliate is one of the most important things you can do to avoid being on the wrong end of a seven-figure jury verdict.

Green’s case is not over—the city has filed motions to set aside the verdict. Regardless of the ultimate outcome, the case highlights important lessons for all employers.

Dinita L. James is a Partner in the Gonzalez Law, LLC law firm in Tempe, Arizona and is an Editor for the Arizona Employment Law Letter. She can be reached at dinita.james@gnzlaw.com or 480-565-6400.