Busby v. Tulsa, City of et al
Filing
146
OPINION AND ORDER by Judge John E Dowdell (JED1, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WALTER E. BUSBY, JR.,
Plaintiff,
v.
CITY OF TULSA,
Defendant.
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Case No. 11-CV-447-JED-PJC
OPINION AND ORDER
At the Pretrial Conference in this matter, the plaintiff, Walter E. Busby, Jr., notified the
Court that he was only seeking equitable relief on his claims under Title VII of the Civil Rights
Act of 1964, and he requested a non-jury trial before the Court.1 The defendant, City of Tulsa,
did not object. The Court accordingly conducted a bench trial at which six witnesses testified:
Walter Evans; Chief of Police Charles Jordan; plaintiff Walter E. Busby, Jr.; Paul Fields; Deputy
Chief Dennis Larsen; and Karen Ford. The Court admitted into evidence Plaintiff’s Exhibits
(PX) 2, 5, 6, 11, 12, 13, 14, 15, 18, 24, 25, 26, 32, 37, 38, 45, and 55, Defendant’s Exhibits (DX)
23, 25, 27, 33, 35, 39, 41, 42, 43, 44, 45, 46, 47, 48, 91, 92, 93, 94, 95, 96, 97, 98, 116, and 128,
and Joint Exhibit 29. Pursuant to Fed. R. Civ. P. 52(a), and upon consideration of the evidence
admitted at trial, the Court makes the following findings of fact, by a preponderance of the
evidence, and enters the following conclusions of law.
1
Captain Busby’s Title VII claims are set forth in the First Cause of Action of his First
Amended Complaint. (Doc. 7 at 11-12). The Court previously granted summary judgment on
his Second, Third, and Fourth Causes of Action and dismissed individually-named defendants
with prejudice. (Doc. 101 at 24).
I.
Findings of Fact
Background
The plaintiff, Walter E. Busby, Jr., is an African American man who has been employed
by the Tulsa Police Department (TPD) since 1981. He progressed through several positions over
35 years. He was promoted to sergeant in 1990 and to lieutenant in 1996. Later, the lieutenant
title was changed to captain, with a change in rank title and duties. From 1996, Busby requested
to work daytime assignments, and he was assigned to the second shift, which is also known as
the day shift. In April 2008, he was transferred to the TPD’s Mingo Valley Division, and he was
assigned to the day shift. At the time of Busby’s transfer to the Mingo Valley Division, Walter
Evans, also an African American officer, was the Major over that division.
Busby and Evans had known each other for years, they were amicable, and they had both
been members of the Black Officers’ Coalition, which is a fraternal organization of, and support
group for, black officers. In January, 2010, Evans ordered Busby to march in the Martin Luther
King, Jr. Day Parade with the TPD group that would be marching. Busby made it very clear that
he did not want to participate. Ultimately, Evans gave Busby a direct order: “If you are working
that day, you will participate and march with the department.” (Tr. at 244:15-22; see also id. at
245:17-19; PX 13, 14, 15). That was the genesis of the disputes at the center of this litigation.
The Order to Participate in the Parade
Busby claims that the order that he participate with the TPD procession in the parade was
based on his race. The City of Tulsa disputes that Busby was ordered to march based on his
race. Having heard all of the evidence and considered the demeanor and credibility of the
witnesses, the Court finds by a preponderance of the evidence that Busby was ordered to march
in the parade, and was denied holiday leave in order to force him to march, based on his race.
2
Busby was the only African American Captain under Evans in the Mingo Valley Division and
was the only TPD Captain who was ordered to march in the parade on January 18, 2010. As will
be discussed further below, the finding that Busby was ordered to participate based on his race is
fully supported by the evidence admitted at trial, including the testimony of Busby and Evans, as
well as Evans’s own writings at the time immediately before and after the parade.
Busby had long been on the parade citizen organizing committee, and he had at times
marched in the parade. He had never marched in the parade as a member of the TPD, and he did
not want to march with the TPD in the parade, because he did not think that the TPD had made
sufficient progress in areas regarding race relations. (Tr. at 241). On January 13, 2010, Evans
called Busby to Evans’s office, and Evans indicated that he was “ashamed and embarrassed
about the lack of participation of blacks in TPD-sponsored activities, particularly like the parade”
and informed Busby that Evans would like to see more participation and would like Busby to
participate in the parade. (Tr. 242). Ultimately, Evans more forcefully instructed Busby that, if
he was working, he would participate in the parade. (Tr. 243). Busby explained to Evans the
reasons he did not want to participate in the parade, which were rebuffed by Evans. Busby then
clarified, “Is that an order?” and Evans responded, “Yes, it’s an order. If you are working that
day, you will participate and march with the department.” (Tr. 244). Race was expressly
discussed during that meeting. (Tr. 244-245; see also PX 18).
On January 14, 2010, Busby requested permission to take leave during the time of the
parade. Evans responded, “Just give me a slip,” referring to a leave request in writing. (Tr. 47;
see also Tr. 72-73). Busby turned in a written request. (PX 11). Evans subsequently wrote
“DENIED” on the request and then signed it. (Tr. 73). Evans also wrote a memo to Busby,
dated January 15, 2010, stating, “After careful consideration, I have decided to deny your
3
request. You will report to work on January 18, 2010, as scheduled and one of your assignments
for that day will be to participate as a representative of MVD staff at the MLK parade.” (PX 13).
After receiving the memo, Busby wrote to Evans indicating that he was “respectfully bringing to
[Evans’s] attention that [the] order to participate in the parade is illegal [because] [Evans’s]
stated reason for [Busby’s] participation was based on [Busby’s] race and as such it is illegal.”
(PX 14).
The same day, Evans sent a memo to Busby. (PX 15). Evans characterized the memo as
his “final response” on the issue. (Id.). Evans disputed Busby’s assertion that he was directed to
participate in the parade based on his race. (Id.). However, Evans admitted that he “stated that
[he] was embarrassed that few African American officers participate in Department-sponsored
ceremonies, such as the Memorial Service, the MLK Parade, and the annual Awards Banquet.”
(Id.). Evans’s memo also stated, “The fact that we both share the same race as Dr. King and that
the parade is held in the African American community is consequential.” (Id.). At trial, Evans
asserted that the use of “consequential” was a “typo,” and that it should have read “coincidental.”
(Tr. 52-57). He testified that he knew of the “typo” the day he wrote the memo, but he did
nothing to correct the record until after Busby had asserted a claim for racial discrimination. (Tr.
57). However, it is clear from the context of the memo exchanges, and Evans’s admission that
the directive to Busby to march in the parade was made during discussions regarding African
American officers’ lack of participation in the parade, that Busby’s race was consequential to
Evans’s order, rather than “coincidental” to it.
Under protest, Busby complied with the directive and participated in the parade on
January 18. (PX 24; Tr. 250-251). The next day, Busby reiterated his assertion to Evans that
Busby had been treated differently than white Captains and that he believed that Evans’s order
4
was illegally based on Busby’s race. (PX 18). On March 30, 2010, Busby wrote to TPD Chief
Chuck Jordan, alleging that the work environment had become increasingly hostile to Busby
following the parade. (PX 24). Evans provided a memo to Chief Jordan in response to Busby’s
memo. (PX 25). Evans acknowledged referencing wanting black officers to have higher rates of
participation in the parade and other TPD events at the time of ordering Busby to march, but he
contended that he “did not assign [Busby] to the parade because he was an African American.”
(PX 25).
Although other Captains participated in the parade, the evidence at trial supported
Busby’s assertion that he was the only Captain who was ordered to participate. Two Captains
volunteered to march in the parade. (See PX 15 at 2; PX 25 at 5). One of the four captains under
Major Evans’s command – who is white – was not ordered to march in the parade and was
granted holiday leave, although such leave was denied to Busby when he asked for it. Evans
testified that he was unaware of any captain other than Captain Busby being denied holiday
leave. (Tr. 71-72; see also Tr. 256).
Retaliation
Notwithstanding his participation, soon after the parade, Busby began to encounter
adverse consequences, which Busby asserts were retaliation for his complaints about being
ordered to participate in the parade based upon his race. Based on the evidence, the Court finds
that Evans took actions in retaliation against Busby based upon Busby’s protected activity of
complaining about racial discrimination.
Evans testified that he took no actions against Busby in retaliation for his opposition to
being ordered to march in the parade based on his race or for his complaint of unlawful racial
discrimination. However, Captain Busby’s complaints of racial discrimination were prominently
5
identified in the most negative ratings in Major Evans’s 2010 evaluation of Busby’s
performance. For example, Busby was rated as “Need[ing] Improvement” under “Conformance
with rules, policies and instructions,” and “Relationships with Others,” based in part on the
following, written by Evans:
In January of 2010, I assigned Captain Busby to march in the police procession
during the Martin Luther King Parade. Captain Busby objected to marching in
the procession because (as he stated) he did not want to “stand with them”. He so
much objected to attending, that I was forced to “order” him to march. He
reported to the parade, as directed, but he alienated himself from others by
separating himself from others during the assembly, and by marching about 20
feet behind the police procession. This was noticed by other staff in attendance.
(PX 32 at 6-8). Evans also rated Busby as “Inadequate” as a supervisor, based in part on the
parade:
In January of 2010 Captain Busby objected to participating in the Martin Luther
King Parade because “he did not want to ‘put on a façade of unity’ or ‘march with
them’ (referring to officers who opposed the [Black Officers Coalition] lawsuit).
When I refused to excuse him from the assignment, he crafted a memorandum
that accused me of racism, and implied that legal action would follow if I did not
reconsider.
(Id.; see also PX 24 [Busby’s March 30, 2010 memo to Chief Jordan regarding Evans’s repeated
references to the parade as a basis for denigrating Busby’s performance]).2 Busby requests that
the Court order the defendant to purge the 2010 evaluation from his personnel record.
Evidence also points to Evans moving Busby to a different shift in retaliation for Busby’s
opposition. In February, 2010, Chief Jordan indicated that he would be creating a fourth shift,
with hours from 4 p.m. to 12:00 a.m. (Tr. 85-86, 92). At trial, Evans testified that, at the time
that Chief Jordan made the announcement in February, Evans decided that he would move
Captain Busby from the second shift (the day shift) to the new fourth shift. (Tr. 85-86, 119-120).
Prior to the 2010 parade and the mid-term evaluation that followed shortly after it, Busby
had received exceptional evaluations. (Tr. 258-259; see PX 2; PX 6).
2
6
Upon all of the evidence and the credibility of the witnesses, the Court finds that Evans’s
decision was in retaliation for Busby’s allegations of discrimination. Evans denied that he made
that decision out of anger or that he did so to retaliate against Busby. (Tr. 86). However, Evans
acknowledged that, at the time he decided to move Busby to fourth shift, Evans felt “hurt and
disappointment” because of Busby’s claim of racial discrimination:
Q.
We’ll get into your decision making. But when you made the decision to
send Captain Busby to fourth shift, you were angry at him for having
charged you with racial discrimination in assigning him to march in the
Martin Luther King Parade?
A.
Well, if we’re labeling emotions, the only emotion that I considered I had
was hurt and disappointment, but I was never angry at him at that point.
(Id.).
Although Evans made the decision to transfer Busby shortly after the parade, Evans did
not inform Busby of that decision until May, 2010. (Tr. 114; see also generally PX 26). Busby
was later moved to the fourth shift, even though he was the most senior Captain within the entire
TPD operations division and had requested to stay on the second shift. (Tr. 115). Busby
presented evidence that, notwithstanding the provisions of a collective bargaining agreement
indicating captains and above were excluded from seniority preference entitlements (PX 26),
there was a practice within the TPD of giving senior captains in the field preference when
possible in shift and day assignments. (Tr. 300-301, 366, 369-370, 378-379). Deputy Chief
Larsen also testified that the collective bargaining agreement does not prohibit consideration of
captains’ seniority as to shift and days off, and he does consider captain seniority as one factor in
determining assignments. (Tr. 412).
7
Evans denied the existence of a practice of abiding by the preferences of senior Captains
(Tr. 116), and he explained the reasons he chose Captain Ford, instead of Captain Busby, to work
on the second shift:
As you know, this department will again reorganize in August with a Fourth Shift
in the Operations Bureau. The Administrative Captain’s position will be
eliminated, and that position will be assigned to Fourth Shift. My current
Administrative Sergeant and Desk Officer will return to Bid Board, so at shift
change, I will have an inexperienced Administrative Sergeant, an inexperienced
desk officer, and no administrative captain. Also, it is possible that the full-time
Equipment Officer’s Position will be eliminated as well. Needless to say, there
will be a huge void in my administrative operations so I intend to assign some of
the administrative functions to the Day Shift commander. I currently have two
captains assigned to Day Shift, but only one can remain, and the other has to go to
Fourth Shift.
In selecting and assigning personnel under the principle of merit and fitness, I
wanted to select an experienced captain for Day Shift that could easily train and
coach the new Administrative Sergeant and Desk Officer, oversee some
components of our administrative operations, and easily manage the fleet without
an equipment officer. Candidly speaking, you are not the best-qualified choice
for that assignment at this time.
(PX 26 at 2). Busby responded to the foregoing email from Evans, pointed out certain problems
with Evans’s explanation, including that Busby had previously served well as Administrative
Captain and could obviously perform administrative duties. (Id. at 1).
Evans’s claim that he “wanted to select an experienced captain for Day Shift that could
easily train and coach the new Administrative Sergeant and Desk Officer” made little sense in
light of the fact that Busby had previously served as an administrative captain and had the
requisite experience. (Tr. 279-280; PX 26 at 1; DX 128). Moreover, Evans’s explanation for his
selection of Ford to provide Evans administrative help during the day shift was also undermined
by the fact that, when Captain Ford became the Day Shift commander in September 2010, she
was just over two months from retirement, which was known to Evans at the time. (Tr. 206207). Even after Ford retired, Evans did not transfer Busby back to the day shift, and the day
8
shift position was left open. (Id.). Finally, although Evans had already made the decision to
transfer Busby to the fourth shift later that year when the fourth shift was to be added, Evans
wrote to Chief Jordan on March 30, 2010, in response to Busby’s complaint of racial
discrimination, that Busby should not be transferred to another commander. (PX 25 at 15). This
evidenced Evans’s intent to keep Busby under his command in order to follow through on his
plan to transfer Busby to the fourth shift. All of the foregoing evidence reveals a retaliatory
motive by Evans.
Evans later omitted his assertion that Busby lacked the experience for the day shift
position. While preparing to explain to the Civil Service Board his decision to transfer Busby to
fourth shift, Evans claimed the decision was made because of alleged misconduct by Busby. Of
those alleged incidents, two included incidents in 2008 and 2009 that had never been previously
documented, and six of the alleged incidents occurred after Evans had already decided in
February of 2010 to transfer Busby to the fourth shift. (See PX 25 at 27, 28). Evans’s shifting
explanations were a pretext for his retaliatory actions against Captain Busby.
At the time of the change to fourth shift, Busby’s two daughters were young and in
school. The shift change was a hardship on him and his family, because he was working during
evenings, from around the time they would get home from school until after bed time. He would
not often see his daughters during the week, and he missed cheerleading performances and
birthdays. (Tr. 282-283). In addition, Busby and his family often attended Friday night football
games, and he was unable to do that without taking leave from work on the fourth shift. As a
result of the shift change, in order to try to spend any time with his family during the week, he
was forced to use substantial amounts of his accrued vacation time, which he had spent years
accumulating.
9
Busby testified that the move to fourth shift required him to completely change the
manner in which he utilized his leave time. There were three types of TPD leave: acquired
vacation; compensatory time; and sick time accrual. (Tr. 292-293). He was at the top level of
accrual, and each month, he accrued 17.33 hours of acquired vacation and 8 hours of sick leave.
(Tr. 293). The maximum amount of sick time that was permitted to be accrued was 1200 hours.
Once an officer reached 1200 hours of sick time, additional sick time each month would be
converted into acquired vacation time, until the acquired vacation cap (416 hours) was reached.
(Tr. 293-294). When the acquired vacation time cap was also reached, then the officer would
have to “use or lose” any leave time above the caps. (Id.). Acquired vacation time is valuable,
as a retiring officer may take, or be paid for, accumulated acquired vacation leave. (Tr. 294). In
addition, at retirement, all accumulated sick leave hours above 960 hours could either be
converted to acquired vacation leave (unless the 416-hour cap had been reached) or be put into a
health savings account. (Tr. 294-295). When an officer would reach 960 hours, he could
convert all sick time above that, hour for hour, into vacation time. (Id.).
At the time that Busby was transferred to fourth shift, he had reached the 1200-hour sick
leave cap, which meant that he was accruing acquired vacation time of 25.33 hours, instead of
the normal 17.33 hours, each month. (Tr. 294). Because he had also reached the maximum 416
hours of acquired vacation leave at the time of the transfer to fourth shift, every month, he had
been acquiring a total of 25.33 hours of vacation which he had to “use or lose.” (Tr. 295). After
he was transferred to fourth shift, he had to dip into his accrued accounts of acquired vacation
and sick leave in order to spend time with his family. (Tr. 295-297). As a result, Busby has
requested that the Court order that his banks of vacation and sick leave be reinstated or, if that is
not possible because he has reached the cap(s), he be awarded cash value for the hours he
10
utilized to mitigate the damage from the retaliatory shift change. (Tr. 296). In other words, he
has requested to be reimbursed all of the time that he took off during the 26 months that he was
on the fourth shift. (See Tr. 301-302). At the time he left fourth shift, he had only 27 hours left
of his 416 hours of acquired leave time. (Tr. 297). Busby testified that he also converted 64
hours of sick time to acquired vacation during the 26 months he was on fourth shift. (Tr. 297298). During the 26 months he was on fourth shift, he used 389 of his 416 acquired vacation
hours on top of the 25.33 hours of vacation time he was acquiring and using every month.
II.
Conclusions of Law
A.
Disparate Treatment Claim
Title VII of the Civil Rights Act makes it an “unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). In addition, “an unlawful employment practice
is established when the complaining party demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m). A plaintiff proves a Title VII violation “either
by direct evidence of discrimination or by following the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012).
Under the burden-shifting framework, a plaintiff must establish that he (1) is a member of
a protected class, (2) suffered an adverse employment action, and (3) the adverse action occurred
under circumstances giving rise to an inference of discrimination. Luster v. Vilsack, 667 F.3d
1089, 1095 (10th Cir. 2011). If plaintiff establishes that prima facie burden, then the defendant
11
must offer a legitimate, non-discriminatory reason for the employment action. Smothers v.
Solvay Chem., Inc., 740 F.3d 530, 539 (10th Cir. 2014) (citing Horizon/CMS Healthcare, 220
F.3d at 1191). Assuming the employer meets that burden, the plaintiff may then prevail only by
proving that “the employer’s proffered reason for the challenged action is pretextual – i.e.,
unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
“Pretext can be shown by ‘such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.’” Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997) (citation omitted). Thus, if “a plaintiff demonstrates that an
employer’s proffered reasons are ‘unworthy of credence,’ [the trier of fact] may ‘infer the
ultimate fact of discrimination’ or retaliation.” Smothers, 740 F.3d at 546 (quoting
Swackhammer v. Spring/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007)). Plaintiff
bears the ultimate burden to prove his discrimination claim.
There is no dispute regarding the first element of Busby’s disparate treatment claim. As
an African American, Captain Busby is a member of a protected class.
With respect to the second element of the disparate treatment claim, Busby asserts that
being directed to march in the parade and being denied requested holiday leave were adverse
employment actions taken because of his race. The evidence established that Busby’s race was a
motivating factor in the directive to march in the parade and the related denial of holiday leave.
That evidence included the following: (1) Evans’s own statements that he was “ashamed and
embarrassed about the lack of participation of blacks in TPD-sponsored activities, particularly
like the parade,” and he would like to see more participation and would like Busby to participate
12
in the parade; (2) Busby was the only Captain who was ordered to participate in the parade; (3)
another Captain – who is white – was granted requested holiday leave for the day of the parade,
while Busby’s request was denied; (4) Evans’s January 15, 2010 memo to Busby, admitting that
he had “stated that [he] was embarrassed that few African American officers participate in
Department-sponsored ceremonies, such as the Memorial Service, the parade, and the annual
Awards Banquet”; and (5) Evans’s statement that “The fact that we both share the same race as
Dr. King and that the parade is held in the African American community is consequential.” The
foregoing facts certainly give rise to an inference of discrimination based on Busby’s race, so as
to satisfy the McDonnell-Douglas analysis.
Although the Court finds that two of the three elements of Busby’s Title VII disparate
treatment claim have been met, that claim fails because marching in the parade and being denied
a few hours of holiday leave time, which meant that he had to march in the parade while he was
on duty, are not “adverse employment actions” within the meaning of Title VII jurisprudence.
The discrimination provisions of Title VII are limited to adverse actions “that affect employment
or alter the conditions of the workplace.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.
2007) (quoting Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006)). Claims of
adverse employment action on the basis of race are considered on a case-by-case basis,
“examining the unique factors relevant to the situation at hand.” Id. (quoting Sanchez v. Denver
Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)).
“Adverse employment action includes
‘significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits,’” but does not include “‘a mere inconvenience or an alteration of job responsibilities.’”
Id. (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir. 2004); Sanchez, 164 F.3d at
13
532). In this Circuit, “adverse employment action” is “broadly define[d].” Orr v. City of
Albuquerque, 417 F.3d 1144, 1150 (10th Cir. 2005) (citing Jeffries v. Kansas, 147 F.3d 1220,
1232 (10th Cir. 1998)).
Considering the evidence in this case, the Court finds and concludes that being ordered to
march in the parade, and being denied leave for two hours to avoid marching in that parade, did
not constitute a significant change in Captain Busby’s employment status, benefits, or the
conditions of his employment. At most, those actions were a mere inconvenience or alteration of
his job responsibilities – for less than a day. Moreover, the evidence reflected that Busby gave
high fives and acted festively amongst the crowd of parade watchers, and he had marched in the
parade before, albeit not in his capacity as an officer of the TPD. TPD engages in community
policing events as part of its effort to engage with the citizens of Tulsa as a “partnership in
policing,” and officers are assigned to participate to fulfill that function. (See Tr. 219, 251).
Captain Busby did not introduce evidence that he suffered any damages, nor did he request an
award of damages, for his disparate treatment claim. While disparate application of leave
policies may constitute an adverse employment action, see Orr, 417 F.3d at 1150-51, the denial
of a few hours of requested holiday leave did not constitute a significant change or anything
more than a mere inconvenience in this case.3
This determination is limited to the specific facts of this case. It is repugnant that TPD
orders of any kind would be based upon an officer’s race. However, the determination of this
claim is dictated under the applicable law, which requires a significant change in terms or
conditions of employment. Depending on the circumstances of a particular case, ongoing orders
to participate in community events or any other specific duties – when based on an officer’s race
– may well constitute a significant change or alteration in terms of employment. That is just not
the situation here, which involved a one-time occurrence to participate in a community policing
event and a denial of a request for two hours of leave time.
3
14
Accordingly, the Court finds and concludes that Busby is not entitled to judgment on his
claim for disparate treatment race discrimination (Part A of his First Cause of Action in the
Amended Complaint, Doc. 7).
B.
Retaliation
Under 42 U.S.C. § 2000e-3(a), it is “an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any practice made an
unlawful employment practice. . . .” Although the statute does not refer to such discrimination as
“retaliation,” the courts have so named claims under § 2000e-3(a).
A plaintiff suing for
retaliation “must establish that retaliation played a part in the employment decision and may
choose to satisfy this burden in two ways.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1233 (10th
Cir. 2015) (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)).
The plaintiff “may either (1) offer direct evidence that retaliation ‘played a motivating part’ in an
employment decision adverse to [the plaintiff’s] interests, or (2) rely upon circumstantial
evidence under ‘the familiar three-part McDonnell Douglas framework to prove that the
employer’s proffered reason for its decision is a pretext for retaliation.’” Id. (quoting Fye v.
Okla. Corp. Comm’n, 516 F.3d 1217, 1224-25 (10th Cir. 2008)); accord Conroy v. Vilsack, 707
F.3d 1163, 1171 (10th Cir. 2013).
To establish a prima facie case of retaliation, the plaintiff must show that (1) he engaged
in protected opposition to discrimination, (2) a reasonable employee would have found the
challenged action to be materially adverse, and (3) a causal connection existed between the
protected activity and the challenged action. Argo v. Blue Cross and Blue Shield of Kansas, Inc.,
452 F.3d 1193, 1202 (10th Cir. 2006). In the absence of direct evidence of retaliatory motive,
the plaintiff may establish that causal connection between the protected activity and the adverse
15
employment action through evidence justifying an inference of retaliatory motive. Ward v.
Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (citation omitted). The Supreme Court construes
the causation requirement as requiring a showing that the employer’s desire to retaliate was the
but-for cause of the challenged employment action. See Univ. of Texas Southwestern Med. Ctr.
v. Nassar, __ U.S. __, 133 S. Ct. 2517, 2528 (2013).
1.
The 2010 Evaluation
Busby asserts that the negative aspects of the 2010 performance evaluation were in
retaliation for engaging in protected activity. In order to show that he engaged in protected
activity, an employee need not prove that the employer actually violated Title VII. Opposition
can be protected even where plaintiff is wrong about whether the employer had actually violated
Title VII. It is enough that the plaintiff had a good faith belief that the conduct he opposed was
unlawful under Title VII. See Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir.
2002); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984); Winters v. Bd. Of Cty.
Comm’rs of Muskogee Cty., 633 F. App’x 684, 688 (10th Cir. 2015) (unpublished). Busby
provided evidence that he believed in good faith, and informed his employer that he believed,
that Evans’s order was unlawful discrimination based on race:
[T]his document serves as my respectfully bringing to your attention that your
order to participate in the parade is illegal. Your stated reason for my
participation was based on my race and as such it is illegal. It is also unfair as I
am unaware of any other Captain, on-duty or otherwise who has been ordered to
participate in this parade.
(PX 14; see also PX 18).4
The Court has found by a preponderance of the evidence that Busby’s race was a
motivating factor in Evans’s directive to march in the parade. The same evidence upon which
that finding was made establishes that Busby had a reasonable, good faith belief that he was
engaging in protected opposition to unlawful discrimination under Title VII.
4
16
Protected opposition is not satisfied only by the filing of formal charges; informal
complaints are sufficient to constitute protected opposition. Hertz v. Luzenac Am., Inc., 370 F.3d
1014, 1015 (10th Cir. 2004) (“Protected opposition can range from filing formal charges to
voicing informal complaints to superiors.”). The evidence here established that Busby engaged
in protected opposition, by voicing complaints and writing memoranda to Evans and Jordan,
asserting racial discrimination.
The Court also determines that a reasonable employee would have found the 2010
performance evaluation to be materially adverse.
Recovery under Title VII’s retaliation
provision “is not limited to discriminatory actions that affect the terms and conditions of
employment.” Burlington Northern, 548 U.S. at 64. Rather, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,” such that a
reasonable worker might have been dissuaded from engaging in protected activity. See id. at 68.
The standard is stated “in general terms because the significance of any given act of retaliation
will often depend upon the particular circumstances.” Id. at 69.
The negative components of the 2010 evaluation satisfy the foregoing standard. The
evaluation was the worst that Captain Busby had received in over 30 years on the TPD, and it
included serious critiques that Busby had “been openly defiant about some assignments and
directives given to him by his chain of command,” that he had “often been insolent,
insubordinate and hostile,” and that he “carefully crafted” memoranda “to offend the target
reader.” (PX 32 at 6-8). Evans concluded the evaluation by stating that Busby must “show[ ]
marked improvements in the above deficiencies, [be] willing to demonstrate more flexibility,
mutual respect, and acceptance of other viewpoints,” and that Evans “would not recommend a
division command for him.” (Id. at 13). Captain Busby testified that he had considered applying
17
for a position with the United States Marshal Service and that, with such a position or any other
law enforcement position, the negative comments in his prior evaluation might prevent him from
such employment. (Tr. 291-292).
With respect to the third element – a causal connection between the protected activity and
the challenged action – the Court determines that Evans’s desire to retaliate was the but-for cause
of the negative performance ratings given in the 2010 evaluation. The performance evaluation –
the worst Busby had ever received – followed shortly after his opposition to being directed to
march based on his race, and Busby’s opposition was cited more than once in the evaluation.
Evans gave Busby the lowest possible rating of “inadequate” in rating his performance as a
supervisor, and directly cited Busby’s statements in opposition to what Busby believed was
unlawful race discrimination as a reason for the rating:
In January of 2010 Captain Busby objected to participating in the Martin Luther
King Parade because “he did not want to ‘put on a façade of unity’ or ‘march with
them’ (referring to officers who opposed the [Black Officers Coalition] lawsuit).
When I refused to excuse him from the assignment, he crafted a memorandum
that accused me of racism, and implied that legal action would follow if I did not
reconsider.
(PX 32 at 8). Evans did not leave any doubt that he understood Busby’s opposition was based
upon a claim of racial discrimination. In fact, the foregoing statement in the 2010 evaluation
makes it clear that Busby’s accusation of race discrimination was a reason for the downgrade in
his performance. (See id.).
Elsewhere in the evaluation, Evans quoted with emphasis Busby’s statement in the
January 15, 2010 memorandum that “the order to march in the parade is based on me
participating because of my race, which is patently illegal. . . .” (Id. at 8, emphasis in original
prepared by Evans). These quotes were provided by Evans as evidencing that Busby was
“openly defiant” and “insolent, insubordinate, and hostile” during the evaluation period. (See id.
18
at 6, 8). By a preponderance of the evidence, the Court determines that retaliation was the butfor cause of the negative aspects of the performance evaluation. Evans’s reliance on Busby’s
complaints of race discrimination for his findings that Busby was “defiant” and “insubordinate,”
amongst other negative findings, are direct evidence of retaliatory motivation. Even assuming
they are not direct evidence of retaliatory motive, TPD’s assertions that the negative findings in
the evaluation were made for legitimate, non-retaliatory reasons are not supported by the
evidence at trial, and Evans’s attempted explanations are pretextual.
Captain Busby is accordingly entitled to a judgment in his favor on his retaliation claim
as to the 2010 Performance Evaluation. He requests that the Court direct that the City of Tulsa
“purge” that evaluation from Busby’s employment record, and Busby has cited cases that support
such relief. (See Doc. 144 and authorities cited therein). The Court determines that he is entitled
to that relief.
2.
Shift Change
The reassignment of Captain Busby to the fourth shift was also motivated by his
protected opposition to what he believed, in good faith, was race discrimination. The decision to
transfer him to the fourth shift was made soon after the parade. (See Tr. 85-86). At the time he
made that decision, Evans was “hurt and disappointed” because of Busby’s allegation of race
discrimination. (Tr. 86). Although Evans made the decision soon after the parade, he did not
inform Busby of that decision until months later. At the time the transfer was completed, Busby
had engaged in additional protected activity by writing to Chief Jordan alleging discrimination
and retaliation. (See PX 24).
Busby’s transfer to the fourth shift, 4:00 p.m. to 12:00 a.m., was also materially adverse
under the applicable standards, because he had young children at home, and the shift assignment
19
resulted in him spending little time with his family. As the Court found above, the evidence
established that the shift change was a hardship on him and his family, and he was forced to use
substantial amounts of his accrued vacation time, which he had spent years accumulating, in
order to maintain some semblance of a family life. One of the situation-dependent examples of
material adversity in Burlington Northern is relevant to the Court’s determination that a
reasonable employee would find the shift change materially adverse: “A schedule change in an
employee’s work schedule may make little difference to many workers, but may matter
enormously to a young mother with school-age children.” Burlington Northern, 548 U.S. at 69.
Based on the evidence at trial, the Court concludes that retaliation was the but-for cause
of Captain Busby’s transfer to the fourth shift. While planning to transfer Busby to the fourth
shift, Evans recommended to the TPD Chief that Busby not be transferred to another
commander, which is circumstantial evidence of retaliatory motive, i.e., that Evans wanted
Busby to remain under his command so that he could impose his plan to transfer Busby to the
less favorable shift. Evans made the determination that he would move Busby to the fourth shift
soon after the parade, and his numerous attempts to explain why he selected Captain Ford for the
second shift were not credible, as noted in the Court’s findings above. Evans’s explanation for
his selection of Ford to provide daytime administrative help was nonsensical in light of the fact
that, when Captain Ford became the day shift captain in September 2010, she was just over two
months from retirement and, after she retired, Evans left the day shift open. That evidence
undermines Evans’s assertion that he moved Busby to fourth shift because of Evans’s acute
needs for administrative help during the day shift. As noted in the Court’s findings, Evans also
provided shifting justifications for his decision to move Busby to fourth shift.
The same
evidence establishes that Evans’s alleged reasons for moving Busby to day shift were pretextual.
20
Accordingly, Busby is entitled to judgment on his claim of retaliation regarding the shift
change. Captain Busby requests that the Court order that the City of Tulsa restore a total of
1,047 hours of vacation leave and 64 hours of sick leave to his leave accounts or, to the extent
any hours cannot be restored because they would result in exceeding the applicable leave caps,
order that Busby be paid the cash value of any such hours. The evidence does not support an
award of all of the 1,111 hours of leave time that Busby took during the 26 months he was on the
fourth shift. Busby testified that, at the time he was assigned to the fourth shift, his accounts of
sick leave and acquired vacation time were full, i.e., he had reached the caps. Even before he was
moved to the fourth shift, Busby was using those 25.33 hours of “use it or lose it” acquired
vacation time each month, such that he could not have been injured by continuing his use of
those 25.33 hours of leave for the 26 months that followed. Thus, there was no difference in
how he used those 25.33 hours that he accrued each month after he was moved to fourth shift,
and to compensate him for those hours would result in a windfall to Captain Busby. After the
shift change, he was using those 25.33 hours, plus he took an additional 389 hours of acquired
vacation and converted 64 hours of sick leave to acquired vacation time. He will be made
“whole” by an order directing the City of Tulsa to restore to him the 389 acquired vacation hours
and 64 hours of sick leave that he utilized from his capped leave accounts as a result of the
retaliatory transfer to fourth shift.
III.
Order for Relief
1.
The City of Tulsa shall permanently remove Captain Walter E. Busby’s 2010
evaluation from his personnel file and shall destroy all copies of said document, including but
not limited to all paper copies and versions maintained electronically. The City of Tulsa shall be
prohibited from using the 2010 evaluation or any part thereof in any manner or for any reason.
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2.
The City of Tulsa shall compensate Captain Busby for the 389 acquired vacation
hours and 64 hours of sick leave that he utilized from his capped acquired vacation and sick
leave accounts as a result of the retaliatory transfer to fourth shift. Specifically, the City of Tulsa
shall restore 389 hours of acquired vacation and 64 hours of sick leave to Busby’s respective
leave accounts. If some or all of the leave hours to be restored cannot be credited to his leave
accounts for any reason, such as the hours to be restored would exceed the sick leave and/or
acquired vacation account caps, the City of Tulsa shall pay Busby the cash value of any of those
hours that cannot be credited to his account. In the event the parties cannot agree to the cash
value of any hours that cannot be credited, the Court shall be advised within 30 days of the date
of this Order, and the matter will be determined by the Court. The Court will await the entry of
Judgment until being so advised.
3.
Captain Busby is the prevailing party in this action, and the Court, in its
discretion, determines that he should be awarded a reasonable attorney fee as part of his
recoverable costs. His motion for attorney fees and costs shall be filed within 20 days of the date
of this order.
SO ORDERED this 25th day of January, 2018.
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