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Appeals Court Looks at Public Sector Discrimination Case

Government worker alleges discrimination

A recent decision out of the 10th Circuit Court of Appeals in Denver illustrates how different an employment discrimination case can be when the employer is a public entity instead of a private employer. Government employers must meet an extra burden to defend such claims, since public sector employees may bring constitutional challenges as well as statutory claims. It is essential for government employers to be able to prove legitimate, nondiscriminatory reasons for their actions and to ensure that employees are given adequate due process in a termination or other employment decision.

Unfavorable Job Assignment Could be Employment Discrimination

The case involved a black social worker working for the Denver School District who was given an unwanted assignment, while her preferred assignment went to a younger, and in her eyes less qualified, white social worker.

The employee filed an employment discrimination complaint with the EEOC, and while her claim was pending, she was suspended by her supervisor for poor work performance and then terminated following a seven-day arbitration hearing.

The fired worker then filed a lawsuit in federal court, alleging that her assignment, suspension and termination were done in retaliation for her filing the EEOC complaint.

Allegations of Retaliation Failed

In order to succeed on a retaliation complaint, the worker must prove that she engaged in a protected activity, such as filing an EEOC complaint, that resulted in a materially adverse action, such as a suspension, termination, or unfavorable job assignment. In this case, however, the court failed to see retaliation as a reason for any of those actions. First, the assignment was made before the complaint was ever filed, so it was not retaliatory. As to the termination, if the worker could have shown that the supervisor manipulated the school district into terminating her, then the worker may have had a valid claim under a “cat’s paw” theory of liability, but the court found that the termination was based on the results of a thorough arbitration hearing conducted by a neutral arbitrator, without evidence of retaliation.

What about the suspension? The suspension was the decision of the supervisor, whom the plaintiff failed to name as a defendant in the case. Unlike private employers, who are generally liable for the actions of their employees, a government employer is protected against the unconstitutional actions of an employee unless that employee was a final policy maker, the action reflected an official policy or custom of the agency, and the decision was ratified by the employer. Even if the suspension here was retaliatory, the worker did not have a claim against the school district, although she may have had one against her supervisor.

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