Takeaway: Employees’ generalized complaints about racial unfairness in the workplace do not qualify as protected activity sufficient to support a retaliation claim. In this case, two police officers complained that workplace comments suggested unequal treatment based on race but did not complain about specific instances of racial discrimination.
?The 6th U.S. Circuit Court of Appeals affirmed a summary judgment decision dismissing the retaliation claims of two Michigan State Police (MSP) officers. The officers complained about negativity toward white men in the workplace shortly before they were disciplined for their handling of a subordinate’s promotion application.
The plaintiffs served as police officers for the MSP for over 30 years. One plaintiff was the captain of the seventh district in northern Michigan, and the other reported to him as an inspector. The plaintiffs had been close friends since attending the academy together in 1990.
In August 2019, one of the plaintiffs complained about a Black colleague’s comedy routine that featured racial jokes during an open-mic segment of a retirement party. The colleague served in the office of equity and inclusion, and the complaint was investigated by the MSP. The MSP recommended that the colleague be suspended for two days, but the district’s lieutenant colonel waived the discipline.
The plaintiffs also attended a fall forum meeting during which the MSP director stated that diversity was the No. 1 priority of the department and that the MSP was “way too white and way too male.” The next day, the plaintiffs complained to the lieutenant colonel about the comments and the director’s proposed initiatives.
Later that fall, an assistant post commander position became available in the seventh district. The only officer to apply was a white male who had worked for the MSP for 20 years. He had recently been promoted to detective lieutenant, serving as the district’s Traverse narcotics team commander. When the applicant expressed interest in the position, the plaintiffs and the applicant’s supervisor spoke with him individually and told him they would not support his transfer. They needed him to stay in the Traverse narcotics unit.
The applicant was required to obtain a recommendation from his supervisor to submit with his application. The supervisor completed the form and praised the applicant’s work. Nonetheless, he did not recommend the applicant for the position because he had not been in his latest position long enough to warrant a promotion to assistant post commander.
The application was forwarded to human resources. The HR director spoke with the district’s lieutenant colonel about the recommendation. The lieutenant colonel spoke with the captain and told him that MSP policy required that the department interview the applicant and follow all policies. The captain said he would follow the policies but planned to deny the transfer. The lieutenant colonel assured the captain that the lieutenant colonel would follow the results of the interview panel.
The captain told the hiring manager to conduct the interview process but said that, at the end of the process, he would not approve the applicant’s transfer. The panel interviewed the applicant and recommended him for the position. The inspector learned of this and notified the captain, and both plaintiffs encouraged the interview panel members to lower their interview scores for the applicant. The captain then told the hiring manager that the applicant would not be selected for the position and instructed him to reopen the application process.
Two days later, the MSP’s professional standards committee received a complaint against the inspector alleging that he manipulated the hiring process to prevent the applicant from obtaining the promotion. The committee investigated and found that both plaintiffs had manipulated the hiring process. The captain was demoted, and the inspector was terminated.
The plaintiffs filed a lawsuit against the MSP and several representatives, including its director, alleging racial and gender discrimination and retaliation under federal civil rights laws. The defendants filed for summary judgment on the retaliation claims, which the district court granted.
The plaintiffs appealed the decision to the 6th Circuit. On appeal, the 6th Circuit found that the plaintiffs’ retaliation claims could not proceed because they did not complain about specific instances of discrimination but only made conclusory allegations of double standards and negativity toward white males. The court found that the plaintiffs did not show that the reasons given for their discipline were pretextual and upheld the district court’s decision.
Caldwell v. Gasper, 6th Cir., Nos. 22-1031, 22-1032 (Nov. 1, 2022), petitions for en banc rehearing denied (Dec. 1, 2022).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
