Las Vegas POA

Reprimand Not Sufficiently ‘Adverse’ To Support Discrimination Suit

Written on 12/10/2020
Will Aitchison

Detroit Police Officer Adeela Green, who is African American, was supervised by Lieutenant James Cashion, who is white. On April 16, 2016, Green and her partner were dispatched to address debris falling from an abandoned building that was creating a traffic hazard. Cashion arrived at the scene and deployed barricades to block a parking lane on Michigan Avenue. According to his activity log, Cashion counseled Green and her partner about taking an extended amount of time to block traffic when a better course of action could have been taken.

According to Green, Cashion grabbed her arm and berated her. She broke loose from his grip, ran around to her police car, and sat inside. Cashion followed her to the cruiser, squatted down, grabbed Green by her thigh and arm, and began violently shaking her as if he was trying to pull Green out of her cruiser. Green later characterized the incident as Cashion touching her “inappropriately on my upper thigh and my vagina.” Green’s partner, who was sitting in the car at the time of the incident, corroborated Green’s version of events.

An internal affairs investigation concluded that Green’s assault allegation was unfounded. Multiple employees of the Department were interviewed to produce the report, some of whom found it doubtful that Cashion assaulted Green in the manner she described. The report recommended that Green be disciplined for: (1) exhibiting insubordination and disrespect toward her ranking officer when she walked away from Cashion at the scene, telling him that she did not have to listen to him; and (2) failing to truthfully answer all questions while being interviewed by Internal Affairs.

Green was initially issued a five-day suspension, which was reduced to a written reprimand for insubordination. As a result of the same report, Cashion received a reprimand for failing to refer Green’s partner to the employee assistance program.

Green sued under Michigan’s anti-discrimination law, alleging in part that that her reprimand was the product of race and sex discrimination. The Michigan Court of Appeals disagreed, finding that Green could not demonstrate that she suffered an adverse employment action as required to sustain a claim for unlawful employment discrimination.

The Court began with the proposition that “to establish a claim, the employee must establish that he or she suffered an adverse employment action. There is no exhaustive list of what constitutes adverse employment actions. And what might constitute an adverse employment action in one employment context might not be actionable in another employment context; therefore, whether an employee suffered an adverse employment action should be considered in the unique characteristics of the employee’s status.

“In order to be actionable, an employment action must be materially adverse to the employee – that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. In addition, there must be an objective basis for demonstrating that the employment action is adverse because an employee’s subjective impressions are not controlling. Materially adverse employment actions are akin to termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.

“There is no evidence that Green’s discipline altered the circumstances and conditions of Green’s employment at all – let alone materially. Viewing the evidence in the light most favorable to Green, the record reflects that Green’s job duties were altered due to Green’s continuing mental health problems as a result of Cashion’s actions on April 16, 2016. Green was not able to continue her full job duties shortly after the incident and had restricted work capacity. The disciplinary actions taken against Green as a result of the 2017 Internal Affairs report did not alter these circumstances.

“Green also provided no evidence that the reprimand resulted in her being overlooked for or denied a promotion or transfer, prevented her from going back to the job duties she had prior to the incident, decreased her wage or salary, or caused any other alteration in her employment that would not otherwise have occurred. Green’s subjective belief that the disciplinary process was flawed or discriminatory was insufficient to demonstrate that it was an adverse action, absent objective evidence demonstrating this. Thus, even assuming a reprimand such as the one Green received could constitute an adverse employment action, Green provided no evidence that the reprimand here altered her employment with the City in any way, let alone materially.”

Green v. Cashion, 2020 WL 6372366 (Mich. Ct. App. 2020).

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