Sleeping Dispatcher Allowed Trial On Retaliation Claims

Written on 07/09/2021
Will Aitchison

Denise Watkins, who is African-American, was a shift supervisor for the St. John the Baptist Parish Sheriff’s Office in Louisiana. She reported to Lieutenant Marshall Carmouche, who reported to Sheriff Michael Tregre.

On January 30, 2018 Carmouche commended Watkins and three other dispatchers for superb work. He recognized Watkins’s performance in an email to Sheriff Tregre, explaining that teamwork in the 911 Department had led to an arrest.

Just ten days later, however, Carmouche counseled Watkins about her poor performance. He told Watkins during the counseling that she “needed to do a better job in supervising her personnel and do a better job overall.” By way of examples, he addressed Watkins’ sleeping on the job, missing license plate recognition hits, making personal phone calls while on duty, and failing to ensure that emergency units promptly were dispatched. No disciplinary measures were taken.

On February 20, Watkins gave Carmouche and Baker a doctor’s note. The note said that “due to diagnosis of anxiety, Watkins requires three 24-hour shifts off and free of responsibility per week.” Two days after receiving notice of Watkins’s medical condition, Carmouche filed a disciplinary review board request, seeking review of the charges against Watkins. He charged that Watkins had engaged in “conduct and work performance unsuitable for an employee of St. John the Baptist Sheriff’s Office.”

Carmouche identified five infractions, alleging that Watkins: (1) instructed dispatchers under her supervision that a license plate recognition hit was not valid when it was valid; (2) failed to ensure that emergency medical services were dispatched to an accident with injury within a reasonable amount of time; (3) failed to remove a recovered gun from the National Crime Information Center database after being advised that the gun was recovered; (4) made excessive personal phone calls while on duty; and (5) continued sleeping while on duty after being counseled against doing so. Most of these infractions had occurred days or even weeks before the medical leave request. Ten days before the request, Carmouche had counseled Watkins about most of these infractions, and he neither took, nor indicated, further disciplinary action.

On March 1, the disciplinary review board convened. Although Carmouche’s request to the review board identified five infractions, the board itself reviewed only one – sleeping on the job. The board unanimously recommended that Watkins be fired, and Tregre approved the recommendation, firing Watkins the next day, on March 2. Watkins, however, was not the only dispatch supervisor who had been caught sleeping on the job. Joe Oubre, a white male dispatch supervisor, also was caught, but he was not fired; he had only received counseling.

Citing disparate treatment and stressing the suspicious timing of her firing, Watkins sued the Parish under both Title VII and the FMLA. Though the Parish argued that Watkins’s lawsuit should be dismissed, the federal Fifth Circuit Court of Appeals ruled that Watkins had submitted enough evidence to warrant a jury trial.

The question for the Court was whether Watkins had submitted substantial evidence that Tregre’s proffered reason for terminating her was pretext for race discrimination. The Court concluded that she had, finding “Tregre’s deposition testimony shows that Tregre treated Watkins worse than Joe Oubre, a similarly situated white male who also was caught sleeping on the job. Whereas Tregre fired Watkins, he merely counseled Oubre. True, Tregre offered, and Carmouche’s disciplinary review board request listed, additional examples of poor performance. But there is a factual dispute as to whether those examples were the basis for the firing decision.

“On the one hand, Tregre testified that he fired Watkins for ‘a variety of deficiencies.’ On the other, a member of the disciplinary review board said that sleeping on the job was the only example of poor performance presented to the board. In this posture, we cannot weigh that evidence or resolve that dispute in Tregre’s favor, so we assume that Watkins was fired for sleeping on the job. Because Joe Oubre was counseled for the same offense, we conclude that there is a genuine dispute of material fact on the question whether Tregre’s proffered reason for firing Watkins is pretext for race discrimination. For much the same reason, the Court found that Watkins was entitled to a jury trial on her FMLA claim.”

Watkins v. Tregre, 2021 WL 1826269 (5th Cir. 2021).

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