Text Message Not Basis For Retaliation Lawsuit

Written on 05/13/2022
Will Aitchison

Brad Lamb was a deputy sheriff with the Montrose County Sheriff’s Office (MCSO) in Colorado and was supervised by Deputy Steven Collins. Collins repeatedly made racist remarks in the office, including disparaging comments about Mexicans in front of Deputy Brittany Martinez, who is of Mexican descent. Around November 2014, Lamb told his sergeant that he was offended by Collins’s comments and that he thought the sergeant condoned them. Despite Lamb’s report, Collins’s racist remarks continued. Collins and the sergeant were both eventually subject to disciplinary action for their conduct.

In December 2014, Lamb sent a text from his personal cellphone to Robert Thomas, his close friend and the Chief of Police at the Delta Police Department, where Lamb had previously worked. Lamb texted: “Just wanted to stay in touch. RE­ALLY big mistake coming to work here. Racism, good Ole boy, no professionalism. Let me know if you and Angie are still up for poker.”

Thomas shared Lamb’s text message with an employee at the Delta Police Department who, in turn, shared it with a member of the MCSO. In February 2015, Sheriff Rick Dunlap initiated an investigation based on a report that Lamb might have violated MCSO policies “by contacting another law enforcement agency and communicating defamatory opinions of the MSCO.” A one-day sus­pension resulted.

Over the next several months, Lamb was subject to additional disciplinary ac­tion. In a May 2015 incident involving a person threatening suicide, Deputy Jason Grundy issued Lamb a disciplinary report for insubordination, writing that Lamb “displayed unsatisfactory performance by clearing from a call, then disregarding radio traffic several times and involving himself back into the call without notifying dispatch, other crew members, or his crew supervisor.” Grundy further stated that after Lamb wrote his report regarding the call, Lamb refused to place a “full header” on the report. Lamb allegedly told a coworker that he should have included the header but chose not to because Lamb did not respect Grundy as a supervisor.

About three months later, Grundy reported that Lamb had improperly filed an affidavit without Grundy’s review, al­though Lamb denied that Grundy asked him to review the affidavit. Around the same time, Lamb was also written up for improperly completing two police reports. As a result of these two incidents, Lamb was found to have engaged in unsatisfac­tory performance and insubordination and was fired.

Lamb sued, contending his termina­tion amounted to illegal retaliation under Title VII of the Civil Rights Act. The federal Tenth Circuit Court of Appeals dismissed Lamb’s claim.

The court recounted that “Title VII’s anti retaliation provision (the opposition clause) bars an employer from discrim­inating against an individual who has opposed any practice made an unlawful employment practice by the statute When analyzing such retaliation claims, we apply the three-part test which first requires Lamb to establish a prima facie case of retaliation. To make his prima facie case, Lamb must show that: (1) he engaged in protected activity; (2) he suffered an ad­verse employment action; and (3) there was a causal connection between the protected activity and the adverse action.

“Lamb must establish that his text message to Thomas constituted protected opposition to an unlawful employment practice. It does not. Lamb broadly asserts that his text message – alleging ‘Racism, good Ole boy, no professionalism,’ touched on issues addressed by Title VII. That may be, but the statute requires more. Lamb must show that his text message was aimed at a specific unlawful employment practice. Lamb’s vague text message takes no such aim.

“Lamb’s statement makes no mention of any allegedly unlawful employment practice by the MCSO. In his opening brief, Lamb contends that the text message was protesting ‘the creation of a hostile workplace for Hispanics.’ But his mes­sage to Thomas made no mention of any hostile workplace. The relevant portion of Lamb’s text message amounts to a general statement about the alleged existence of racism and is not directed at any unlawful employment practice by the MSCO. As a result, the text message does not constitute protected activity.”

Lamb v. Montrose County Sheriff’s Office, 2022 WL 487105 (10th Cir. 2022).

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