Las Vegas POA

No Retaliation If Decision-Maker Unaware Of Protected Activity

Written on 09/29/2020
Will Aitchison

Aubrey Lyons is an African-American corrections officer with the Michigan Department of Corrections. After being transferred in 2012 to the Macomb Correctional Facility, Lyons allegedly began to experience various incidents of discrimination by his white supervisors.

Lyons filed his first internal discrimination complaint against the Department in January 2015 in response to being disciplined for violating its computer use policies. Lyons claimed the white investigating lieutenant, James Webster, singled him out by monitoring his computer activity but not the activity of white staff.

In August 2015, Lyons filed another internal discrimination complaint against the Department, this time regarding disparate treatment at a gun range. Lyons’s white supervisor, Sergeant Robert Loxton, denied Lyons’s use of the gun range for recertification while Loxton, around the same time, allowed a white officer immediate use of the range. The Department’s subsequent investigation concluded that the incident was not racially motivated but rather a result of Loxton’s poor communication.

On December 18, 2015, Captain Dale Holcomb referred Lyons for investigation for being inattentive to duty. Holcomb and Lieutenant Gary Kelly were conducting their rounds when, at 2:53 a.m., they observed Lyons sitting in a guard shack “with his eyes closed, motionless, and his head down.” Lyons conceded that his head was down when Kelly and Holcomb approached, but claimed he was adjusting his radio. Given that it was dark inside the shack, Lyons acknowledged that Kelly “may have thought he was inattentive.” Lyons’s disciplinary report stated that he was “observed on video” with his eyes closed and head down.

When he received a one-day suspension for the “eyes closed” incident, Lyons sued, claiming he was the victim of race discrimination. A federal court of appeals turned away the lawsuit.

The Court granted that the one-day suspension “issued Lyons satisfied the low bar for a materially adverse action in the retaliation context because he presented evidence that such discipline on a correctional officer’s record, even when later reduced to a written reprimand, makes transfers and other opportunities more difficult for the officer. However, Lyons’s retaliation claim fails because he did not present evidence that the Department’s Discipline Coordinator, Jennifer Nanasy, the final decision-maker in Lyons’s inattentive to duty discipline, knew about any of his discrimination complaints when she issued his one-day suspension.

“The Department’s general practice was to keep the identity of discrimination complainants confidential, and Nanasy testified at her deposition that she was unaware of Lyons’s discrimination complaints. Her affidavit further provided that she was ‘neither friends nor acquainted with’ any of Lyons’s named supervisors who might have otherwise informed her of the complaints. Lyons does not rebut this evidence and therefore fails to create a dispute of fact as to Nanasy’s knowledge of his protected activity. Without this knowledge, Lyons’s protected activity could not have been the cause of Nanasy’s decision to discipline him.”

Lyons v. Michigan Department of Corrections, 812 Fed. Appx. 305 (6th Cir. 2020).

The post No Retaliation If Decision-Maker Unaware Of Protected Activity appeared first on Labor Relations Information System.