Retaliatory Supervisor + Innocent Decider = Liability

 

Employees who stand up against discrimination, or who blow the whistle on other misconduct, often suffer retaliation.

If a supervisor personally retaliates against a whistleblower by firing or punishing them, that’s one thing. But what happens when someone farther up the chain makes the official decision to punish? Someone without an established motive to retaliate against the employee?

How can that victim of retaliation hold the company responsible? If the decision-maker was “innocent,” does the employer get off the hook?

Not automatically, according to the U.S. Court of Appeals for the Fifth Circuit (the appellate court that reviews federal court decisions from Texas).

The Fifth Circuit’s ruling came in the case of Zamora v. City of Houston.Houston Police Department Christopher Zamora, an officer with the Houston Police Department, claimed that he was retaliated against by the City. He claims he was punished by HPD for joining a discrimination lawsuit brought by his father, Manuel, and other HPD officers against the City of Houston.

During that discrimination lawsuit, Manuel filed a complaint with HPD’s Internal Affairs Division (IAD) that 3 supervisors committed misconduct by lying under oath when they testified in his lawsuit against the City. By the time IAD finished its investigation, the supervisors had turned the tables and convinced IAD that Zamora was the liar, not the supervisors. IAD believed the 3 supervisors instead of Zamora or his dad, and decided to suspend Zamora for 10 days.

Zamora alleged that he was retaliated against for joining his father’s discrimination lawsuit. He claimed that the Code of Silence was at work – an unwritten rule amongst police officers that prohibits an officer from reporting misconduct by a fellow officer. An officer who breaks the code of silence might face anything from being shunned around the department, losing back-up support while on duty, or getting suspended, demoted, or fired. (Butler & Harris has represented police officers who faced retaliation for breaking the Code of Silence. For one example, see the case of Sharp v. City of Houston.)

But the 3 supervisors who were upset with Zamora for breaking the Code were not the ones who suspended him. That decision was made by a Lieutenant who had no knowledge about Zamora or his work performance. Still, the Lieutenant’s decision was entirely based on what the 3 supervisors said. And every City official who reviewed the suspension followed suit. They all relied wholly on the version of events supplied by the 3 supervisors.

The Fifth Circuit held that it was reasonable for the jury to decide that the 3 supervisors wanted to retaliate against Zamora, convinced the IAD to drop its investigation of whether they had lied and instead focus on their claims that Zamora had lied. Their desire to retaliate is what led to the lieutenant’s recommendation to suspend Zamora, the disciplinary committee’s acceptance of that recommendation, and the rubber stamp it got by the Chief of Police.

Even though the supervisors with an illegal motive did not make the “official” decision, they had such a strong impact on the outcome that they tainted the official decision-makers. The illegal motive of the supervisors became the illegal motivation of the City.