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Hazing complaint not the but-for cause of employee’s constructive discharge

By Ronald Miller, J.D.

In this Title VII retaliation claim, the question was not whether an employee’s complaint about a racially charged hazing incident was a but-for cause of his constructive discharge, but rather whether the protected activity was the but-for cause of the adverse action.

The Seventh Circuit agreed with a district court’s finding that no reasonable trier of fact could find that a battalion chief’s reporting of a racially charged hazing incident aimed at a Mexican firefighter was the “but-for” cause of the battalion chief’s constructive discharge. The appeals court noted that the battalion chief told members of his battalion that management was monitoring his performance before the hazing incident, and the fire chief’s criticism of his performance also began before the incident. Thus, the appeals court concluded that no reasonable jury could find the causation required in a Title VII retaliation case (Mollet v. City of Greenfield, June 13, 2019, Bauer, W.).

Hazing incident involving Mexican firefighter. At the end of each shift firefighters stow their gear and bedding. When one fails to do so, other firefighters sometimes prank the offender. On February 17, 2012, a firefighter of Mexican descent forgot to stow some of his gear, and the firefighters in the following shift hung items from the ceiling and posted a paper sign with a Mexican flag printed on it with the words “Border Patrol” written beneath it. The Mexican firefighter did not file a complaint after the incident, but another firefighter who found the incident discriminatory reported it to her superior officer, who reported it to the battalion chief.

The battalion chief then emailed the fire chief and assistant fire chief to inform them of the incident, who asked the battalion chief to investigate the incident. Although he said he would rather not investigate the incident himself, the assistant chief stressed that he did not want to hand the issue over to those under whose watch it may have occurred. A firefighter eventually took responsibility for the incident and four individuals were disciplined.

Criticisms of job performance. In the following months, the fire chief and assistant chief were critical of the battalion chiefs’s performance. In March 2012, a month after the incident, they criticized his performance in checking off probationary firefighters on certain tasks; on April 12, the assistant chief sent the employee an email critical of his leadership skills. The following day, the assistant chief took over the lead of the rapid intervention team training. The battalion chief was later removed from his position overseeing the firefighter internship program following a snafu concerning a former intern.

On August 10, the fire chief and assistant chief met with the battalion chief, criticized his communications skills, and asserted that he had criticized them to his fellow firefighters. On August 31, the fire chief criticized him for issuing commendation letters to public works employees without notifying him. In November, the chief criticized him because an EMT that he had trained failed to notify the police of a patient’s injuries when it appeared they were the result of domestic violence.

Constructive discharge. The battalion chief later applied for a position with another fire department. On February 4, 2013, he received a conditional offer of employment and four days later met with the fire chief and assistant chief, who indicated that he would be demoted if he did not take the new position. On February 19, he informed the chief that he was going to accept the job offer, which was contingent upon his passing a physical and psychological exam, but he then received a letter from the chief accepting his resignation. He told the chief he would not resign until he met the contingencies. On February 28, the chief responded that his employment had terminated on February 24. The battalion chief ultimately was placed on paid leave until he submitted his letter of resignation on March 23. He began his employment with the new fire department on March 25.

On August 25, 2016, the former employee filed suit alleging that he was retaliated against for opposing discrimination, specifically that he was treated poorly and forced to resign as retaliation for complaining about the hazing incident. Granting summary judgment, the district court found that no reasonable trier of fact could find that reporting the hazing incident was the “but-for” cause of the constructive discharge.

Retaliation claim. The district court found that the battalion chief failed to provide evidence that would lead a reasonable jury to find a causal connection. Thus, the appeals court addressed only the issue of causation.

Causation. The battalion chief asserted the conditions at the fire department rapidly deteriorated after he complained about the hazing incident. He argued that this showed that his complaining was a but-for cause of his constructive discharge. However, the Seventh Circuit observed that he misconstrued the Supreme Court’s ruling in Univ. of Texas Southwestern Medical Ctr. v. Nassar . Under Nassar, Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

Thus, the question in this case was not whether the complaint about the hazing incident was a but-for cause of the adverse action, rather whether the protected activity was the but-for cause of the adverse action. In other words, would the battalion chief not have been constructively discharged if he had not complained about the hazing incident?

Miserable at work. The battalion chief acknowledged that he was miserable at work once the new fire chief was appointed in November 2011, three months before the hazing incident. Additionally, he told members of his battalion that management was monitoring his performance before the incident, and the fire chief’s criticism of his performance also began before the incident. There was also evidence that both the fire chief and assistant chief responded promptly and positively to his complaint about the incident and agreed that the conduct was unacceptable. Further, they disciplined four individuals after the investigation was complete.

Contrary to the battalion chief’s assertion that the fire chief and assistant chief were actually frustrated that he complained of the incident, there was no evidence that they disagreed with him or considered the issue unworthy of investigation. Nor was there any evidence that they were displeased that he brought the issue to their attention. The court was also not swayed by the argument that the timing of the fire chief’s and assistant chief’s criticism was suspicious because it began less than a month after the hazing incident and continued through his constructive discharge. As such, the district court decision was affirmed.