Many “retaliation” cases follow the same general structure. First, the employee must present a prima facie case by showing that (1) he engaged in an activity protected by the First Amendment, (2) he suffered an adverse employment action, and (3) the protected conduct was a “substantial or motivating factor” in the employer’s decision to take the adverse employment action.

The employer can rebut the employee’s prima facie showing by proving that it had a legitimate, non-retaliatory reason for its decision. The employee can then rebut the employer’s explanation by showing that the employer’s explanation was a “pretext” for discrimination.

A Minnesota case involving two terminated deputy sheriffs illustrates the type of evidence necessary to show that the employer’s explanation was a “pretext” for discrimination. Alexander Graham and Joseph Miller campaigned for the incumbent Sheriff, Bob Fletcher. Fletcher lost the election to Defendant Matthew Bostrom. Before Fletcher left office, he hired Graham and Miller as deputy sheriffs.

Within weeks of Bostrom taking office both deputies were terminated without explanation. The two then sued Bostrom, claiming they were fired in retaliation for supporting Fletcher in the election, in violation of their First Amendment rights.

Bostrom filed a motion seeking judgment in his favor, arguing that the deputies had not submitted enough evidence to show that his termination decision was “pretextual.” Bostrom contended that the deputies were terminated due to facts uncovered during their background investigations, not for their political activities. Bostrom contended that the background investigations were not complete by the time he took office, and that the completed investigations contained “derogatory” information.

A federal court allowed the lawsuit to proceed. The Court cited the following evidence as potentially supporting a “pretext” argument: “The deputies assert that their background investigations had already been completed when they were hired, and thus Bostrom had no reason to investigate them to begin with. And even if their background checks were incomplete, there were nine other probationary deputies with incomplete background checks who were treated differently than them. For example, the deputies were the first to be investigated even though other deputies’ probationary periods were ending much sooner than theirs (and would therefore appear more urgent).

“The deputies’ investigations were completed in just ten days, while all of the other investigations were not completed for months. In addition, the other deputies who were investigated were afforded the opportunity to sit down with the investigators and explain their backgrounds and none of them was fired. Each of these discrepancies casts doubt on whether Bostrom’s reason for terminating the deputies was legitimate. Indeed, the deputies offer testimony of two individuals who have worked in the Sheriff’s Office that the additional investigation done on the deputies was uncommon or unique.

“Finally, the deputies submit evidence that other deputies who were retained by the Sheriff’s Office also had criminal histories and/or negative psychological evaluations like the deputies. There is adequate evidence from which a reasonable jury could conclude that the deputies’ background investigations were merely a pretext for terminating them.”

Miller v. Bostrom, 2013 WL 460634 (D. Minn. 2013).

The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.

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