Please ensure Javascript is enabled for purposes of website accessibility

Jury to decide if city retaliated against officer

Virginia Lawyers Weekly//September 13, 2021

Jury to decide if city retaliated against officer

Virginia Lawyers Weekly//September 13, 2021

Where a police officer was allowed to wear running shoes as an accommodation for her disability, but that permission was revoked nine days after she asserted that she had been denied equal pay as acting sergeant on account of her gender, a jury will decide if permission was revoked in retaliation for her asserting her rights under the Equal Pay Act.


The magistrate judge filed a report and recommendation, or R&R, that recommends granting in part and denying in part the defendant’s motion for summary judgment. Both parties submitted objections.

Plaintiff’s objections

The plaintiff objects to the R&R’s recommendation that summary judgment be granted as to Count One, which alleges that the defendant violated the Americans with Disabilities Act, or ADA, by failing to provide a reasonable accommodation for the plaintiff’s disability.

In addressing a failure-to-accommodate claim on an employer’s motion for summary judgment, the court must decide whether the evidence, viewed in the light most favorable to the employee, is sufficient to support jury findings that (1) the employee was an individual was an individual with a disability within the meaning of the ADA; (2) the employer had notice of the disability; (3) the employee could perform the essential functions of the position with reasonable accommodation and (4) the employer refused to make such accommodation.

The magistrate judge found that the evidence could support jury findings in the plaintiff’s favor as to each element, and the defendant did not object to these findings. The court has reviewed this portion of the R&R, and, finding no clear error, adopts the factual reasoning set forth therein as being sufficient to sustain the legal viability of a failure-to-accommodate claim. Therefore, summary judgment must be denied as to Count One, and the court sustains the plaintiff’s first objection.

Defendant’s objections

The magistrate judge recommends denying summary judgment as to Counts Two and Three, which assert retaliation claims under the Equal Pay Act, or EPA, and the ADA, respectively. The R&R found that the plaintiff had presented sufficient evidence to support a prima facie case; that the defendant had proffered a plausible nonretaliatory justification for its actions and that the plaintiff had shown evidence that could lead a jury to find that the defendant’s justification was pretextual.

Although the defendant argues that the plaintiff did not show that she experienced an adverse employment action, a jury could find that the defendant’s actions toward the plaintiff “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The defendant also objects to the R&R’s finding that the plaintiff had submitted sufficient evidence of causation. The plaintiff’s evidence shows that she was told she would not be able to continue to wear the running shoes only nine days after she asserted that she had been denied equal pay on account of her sex. This temporal proximity creates an issue of fact as to whether the defendant revoked, and later denied, her ADA accommodation because of the plaintiff’s assertion of her rights under the EPA.

The court also finds that the plaintiff has presented sufficient evidence to support a finding of causation between her protected activity and (1) Captain Hileman’s decision to prohibit the plaintiff from serving as acting sergeant and (2) the lower score on her annual review. The annual review occurred not long after the plaintiff’s second ADA accommodation request.

Although the Dec. 7, 2018, prohibition on serving as an acting sergeant was somewhat temporally removed from the plaintiff’s protected activity, the record also contains evidence that, when viewed in the light most favorable to the plaintiff, could create an issue of material fact as to whether there was a continuing animus against the plaintiff during this time period, particularly by Captain Hileman and other supervisors.”

However, plaintiff has not submitted sufficient evidence to establish a causal connection between her protected activity and the assessment of formal discipline by Chief Drew in December 2019 due to the Riverside fire incident. This discipline was approximately eight months removed from the plaintiff’s last protected activity on April 2, 2019, and involved an isolated incident apart from the other matters of plaintiff’s concerns.

The magistrate judge found that the defendant had submitted sufficient evidence to support a finding that the adverse employment actions about which the plaintiff complains were based on reasons other than retaliation. Neither party objects to this finding, and the court finds no clear error with the R&R’s analysis. The burden now shifts to the plaintiff to present evidence that could lead a jury to find that the defendant’s proffered justifications were pretextual.

A jury could find that the defendant took steps to interfere with the plaintiff’s footwear accommodation not for safety reasons but because the plaintiff had accused her superior of sex discrimination. Finally, although the defendant asserts that the plaintiff’s annual review was not overly negative and was based on an objective evaluation of her performance, the evidence suggests that Captain Hileman influenced her evaluation by telling the plaintiff’s sergeant that the sergeant had given her too high a score.

Defendant’s motion for summary judgment granted in part, denied in part.

Newcomb v. City of Newport News, Case No. 4:20-cv-63, July 13, 2021. EDVA at Newport News (Smith). VLW 021-3-426. 18 pp.

VLW 021-3-426

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests