Police officer’s discipline not based on bias complaint

Where a Fairfax County police officer alleged his job duties were transferred after he filed a complaint about sex and age bias, but the record showed the transfer was the result of a complaint made against him by another officer, the county was granted summary judgment.

Background

Peter Massaro alleges that, after he filed a complaint about the Fairfax County police department’s decision to promote another officer over Massaro, the department retaliated against him in violation of (i) Title VII of the Civil Rights Act, (ii) the Age Discrimination in Employment Act, or ADEA, and (iii) the First Amendment. At issue now are the parties fully briefed and orally argued cross motions for summary judgment.

Title VII/ADEA

To establish a prima facie case of retaliation under either Title VII or the ADEA, “a plaintiff must show (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” There is no doubt that Massaro engaged in protected activity when he filed a complaint that he was not promoted due to sex and age discrimination. And Fairfax County concedes that Massaro’s disciplinary transfer out of the Academy constitutes an adverse employment action.

Massaro alleges additional adverse employment actions, including a failure to investigate Massaro’s September 2018 complaint, orchestrating a complaint filed against Massaro by Loriann LaBarca and the various disciplinary measures the department took against Massaro in the course of investigating LaBarca’s complaint. These additional alleged adverse unemployment actions are unpersuasive; they find no support in the factual record assembled for summary judgment.

Although Massaro has little trouble establishing the first two elements of a prima facie case of workplace retaliation, Massaro cannot establish the third element—the causal relationship between Massaro’s protected activity and his transfer of job titles—as the evidence does not show a causal relationship between Massaro’s protected activity and the adverse employment action Massaro suffered. The parties have developed an extensive factual record during discovery, and that record discloses no connection between Massaro’s September 2018 complaint and the May 2019 investigation and disciplinary action Massaro suffered. To the contrary, the record is replete with information showing that the May 2019 investigation stemmed from Massaro’s conduct with LaBarca in May 2019 and that the department’s disciplinary measures only involved a review of Massaro’s May 2019 conduct— the conversation with LaBarca.

Massaro may also prevail by showing that he suffered an adverse employment action reasonably soon after he filed his complaint against the police department. But the record reflects that substantial time elapsed between the protected activity, which occurred in September 2018, and the adverse employment action, which occurred in May 2019. The Fourth Circuit recently observed that “courts within our Circuit have found that shorter lapses of time similar to the three-month period at issue in the case before us are insufficient to infer a causal relationship without other evidence of a causal link.”

First Amendment retaliation

The Fourth Circuit has explained that the third prong of a First Amendment retaliation claim, the causation requirement, is “rigorous in that the protected expression must have been the but for cause of the adverse employment action alleged.” To establish a prima facie case of First Amendment retaliation and survive summary judgment, a plaintiff “must put forward evidence beyond speculation that provides a sufficient basis for a reasonable inference of causation.”

As with his Title VII and ADEA claims, Massaro’s First Amendment claim must fail because the record contains no evidence to warrant a reasonable jury to conclude that Massaro’s protected speech was a substantial factor in the police department’s decision to discipline Massaro.

Plaintiff’s motion for partial summary judgment denied. Defendant’s motion for summary judgment granted.

Massaro v. Fairfax County, Case No. 1:20-cv-0929, Feb. 15, 2022. EDVA at Alexandria (Ellis). VLW 022-3-069. 16 pp.