Officer’s retaliation claims survive

A Richmond police officer’s allegations that he was retaliated against after complaining about being denied a promotion for discriminatory reasons have survived the city’s motion to dismiss.

The Eastern District of Virginia found the officer had sufficiently alleged a violation of the Age Discrimination in Employment Act, or ADEA, as well race and national origin discrimination and retaliation under Title VII of the Civil Rights Act.

The court rejected the city’s argument that plaintiff suffered no adverse employment action.

“Because [the plaintiff] sufficiently pleads that race, national origin, and age served as the basis of RPD’s decision not to promote [him] to Acting Sergeant, [his] discrimination claims survive RPD’s motion,” Senior U.S. District Judge John A. Gibney Jr. wrote. “[His] retaliation claim also survives because [he] sufficiently alleges that RPD took materially adverse action against him for raising discrimination claims.”

Gibney’s May 13 opinion is David v. City of Richmond Police Department (VLW 022-3-208).

Denied promotion

Naitraj David was a master patrol officer, or MPO, with the city of Richmond Police Department, or RPD, and had served since 2007.  David is an Asian American of Trinidadian-Indian descent who is over the age of 40.

In November 2019, RPD needed an acting sergeant, a temporary assignment with additional pay that is only available to MPOs. David and another officer, George Banks — an African American man also over the age of 40 — were the only two MPOs qualified for the position.

Even though David had been acting sergeant eight times, RPD Captain Daniel Minton chose a white officer under the age of 40 who was not an MPO.

David complained to Minton, who told him the selection was made to assess the white officer’s performance and determine if he was qualified to be a permanent sergeant. Minton also said that RPD human resources found that the officer’s appointment was not discriminatory.

In December 2019, David complained about the promotion and the discriminatory terms and conditions of his employment to senior RPD leadership, which opened a human resources investigation the following month.

The investigation determined that the selection of the white officer as acting sergeant had violated RPD policy but was not discriminatory.

David filed a charge with the Equal Employment Opportunity Commission, or EEOC, and received a right to sue letter.

Retaliation and discrimination

David alleged eight instances, beginning in May 2020, in which Sgt. Jeremy Nierman retaliated against him for complaining about discrimination to RPD and the EEOC.

First, David alleged Nierman showed little concern for his safety and failed to properly equip or support him and his partner when they were assigned to respond to protests in Richmond during the summer of 2020.

David described how Nierman ignored an incident where a junior officer took his keys and tried to provoke a fight, falsely claimed that David and his partner were out of their designated patrol area, and told David after he filed his EEOC charge that he wanted to “take David’s stripes.”

David also alleged three other incidents in 2020 where Nierman threatened to discipline him for losing a report, allowed a junior officer to take his car and asked a new MPO to assist with rollcall instead of David or Banks.

In June 2021, David was formally reprimanded after failing to appear in Juvenile and Domestic Relations Court, which he claimed RPD has never done before.

In addition to the alleged retaliation, David claimed that RPD discriminated against him based on his race and national origin by promoting an unqualified white officer to be acting sergeant, and discriminated against him on the basis of age by promoting a younger officer instead of David.

RPD moved to dismiss and argued that David had pleaded insufficient facts demonstrating discrimination.

The court disagreed.

Gibney found that David had plausibly alleged a reasonable inference of discriminatory racial bias with RPD’s selection of “a white officer who lacked eligibility for the Acting Sergeant position — over two minority MPOs, both of whom were eligible for the position.”

Further, the judge said RPD’s selection of the white officer caused David no pecuniary loss but it denied him a salary increase and harmed his opportunities for permanent promotion, adding that “[a]n employee’s opportunities for promotion and additional pay qualify as terms or conditions of employment.”

Gibney explained that, under the ADEA, a plaintiff must show that they are over 40 years old, suffered an adverse employment action, performed their job in accordance with the employer’s expectations and the employer selected an individual younger than 40 for a promotion.

RPD argued David did not suffer adverse employment action. But Gibney disagreed, pointing to his earlier determination that the loss of a salary increase and promotion opportunities were adverse employment actions.

Protected activities

To plead a Title VII retaliation claim, “a plaintiff must plausibly ‘allege facts establishing [1] that he engaged in a protected activity, [2] that his employer took an adverse employment action against him, and [3] that … a causal link [exists] between those events,” Gibney said.

The judge found David engaged in protected activities when he complained to RPD and filed his complaint with the EEOC.

To satisfy the second element, “‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,’” Gibney noted.

“This means that the plaintiff must suffer ‘significant,’ not just ‘trivial,’ harm,” he added.

Citing case law that provides “an employer’s retaliatory creation of a hostile work environment” was a materially adverse action, Gibney said that “‘retaliatory work assignments’ constitute ‘a classic and widely recognized’ example of ‘forbidden retaliation.’”

The judge cautioned that “materially adverse actions do not include ‘petty slights, minor annoyances, and simple lack of good manners.”

Here, Gibney said that, “viewed in isolation, five of the instances involving Nierman do not amount to materially adverse action” because David did not allege harm or collateral consequences stemming from them.

But Gibney found that Nierman’s threat to “‘take [David’s] stripes’ plausibly constitutes a threat of possible termination if David continued to pursue his discrimination claims.”

The judge also found that David plausibly suffered harm to his professional reputation when Nierman accused him of being outside his patrol area.

And even though David did not allege he suffered collateral consequences as a result of his formal reprimand, Gibney found that he sufficiently pled disparate treatment because RPD historically did not reprimand officers for failing to appear in court.

“Moreover, the five instances involving Nierman that do not amount to materially adverse action on their own may demonstrate retaliation when viewed collectively, as they all occurred within a five-month time span, and at least one — Nierman’s failure to intercede when [an officer] tried to provoke David — caused him humiliation,” Gibney held.

The judge then found David satisfied the causation element because the retaliation began within two months after RPD concluded its investigation and continued for a year after David filed with the EEOC. Additionally, RPD didn’t dispute knowledge of David’s complaints.

“A close ‘temporal proximity’ between the protected activity and retaliatory conduct also sufficiently establishes causation,” Gibney concluded.