Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

"sick and tired" EEOC retaliation Title VII
Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee.  Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017).  Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit.  When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight.  Immediately after dispatching officers, she took a personal phone call.  A 911 operator attempted to inform Mathews that a weapon was reported at the scene.  But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams.  Williams transferred Matthews to a Traffic Unit while the Department conducted  an investigation of her failure to update the officers.  During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints.  Matthews testified that Williams had her EEOC complaints on his desk during the meeting.  Matthews had filed:  (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams.  That  Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints.  Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason.  The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board.  Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation.  For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.