Female officer in Syracuse can prove gender discrimination

The Second Circuit does not often vacate the grant of summary judgment in disparate treatment employment discrimination cases. It does so here, finding that the Syracuse Police Department discriminated against a female police officer by suspending her for insubordinate behavior.

The case is Dotson v. City of Syracuse, a summary order issued on February 27. Dotson is the female officer. (She has prevailed against the City in prior gender discrimination cases). During a brief interaction with superiors, Dotson complained about parking arrangements. When a sergeant told plaintiff to return to her desk, plaintiff told the sergeant to butt out, that she was speaking with someone else. Eventually plaintiff complied, though the parties dispute whether anyone raised their voices. Management wanted her fired for insubordination, but she eventually got a five-day suspension, which an independent arbitrator vacated, ordering the department to reimburse plaintiff for back pay.

Plaintiff has a disparate treatment claim because she was treated differently than male officers who also engaged in misconduct. The test is whether she was "similarly situated in all material respects to individuals with whom she seeks to compare herself," as per Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000). About two years after all this went down, a male officer was only issued a written reprimand and lost one furlough day for disobeying a direct order. Plaintiff was comparable to this male officer because, while he violated the department's "courtesy" rule, his misconduct was still similar to plaintiff's, as he failed to comply with a directive. While the City argues that plaintiff and the male officer are not "similarly situated" because different labor agreements governed their employment, they still had to comply with the same workplace rules of conduct. In the end, a jury must decide if plaintiff's discipline, "which stemmed from an unusually (and suspiciously) harsh recommendation by [a superior officer], was motivated in part by discrimination against women.

In addition, other male officers received lesser discipline or "arguably similar behavior," as one officer lost only three days' furlough for disobedient behavior, and another officer violated a direct order to stop trying to influence the course of an investigation by an outside agency. Yet another officer lost only two days' furlough for not being "courteous and respectful" while "being counseled for his handling of a call by a supervisor," and act of insubordination. All this misconduct is materially similar that the jury may conclude that plaintiff was singled out for harsher discipline. It looks like the trial court, in granting summary judgment, was over-analyzing whether all this misconduct was sufficiently similar to each other. But we let the jury over-analyze these cases in close calls.

We also have some sexist comments by defendants, further bolstering plaintiff's case. The Second Circuit (Wesley, Cabranes and Calabresi) says these are not stray remarks, the usual defense when ugly comments surface in discovery. One of the supervising officers, Sweeny, said in 2004 that "The broads can't work together. They'll just be calling for back up all the time and [there won't be] cars covering the other territories." Sweeny continued to separate the female officers until a supervisor "told him not to make any changes to the officer schedules unless absolutely necessary." And, in 2012, during roll call, Sweeny "verbally harassed a subordinate black female police officer with the demeaning comment 'she's angry. Come here you angry black woman.'" What is more, in 2010, another supervisor, Kleist told a police captain "to not hire any more females as they are the ones he's having problems with" and that "another female would just add to the problems he's having with the female parking checkers and that they would teach the new one how to avoid work." While the district court thought these were all "stray remarks," the Second Circuit does not see it that way. The Court of Appeals reasons:

The district court labeled this behavior as “stray sexist remarks” and explained that, “[a]t most, [Dotson’s] evidence shows that Defendants Sweeny and Kleist harbored a general bias against women, but not that this attitude affected the decision to discipline her for insubordination.”

This conclusion is not supported by the timing of the conduct. Kleist’s sexist remarks occurred after Dotson’s suspension. In light of the larger context, a reasonable juror could infer that when he reported a female employee for insubordination following a short disagreement over parking, Kleist harbored the same views that he expressed explicitly just two years later. Moreover, Sweeny’s remarks came both before and after Dotson’s suspension, and the 2012 comment evinces precisely the sort of bias that is allegedly at issue here: disproportionate intolerance for (perceived) anger and disrespect from a female subordinate. Again, a reasonable juror could infer that Sweeny’s views influenced his treatment of Dotson, particularly in light of the differences in how Sweeny treated arguably similarly‐situated male employees.