The Employer's Legal Resource: Mixed Result for African American Police Captain's Title VII Case Against City of Tulsa in Local Federal Court


Walter Busby is an African American police Captain for the City of Tulsa. He has been employed by the Tulsa Police Department ("TPD") since 1981, rising in the ranks throughout his career. Since 1996, he has been assigned to the day shift (at his request). In 2008, he was transferred to TPD's Mingo Valley Division. Major Walter Evans oversaw that division at the time of Busby's transfer and afterwards; Evans is also African American.

In January 2010, Evans directed Busby to march in the Martin Luther King, Jr., Day Parade with the TPD group marching as part of its efforts to engage with the local community. Busby made it clear that he did not want to participate (because he did not think that the TPD had made sufficient progress in areas regarding race relations). Evans, apparently frustrated about the lack of participation of African American officers in TPD-sponsored activities, more forcefully ordered Busby that "if you are working that day, you will participate and march with the department." Busby then requested permission to take leave during the time of the parade, which Evans denied. After the denial, Busby wrote a memo to Evans respectfully bringing to Evans' attention that the order for Busby to march in the parade was illegal because Busby's mandatory participation was based on his race. Under protest, Busby complied with Evans' directive and participated in the parade as in structed.

The following day, Busby reiterated his complaint that he had been treated differently than white Captains (none of whom were ordered to march in the parade, and one of whom received permission to take leave at that time). Shortly thereafter, Busby received a negative mid-term performance evaluation from Major Evans. It was the worst evaluation Busby had received in his 30+ years with the TPD. In it, Evans criticized Busby for being "openly defiant about some assignments and directives given to him by his chain of command" and further noted that Busby "often been insolent, insubordinate, and hostile." Busby's complaints of racial discrimination were prominently identified as a basis for negative ratings throughout the evaluation of his performance.

In February 2010, the TPD announced that it was creating a new shift from 4:00 p.m. to 12:00 a.m., and Evans decided that he would move Busby to the new shift (though that shift reassignment was not announced until May). As a result, Busby was later moved to the evening shift, even though he was the most senior Captain on the force and had requested to stay on the day shift. Evans also claimed that Busby lacked the qualifications to be day shift Captain because such position would involve significant administrative duties and oversight after the TPD's upcoming reorganization. Instead, Evans assigned another Captain who was two months short of retirement to the day shift. Even after she retired, the day shift position was left open and Busby remained on the evening shift. Evans' explanation as to why he did not appoint Busby as day shift Captain apparently made little sense in light of the fact that Busby had previously served as administrative captain and had the re quisite experience Evans claimed to be looking for. As a result of the shift change, Busby did not often see his two young daughters during the week; he was working during the evenings when they were home from school until after their bed time. In order to try and spend any time with his family during the week, Busby was forced to use substantial amounts of his accrued vacation time.

Busby filed suit against the City of Tulsa in federal court, alleging that he was unlawfully discriminated against and retaliated against in violation of Title VII of the Civil Rights Act. Busby sought only equitable relief (not monetary damages); he wanted the negative performance evaluation purged from his record and his used vacation time and sick leave reinstated.

Discrimination Claim. In order for Busby to succeed on his first claim, he must establish (1) that he is a member of a protected class, (2) that he suffered an adverse employment action, and (3) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. The Court found in favor of the City of Tulsa on the discrimination claim, concluding that Busby being directed to march in the parade and being denied two hours of requested holiday leave were not adverse employment actions. The Court explained that "[t]he discrimination provisions of Title VII are limited to adverse actions 'that affect employment or alter the conditions of the workplace.'" Adverse employment actions include "significant change[s] in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, " but do not include "mere inconvenience[s] or an alteration of job responsibilities." Busby being ordered to march in the parade while he was at work, and being denied leave for two hours to avoid marching in the parade, simply did not constitute a significant change in Busby's employment status, benefits, or the conditions of his employment. The Court noted, "[a]t most, these actions were a mere inconvenience or alteration of his job responsibilities – for less than a day."

Retaliation Claim. Busby complains that TPD retaliated against him in two ways: the negative performance evaluation in 2010; and the shift change requiring him to work evenings instead of days. To establish a prima facie case of retaliation, Busby must show that (1) he engaged in protected opposition to discrimination, (2) a reasonable employee would have found the challenged activity to be materially adverse, and (3) a causal connection existed between the protected activity and the challenged action, which may be shown through evidence justifying an inference of retaliatory motive. As to the first prong, it is enough that Busby had a good faith belief that the conduct he opposed was unlawful under Title VII (which was accomplished by his voicing complaints and writing a memoranda to Evans and TPD Chief Chuck Jordan asserting racial discrimination), and he need not prove that the TPD actually violated Title VII in that respect.

As to the second prong, unlike a discrimination claim, recovery under Title VII's retaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment." Rather, Busby must only show that "a reasonable employee would have found the challenged action materially adverse, such that a reasonable worker might have been dissuaded from engaging in protected activity." The 2010 performance evaluation satisfies the foregoing standard; it was the worst evaluation Busby had received in his 30+ years with the TPD and it included serious critiques about his performance, including recommendations from Evans that Busby not be considered for further advancement. The Court found that Busby's forced transfer to the evening shift was also materially adverse because he had young children at home and the transfer caused a hardship and resulted in him spending little time with his family. According to the Court, Busby was &q uot;forced to use substantial amounts of his accrued vacation time, which he had spent years accumulating, in order to maintain some semblance of a family life."

The third prong as to causation requires that the employer's desire to retaliate was the but-for cause of the challenged employment action. Busby satisfied this final element as well. His negative performance evaluation from Evans followed shortly after Busby's opposition to being ordered to march in the parade, which conduct and events were cited multiple times in the evaluation as the basis for Evans' negative findings. The decision to transfer Busby to the evening shift was similarly made soon after the parade, and Evans admitted that he was "hurt and disappointed" by Busby's allegation of race discrimination at the time he made that decision. Further, throughout the timeline of events and course of litigation, Evans offered inconsistent and not credible explanations for moving Busby to the evening shift position, which the Court found to be pretext for his retaliatory motive and actions against Busby.

Although the Court rejected Busby's discrimination claim, it found in his favor on the retaliation claims. It directed the City of Tulsa to purge the negative performance evaluation from Busby's employment record and reinstate him the 389 hours of vacation time and 64 hours of sick leave he utilized during the period of his retaliatory transfer to the evening shift.

By Rebecca D. Bullard,

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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