Grudge Match

People can hold grudges for a long time. But when a manager is holding a grudge against an employee, how long can that grudge continue?  Well, in one case, a manager held a grudge against an employee for 11 years. This case involved a former firearms instructor for the sheriff’s department, who sued the former sheriff for retaliation and age discrimination. Here is the story of what the sheriff’s department did right, despite the bad blood between the two men.

Retaliation & Age Discrimination

To set the scene, employees can bring a claim of retaliation against their employers when they believe an employer took adverse action against them based on protected conduct such as making a complaint of discrimination. For federal government employees, the First Amendment protects certain free speech rights. This means that a government employer may not retaliate against the free-speaking employee in a manner that would likely deter a reasonable person from engaging in similar protected speech. Political speech, including expressing a preference for or against a candidate for public office, is protected speech for government employees. The other law that came into play in this case is the Age Discrimination in Employment Act (ADEA), which prohibits workplace discrimination against, and harassment of employees aged 40 and over based on the employee’s age.

A Politically Motivated Grudge

The grudge between the sheriff and the firearms instructor began in 2006, when the sheriff first ran for elected office, but the firearms instructor did not support the sheriff. The sheriff won his first election and the two elections that followed, never with the enthusiastic support of the firearms director. This lack of support irked the sheriff, and indeed, during the litigation, three witnesses testified that the sheriff had long wanted to remove the instructor dating all the way back to the sheriff’s initial campaign. 

Rather than terminate the instructor, though, the sheriff simply eliminated the position of “firearms instructor.” The now-former firearms instructor was told he would be reassigned, subject to a pay decrease, and another officer—a man four years younger than the former instructor—would be put in charge of the shooting range under a different job title.  Immediately after making these changes, the sheriff left office.

Political Retaliation?

So did the sheriff retaliate against the firearms instructor due to the instructor’s lack of political support? The court said no. The court recognized that the firearms instructor provided direct evidence of discrimination. He found witnesses who told the court the firearms instructor’s demotion was explicitly “politically motivated” and a “last-ditch effort to get even.” But, despite the clear evidence of discrimination, the court reminded the firearms instructor that the relevant question was whether he would have been demoted even if the sheriff didn’t hold a grudge.

Why was the answer no? After the firearms instructor claimed retaliation and age discrimination, the new sheriff had her department conduct two independent investigations into the firearms instructor’s management of the shooting range. Both investigations revealed a pattern of deficient training and management—neutral reasons supporting a change in shooting range management. She concluded that the firearms instructor routinely gave preferential treatment to some officers over others, creating an atmosphere of division. She told the court, “I need someone that can bring people together and treat people fairly.”  Moreover, the firearms instructor provided no evidence opposing the allegations of preferential treatment and deficient training. Therefore, the court concluded that he “would have been removed” even if there had been no “improper motivation.”

Age Discrimination?

The firearms instructor, at the time of his demotion, was 59. He was replaced by another male, aged 55. While the instructor was within the class of people protected by the ADEA, so too was his replacement. The court determined that the firearms instructor did not suffer discrimination due to his age. The court stated that an age difference of under 10 years is generally not enough to prove a claim of age discrimination. This determination was bolstered by the fact that his replacement was also in the class protected by the ADEA. Therefore, the instructor’s demotion at age 59 alone was insufficient to find the sheriff’s department engaged in age discrimination. The instructor had no other evidence of age-based discrimination, and so the court dismissed his claim of an ADEA violation.

Lessons Learned

People in a workplace do not always get along. But companies can put safeguards in place to ensure fair, consistent, and legally compliant treatment, and avoid actions based on personal vendettas in the workplace. Here, the court found that there was direct evidence of retaliatory behavior by the former sheriff against the firearms instructor. But the new sheriff had the foresight to conduct two independent investigations, allowing her to adequately show there were neutral reasons for his removal regardless of the former sheriff’s grudge. Finally, the sheriff replaced the firearms instructor with a qualified candidate who happened to be close in age the instructor, defeating the instructor’s ADEA claim. Thus, the employer’s procedures to ensure that employment decisions were valid and supported by legitimate reasons (both the former instructor’s removal and his replacement by a qualified candidate) saved the day.

Maria Drouhard
Maria Drouhard

Foulston Employment Law Attorney