It’s prolly not retaliation when you fire an employee who masturbates in your parking lot

Or, at least, when you honestly believe that one of your employees is masturbating in the parking lot.

(Unless, of course, you’re like by buddy Fred, who operates Parking Lot Self-Gratification, LLC).

Let’s just pretend that parenthetical remained in my head, ok?

After the jump, it’s a lesson on the law of retaliation involving the case of a school district employee who was fired for allegedly masturbating in a car…in the school parking lot…during school hours. And he claimed that his firing was retaliatory in violation of Title VII of the Civil Rights Act of 1964. 

Allow that to sink in for a sec, then hit jump while I kiss the head of my golden blogging statuette and rub her belly…

DJ, please, pick up your phone. I’m on the request line.

Nah, too subtle. Cue music…

Almost there. Cue music…

Eeek! Too much! We have pure, pristine, HR folks reading this. Cue music…

Yahtzee!

So, not really your ordinary day in the parking lot. [Give it up, Fred!]

In Estate of Carlos Bassatt v. School District No. 1 in the City and County of Denver (opinion here), a District employee was out in the school parking lot in her car, when she looked over into the car next to her and probably wished she’d taken a three day weekend claims to have seen a man, whom she had never seen before, masturbating in a Ford Focus. (Sorry, Ford). It turns out that the man in the Ford Focus, Mr. Bassatt, worked for the District. And the incident occurred during school hours.

After the unfortunate sighting, the District was notified. The police were notified too. The District Attorney decided not to prosecute. Upon learning that the DA would not prosecute, the school’s Principal emailed Mr. Bassatt, “We have the all clear for you to return to West in good standing[;] the investigation did not determine that the allegations were founded.”

However, after sending the email, the District’s Director of Labor Relations told the Principal that the DA’s decision not to prosecute did not prevent the District from taking action against Mr. Bassatt for his alleged misconduct. He also stressed to the Principal the importance of student safety and how the eyewitness was an exemplary employee.

On September 26, the Principal and the Director of Labor Relations met with Mr. Bassatt and his wife, also a teacher at the school. Mr. Bassatt denied masturbating and complained that the accusation was racially motivated and that terminating his employment would be discriminatory.

The next day, the District fired Mr. Bassatt. And Mr. Bassatt later sued, claiming retaliation.

No retaliation because no pretext.

To prevail on a retaliation claim, you need three things: (1) a protected activity, such as a complaint of discrimination; (2) a materially adverse action, such as a firing; (3) and a connection between the two.

The District certainly had a good reason to fire Mr. Bassatt; it believed the eyewitness account that he was masturbating in the parking lot.

So, what evidence did Mr. Bassatt’s estate have that this reason was pretextual? Mr. Bassatt claimed that the District’s investigation was shoddy. However, the appellate court recognized that the “proper inquiry is not whether the inadequacy of the investigation foreclosed Sanchez [the Principal] from the possibility of believing Bassatt. Rather, the relevant inquiry is whether Sanchez subjectively, but honestly, believed that Bassatt had engaged in the misconduct.” And the court determined that the Principal’s belief that Mr. Bassatt masturbated in the car was honest.

But, what about that “all clear” email inviting Mr. Bassatt back to work? The appellate court said that the District was entitled to change its mind:

“We believe that Sanchez only sent the email because he believed that the District Attorney’s decision not to pursue charges bound him from acting against Bassett based on Iams’s allegations. Once he determined he was not bound by the District Attorney’s decision, he reconsidered his options.”

Finally, the appellate court noted that since both Mr. Bassatt and the Principal are Latino, that “undermines any suggestion of pretext.”

District wins.

Takeaways for employers.

Hmmm…I’m gonna say that the employer was fortunate here for a few reasons:

1. In retaliation cases, don’t count on a “we’re both [insert protected class]” defense. In a disparate treatment case, where the plaintiff and the decisionmaker are in the same protected class, there is a body of case law concluding the decisionmaker would not single out one of his/her own. But in a retaliation case?!? I’ve never heard of that. Because it’s the not the protected class that’s at issue at that point, it’s the response to an employee complaint. Indeed, the case upon which the 10th Circuit relied is an age discrimination case, not a retaliation case.

2. Shifting reasons for termination indicate pretext. First the District gives the all-clear and then changes its mind. If you do that, don’t count on being as lucky. (Although in the District’s defense, it appears that the 180 was consummated before Mr. Bassatt complained about discrimination. And it appears that the District concluded that Mr. Bassatt had masturbated in the car before the DA decided not to prosecute).

3. Time is on your side. Generally, the old maxim of “hire slow, fire fast” holds true. But firing fast right after an employee complains of discrimination is generally a good recipe for a retaliation trial.