Even in the Absence of a Stated Policy, Employees’ Failure to Adhere to Employer’s Recommended Conduct Was Non-Retaliatory Reason for Discharge



By Carrie S. Bryant


In McCowen, et al. v. Village of Lincoln Heights, et al., No. 15-3040 (6th Cir. Aug. 21, 2015) (unpublished), the Sixth Circuit Court of Appeals ruled that, notwithstanding the lack of a formal policy, the employees’ failure to follow through on the employer’s suggested course of action provided a non-retaliatory reason for their discharge.

The McCowen case involved the Village of Lincoln Heights Fire Department, which is responsible for putting out fires, and responding to emergency medical calls.  Certified firefighters are allowed to participate in fire runs, and certified Emergency Medical Technicians (“EMT”) can participate in medical runs.  Individuals with both certifications can serve in either capacity.  Approximately 90% of the fire department calls are emergency medical calls.  Plaintiffs Earnest McCowen and Jamil Turner worked as volunteer firefighters for the fire department.  Plaintiffs earned their firefighting certifications, but not EMT certifications.  The department fire chief, a personal mentor to the plaintiffs, promoted them to part-time firefighter.  There were some grumblings amongst the other firefighters who were concerned that the plaintiffs would be paid at the same rate as those who were dually-certified, but not required to go on medical runs.  The fire chief and others recommended to the plaintiffs that they obtain their EMT certification.

Shortly after promoting the plaintiffs, the fire chief filed an internal harassment complaint against the Village of Lincoln Heights manager, which culminated in a lawsuit.  At approximately the same time, plaintiffs began their jobs as part-time firefighters.  Plaintiffs did not register for the first available EMT course; however, they did register for subsequent courses, which did not pan out.  After approximately 10 months, the Village manager learned that plaintiffs had not obtained their EMT certification, and would be unable to do so before the end of the year.  She directed the fire chief to discharge the plaintiffs due to their lack of dual certification.  The fire chief believed that he was asked to discharge the plaintiffs as a means to humiliate him by making him discharge his mentees.

After exhausting their administrative remedies against the Village of Lincoln Heights and the Village manager, the plaintiffs filed suit in district court alleging unlawful retaliation in violation of Title VII and state law.  The plaintiffs essentially argued that they were discharged as a means of retaliating against the fire chief because of his internal complaint and lawsuit.  The defendants sought summary judgment in the matter, which the district court granted because the plaintiffs could not prove that the Village’s stated reasons for discharge were pretext.  The plaintiffs appealed to the Sixth Circuit Court of Appeals.

In order to maintain a retaliation claim, plaintiffs were required to establish, in part, that they engaged in protected activity.  As a threshold question, the Sixth Circuit acknowledged that there was a question whether the plaintiffs could bring a retaliation claim based on the fire chief’s protected activity, and whether the plaintiffs were able to make out a prima facie case.  However, the Court did not decide either issue because it determined that the plaintiffs’ claims failed on other grounds.

The Sixth Circuit found that the Village provided a legitimate, non-retaliatory reason for the discharge, and the plaintiffs failed to establish pretext, for several reasons.  First, the Village’s stated reasons for the discharge decision had a basis in fact because plaintiffs were told to seek certification, and failed to do so.  Also, the plaintiffs conceded that obtaining the additional certification would have allowed them to be a bigger asset to the fire department, being that the certification would have given them the chance to participate in medical runs.  Second, the plaintiffs failed to show that the Village’s discharge decision was motivated by anything other than their failure to obtain the EMT certification.  The Court focused on the fact that, at the time of their termination, all of the other part-time firefighters in Lincoln Heights had their EMT certification.  Also, the Village eventually adopted a dual-certification requirement.  In addition, the Court found that the substantial gap in time between the fire chief’s protected activity and the plaintiffs’ discharge raised doubt concerning any link between to the two events.  Third, the plaintiffs failed to present evidence that similarly situated employees were treated differently from them.

The plaintiffs argued that, at the time of their discharge, there was no policy requiring dual-certification, and, for this reason, the Village’s decision could not be valid.  The Court disagreed and noted that, even in the absence of a formal policy requiring dual certification, and even if the Village merely recommended that the plaintiffs obtain their EMT certification, the plaintiffs’ failure to follow through on the recommendation served as a non-retaliatory reason for their discharge.  The Court further reasoned that the Village’s decision to discharge the plaintiffs was actually a sensible method of addressing the complaints of the other firefighters who took issue with the plaintiffs receiving the same salary as firefighters who actually were dually-certified.  The Court found that the Village’s choice to promote departmental morale served as an additional legitimate reason for the plaintiffs’ discharge.  The Sixth Circuit affirmed the grant of summary judgment.

The lack of a formal policy was not detrimental to the Village in the McCowen case.  However, employers should be aware that there are benefits that can be gained from creating and maintaining workplace policies.  For instance, employment policies set forth the clear delineation of employment requirements and expectations, reinforce a company’s culture, and encourage consistent behavior in the workplace.  For these reasons, employers should consider whether and to what extent formal policies should be created to solidify employment expectations that they want employees to meet.

This article was written by Carrie S. Bryant who is a member of Detroit SHRM’s Legal Affairs Committee and an attorney of the law firm of Dykema Gossett PLLC, located in its Bloomfield Hills, MI office.  She can be reached at (248) 203-0728 or cbryant@dykema.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, are included in the re-post of the article.  August 2015.