Illegal Retaliation After Captain Protests Order To March In MLK Day Parade

Walter Busby, who is African American, is a captain with the Tulsa Police Department (TPD) in Oklahoma. Busby reported to Major Walter Evans, who is also African American.

On January 13, 2010, Evans called Busby to his office, and indicated that he was “ashamed and embarrassed about the lack of participation of blacks in TPD-sponsored activities, particularly the Martin Luther King, Jr. Day Parade” and informed Busby that Evans would like to see more participation and would like Busby to participate in the parade. Busby did not want to participate in the parade as he believed TPD had not made adequate progress in the area of race relations. Evans told Busby, “Yes, it’s an order. If you are working that day, you will participate and march with the Department.”

Under protest, Busby complied with the directive and participated in the parade on January 18. On March 30, 2010, Busby wrote to TPD Chief Chuck Jordan, alleging that the work environment had become increasingly hostile to Busby following the parade. Eventually, Busby sued, contending (among other things) that Evans had retaliated against him for Busby’s position with respect to the parade.

The Court, siding with Busby, found that “in order to show that he engaged in protected activity, an employee need not prove that the Employer actually violated Title VII. Opposition can be protected even where the Plaintiff is wrong about whether the Employer had actually violated Title VII. It is enough that the Employee had a good faith belief that the conduct he opposed was unlawful under Title VII.

“Busby provided evidence that he believed in good faith, and informed his employer that he believed, that Evans’ order was unlawful discrimination based on race: ‘This document serves as my respectfully bringing to your attention that your order to participate in the parade is illegal. Your stated reason for my participation was based on my race and as such it is illegal. It is also unfair as I am unaware of any other Captain, on-duty or otherwise who has been ordered to participate in this parade.’

“The evidence here established that Busby engaged in protected opposition, by voicing complaints and writing memoranda to Evans and Jordan, asserting racial discrimination. The Court also determines that a reasonable employee would have found Busby’s 2010 performance evaluation to be materially adverse. The evaluation by Evans was the worst that Captain Busby had received in over 30 years on the TPD, and it included serious critiques that Busby had ‘been openly defiant about some assignments and directives given to him by his chain-of-command,’ that he had ‘often been insolent, insubordinate and hostile,’ and that he ‘carefully crafted’ memoranda ‘to offend the target reader.’

“Evans concluded the evaluation by stating that Busby must ‘show marked improvements in the above deficiencies, be willing to demonstrate more flexibility, mutual respect, and acceptance of other viewpoints,’ and that Evans ‘would not recommend a division command for him.’

“The reassignment of Busby to the fourth shift was also motivated by his protected opposition to what he believed, in good faith, was race discrimination. The decision to transfer him to the fourth shift was made soon after the parade. At the time he made that decision, Evans was ‘hurt and disappointed’ because of Busby’s allegation of race discrimination. Based on the evidence at trial, the Court concludes that retaliation was the but-for cause of Busby’s transfer to the fourth shift. While planning to transfer Busby to the fourth shift, Evans recommended to the TPD Chief that Busby not be transferred to another commander, which is circumstantial evidence of retaliatory motive, i.e., that Evans wanted Busby to remain under his command so that he could impose his plan to transfer Busby to the less favorable shift.”

The Court ordered the City to remove Busby’s 2010 evaluation from his personnel file and to “destroy all copies of said document, including but not limited to, all paper copies and versions maintained electronically. The City shall compensate Busby for the 389 acquired vacation hours and 64 hours of sick leave that he utilized from his capped acquired vacation and sick leave accounts as a result of the retaliatory transfer to fourth shift.”

Busby v. City of Tulsa, 2018 WL 555718 (N.D. Okla. 2018).