Inconsistent Explanations For Transfer Can Be Basis For $300,000 Retaliation Verdict

John McDonough is a lieutenant with the Quincy, Massachusetts Police Department. Since 1990, McDonough has been assigned to command the drug unit.

In 1997, McDonough wrote to the mayor of Quincy questioning a variety of decisions made by Department management. At a meeting with the mayor, McDonough presented a packet of materials highlighting his concerns. One page of the packet included a compilation of allegations that McDonough had heard from other officers about sexual harassment by Department employees against Officer Nancy Coletta. The mayor did nothing with respect to the Coletta matter.

Two years later, McDonough learned that Coletta was planning to file a sexual harassment lawsuit against the City. McDonough did not know Coletta but wanted to help her pursue her claim. He therefore provided another officer who did know Coletta with a copy of the page of allegations he had previously presented to the mayor. The page was eventually given to Coletta.

Three days after the Department confronted McDonough about the Coletta matter, McDonough was reassigned to the day shift. As a result, McDonough lost shift differential and was essentially stripped of his supervisory duties because the officers he supervised worked on a different shift. The Police Chief made statements that McDonough had been transferred because he had “trouble communicating.” When McDonough objected to this characterization, the Chief told him “in everyone’s life a little rain must fall. You can always retire.”

On another occasion, the Chief told McDonough that he placed him on the day shift because several City Council members had indicated they wanted to increase funding for the drug unit and he wanted McDonough available to answer questions from the Council. The Chief later provided a fourth explanation of the basis for McDonough’s transfer – that the transfer was part of a Department-wide reorganization and because he wanted to better integrate McDonough into the Department’s management team.

McDonough brought a lawsuit under Title VII of the Civil Rights Act, alleging that his transfer was retaliation for the assistance he provided Coletta in pursuing an employment discrimination claim. When a jury awarded McDonough $300,000 in damages, the City appealed.

The federal First Circuit Court of Appeals upheld the jury’s verdict. The Court’s decision focused on McDonough’s argument that the asserted justifications for his transfer were a “pretext.” The Court commented that “there is no mechanical formula for determining pretext, and we have recognized that pretext can be proven in many ways. One way is for the plaintiff to show that the employer gave different and arguably inconsistent explanations for taking the adverse employment action.”

The Court found that McDonough’s proof about the Chief’s different rationale for the transfer was sufficient evidence of pretext. As the Court put it, “the shifting explanations provided a basis for the jury to conclude that the reason the City presented at trial was false.”

The Court also observed that “there was testimony from two police captains, who attended management meetings with the Chief just before the transfer, that there was no discussion of restructuring the drug unit. The jury could have concluded that this evidence was inconsistent with the City’s contention that the transfer decision was part of a systemic restructuring process.”

In addition to upholding the verdict, the Court remanded the case back to the trial court for a reconsideration of the trial court’s decision to deny McDonough punitive damages, holding that the Court wrongfully refused to allow the jury to consider McDonough’s punitive damage claim.

McDonough v. City of Quincy, 2006 WL 1719947 (1st Cir. 2006).

This article appears in the August 2006 issue