The need to protect children defeats Title VII retaliation claim
Generally speaking, sexual activity on high-school campuses is frowned upon. Particularly if a teacher or another responsible adult is involved. But what if no student is involved? Indeed, what if only one person is engaged in the activity?
According to the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers), sexual activity on school grounds, even if it’s disputed by the alleged offender, may justify termination because it implicates student safety. Read on to see how a high-school principal dealt with a uniquely uncomfortable situation in such a way that the terminated employee was unable to make his subsequent claims under Title VII of the Civil Rights Act of 1964 stick.
What happens in the car doesn’t stay in the car
In 2007, Carlos Bassatt, who is Puerto Rican, began student teaching at West High School, which is part of School District No. 1 in the city and county of Denver, Colorado. Bassatt signed various agreements and documents before beginning his stint as a student teacher, but because no one from the school board signed those documents, he did not have an employment contract and was not considered an employee of the school district.
Less than a month after he began student teaching, Bassatt left the school, got into his car, and reclined his seat. Shortly after that, Maria Iams, a school district employee, parked next to Bassatt’s car and saw a man masturbating inside.
A report was made to the school’s resource officer, Vincente Damian, who reviewed surveillance video with Iams. She identified Bassatt’s car but was unable to identify the man in the video walking to and from the car. The school’s dean of students identified the man as Bassatt. Damian prepared a written incident report and statement.
The school’s principal, Patrick Sanchez (who is Latino), was informed of the incident the same day. Three days later, Sanchez and Damian met with Bassatt, who denied that he had done anything inappropriate in his vehicle. Nevertheless, he was placed on administrative leave pending a more thorough investigation.
At their meeting, Damian gave Bassatt a summons to appear at the Denver Police Department. Despite the criminal summons, the Denver district attorney ultimately decided not to prosecute Bassatt.
When he learned that no criminal proceedings were in the offing, on September 19—five days after the underlying incident—Sanchez sent Bassatt a letter stating: “We have the all clear for you to return to West in good standing[;] the investigation did not determine that the allegations were founded.” After the letter was sent, the school district’s director of labor relations, Bart Muller, informed Sanchez that the decision not to prosecute did not prevent him from taking appropriate remedial action for the alleged misconduct. Muller emphasized that student safety was paramount.
Thus, on September 26, Muller and Sanchez met with Bassatt. During the meeting, Bassatt admitted he had been reclining in his car, denied that he had been masturbating, and stated that the accusation was racially motivated. He also told Muller and Sanchez that he believed the decision to terminate him was discriminatory. Nevertheless, the school district terminated his student teaching assignment.
After first seeking relief from the Colorado Civil Rights Commission, Bassatt filed a lawsuit against the school district in federal court alleging that his termination constituted unlawful retaliation in violation of Title VII. He also claimed that the district violated his constitutional property rights by firing him.
Bassatt passed away while the trial court was considering his claims. After his demise, his estate maintained the lawsuit. Ultimately, both of the arguments raised by Bassett worked their way to the 10th Circuit.
Retaliation claim fails
Under Title VII, an employer may not retaliate against an employee who opposes illegal discrimination. Because Bassatt had no direct evidence that the decision to terminate him was in retaliation for his complaint about perceived racial bias, the 10th Circuit clarified that his retaliation claim could succeed only if he showed that the stated reason for his firing was a pretext to hide illegal discrimination. According to the court, the school district’s stated reason for terminating him—i.e., engaging in inappropriate sexual activity in the high school’s parking lot constituted a threat to student safety—was a legitimate reason.
Bassatt tried to show that the reason was a pretext in several ways. He argued that the school district’s investigation was inadequate and that the district improperly relied on Iams’ disputed testimony. The 10th Circuit
recognized that an inadequate investigation can raise an inference of pretext.
Nevertheless, Sanchez had met with both Iams and Bassatt before deciding to fire Bassatt. According to the court: “As the principal, [Sanchez] had to weigh numerous competing interests, including the safety of his students. Sanchez’s decision to believe Iams over Bassatt, when there was no direct evidence either way, is not evidence of pretext.” Furthermore, although a more thorough investigation could have been conducted, Sanchez and Muller had interviewed the key people—Iams, Damian, and Bassatt.
Bassatt also tried to establish pretext by pointing to Iams’ inability to identify him in the surveillance video. But the 10th Circuit did not find this argument convincing because he had admitted that he was the person reclined in the driver’s seat of his car.
Bassatt also pointed to Sanchez’s e-mail inviting him back to work, arguing it showed that the principal did not truly believe he engaged in the alleged misconduct. But the 10th Circuit disagreed because the evidence indicated that Sanchez sent the e-mail only because he incorrectly believed that the district attorney’s decision not to pursue criminal charges prevented him from taking any disciplinary action against Bassatt.
Finally, the 10th Circuit noted that the fact that Sanchez himself is Latino and helped found an organization advocating for Latinos in the field of education militated against Bassatt’s pretext claims. The 10th Circuit concluded that Bassatt could not show that the school district’s stated reason for his discharge was a pretext for discrimination. Consequently, his claim for retaliation had to fail.
Constitutional claims also rejected
Public employees can bring claims based on the U.S. Constitution if the government improperly deprives them of protected property interests, including employment contracts. Bassatt tried to assert a claim that he had
been deprived of his constitutionally protected property interests in his employment. The 10th Circuit rejected that argument, however, because he had no employment contract with the school district as a student teacher. Estate of Bassatt v. School District No. 1 in the City and County of Denver, 2014 WL 7399052 (10th Cir.).
Lessons learned
Several lessons can be gleaned from this case, some of which are most applicable to public employers, particularly schools. First, student safety appears to be a broad justification for employee discipline involving anything
that happens on school grounds. Second, a prosecutor’s decision not to pursue criminal charges does not mean that employee discipline is inappropriate. Prosecutors have to consider different interests and satisfy a different and higher burden of proof than schools do. Thus, a decision not to prosecute should not be taken as a final determination that nothing inappropriate occurred or that no discipline is warranted.
That leads to the third lesson, which is applicable to all employers, both public and private: Employers should conduct thorough and prompt investigations when allegations of inappropriate conduct are made. Investigations should be fair and quick, and information should be sought from all key sources, including the alleged wrongdoer. Finally, disciplinary decisions should be made based on the findings of the investigation and
implemented only to advance the employer’s legitimate interests.
You can contact the author at bwilkins@kmclaw.com or 801-328-3600.
