SAN FRANCISCO (LN) — The 9th Circuit reversed summary judgment for the Army in a Title VII lawsuit by bisexual officer Steven Crowe, ruling that a supervisor’s decision to let a co-worker who hurled slurs at him conduct the investigation created a jury question on discrimination and retaliation.
Crowe, a police officer in the Army, sued Acting Secretary of the Army Mark Averill and other officials after he was stripped of his police powers, reassigned to administrative duties, and placed on administrative leave.
The district court had granted summary judgment to the Army, concluding Crowe failed to show he was treated differently than similarly situated officers or that the adverse actions were motivated by bias.
The 9th Circuit panel found the district court erred in dismissing Crowe’s disparate treatment claim, noting that the adverse actions occurred under circumstances giving rise to an inference of discrimination.
Between mid-2015 and early 2016, a co-worker and fellow police officer, Kevin Oda, referred to Crowe as “faggot” and “fag” multiple times in front of their co-workers and supervisor.
Less than two months after the slurs, management began investigating Crowe for alleged workplace gossip and sexual relations while on duty.
Of particular concern to the panel was that Crowe’s supervisor recruited Oda—the very officer who had directed slurs at Crowe and whom Crowe had reported less than two months earlier—to conduct the investigation.
The supervisor further denied Crowe any meaningful opportunity to respond to the allegations despite his previously clean service record, and maintained that the slur could be appropriate and was inappropriate here only “[b]ecause Mr. Crowe complained about it.”
The court found facts suggesting the adverse employment actions were tainted by “subordinate bias,” citing Poland v. Chertoff.
Oda only took statements from people with personal vendettas against Crowe and refused to take statements from witnesses favorable to him.
The supervisor testified that he reassigned Crowe and removed his police powers based solely on the statements Oda provided.
Management did not independently assess the validity or credibility of the statements or offer Crowe a chance to respond until months later, after he had already been reassigned.
On the retaliation claim, the court found Crowe established a prima facie case because the investigation began less than two months after he reported Oda’s harassment, and further disciplinary action occurred just 11 days after Crowe alleges his supervisor learned of his EEOC contact.
The panel also reversed on the hostile work environment claim, rejecting the district court’s characterization of Oda’s conduct as three isolated “offensive utterances.”
The court noted that under Bostock v. Clayton Cnty., discrimination based on homosexuality entails discrimination based on sex, and that discriminatory slurs can transform a workplace into a hostile environment.
Crowe testified that “since Officer Oda... outed me to the department, I suffered tremendously, mentally emotionally and physically.”
Judge R. Nelson concurred but wrote separately to clarify that the ruling did not conflict with a previous 9th Circuit opinion in Crowe v. Wormuth that affirmed summary judgment on Crowe’s termination claims.
Nelson noted that Crowe’s misconduct was undisputed and that he was properly terminated, meaning he could not recover lost wages.
“At most, Crowe may seek nominal damages for any procedural violation based on a potentially ill-advised assignment of the investigation to Oda,” Nelson wrote.
“Crowe is within his right to pursue that claim. But given his undisputed bad actions, one wonders whether the juice is worth the squeeze.”
The panel included Judges Jay Bybee, Ronald M. Gould, and Michelle T. Forrest.