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Confirmed Judges, Confirmed Fears: Trump Judge Bush Would Overrule a Jury In an Employment Retaliation Case

News and Analysis
Confirmed Judges, Confirmed Fears: Trump Judge Bush Would Overrule a Jury In an Employment Retaliation Case

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

A jury found that the city of Cleveland had unlawfully retaliated against police officer Jerome Barrow for filing a racial discrimination complaint. The ruling was upheld on appeal to the Sixth Circuit, over the dissent of Trump judge John Bush, who would have replaced the jury’s conclusion with his own. The May 2019 case is Barrow v. Cleveland.

In February 2012, Lt. Barrow filed a complaint of racial discrimination with the Equal Opportunity Employment Commission (EEOC), which promptly informed the city of the complaint. Three weeks later, the city mandated that discrimination complaints by police and all other public safety personnel no longer be sent to human resources, but instead be sent to the office of public safety. Barrow testified that this change put employees at risk of having to file their complaints with the person they were complaining about, which could dissuade them from filing at all.

And within a few months, Barrow—who’d had more than 30 years of high performance evaluations and promotions—was subject to actions he alleged were unlawful retaliation for his discrimination complaint. He was prohibited from driving the car assigned to him as a vice-unit supervisor. (After Barrow transferred to another district, his replacement got the car.) He was also put on administrative duty and forbidden to interact with the public, which effectively barred him from certain overtime opportunities (such as working security at professional football games). Barrow eventually sued the city of Cleveland and three individuals in supervisory positions (the district commander, the chief of police, and the city’s safety director) for unlawful retaliation in violation of Title VII.

At the close of Barrow’s case and based on his version of the facts, the trial judge ruled that the individual defendants had qualified immunity and therefore could not be held liable. The judge noted that Barrow had not presented any evidence that those individuals had personally engaged in retaliation, or that they had even known about Barrow’s first complaint to retaliate against it. But he sent the case against Cleveland to the jury, which ruled against the city.

In his dissent, Judge Bush accused the trial court of “assum[ing] that once one employee has knowledge of the protected activity, it is automatically transferred to other employees because they work for the same entity,” something the Sixth Circuit does not allow in Title VII cases. He saw no evidence that any specific decision-maker had knowledge of the first EEO complaint. Therefore, he concluded, no reasonable jury could have found the city liable, and the trial judge should have overruled the jury in this case.

But as the majority explained, Sixth Circuit precedent does not require direct evidence that an employer knew of activity protected by Title VII. It is sufficient if the employer “took an action with respect to the plaintiff, other than the challenged action, from which it could be inferred that the [decision-maker] was aware of the plaintiff’s grievance.” In this case, the city changed its complaint policy only three weeks after being informed of Barrow’s complaint by the EEOC. A reasonable jury could have seen this as suggesting that city policymakers were aware of Barrow’s complaint.

The panel majority—which included Raymond Kethledge, who is on President Trump’s list of potential Supreme Court nominees—recognized that the court “may not weigh the evidence … or substitute our judgment for that of the jury.” Indeed, jury trials are a critical component of allowing recourse for those whose legal rights have been violated by someone more powerful. Judge Bush would have shut the jury out of this case.


John K. Bush, Lower Federal Courts, Protecting Lower Courts, Sixth Circuit Court of Appeals