Male, female were disciplined differently — why it was OK

When is it not sex discrimination for a supervisor to discipline male and female staff differently?

The simple answer is: When the circumstances warrant it.

But a new Fourth Circuit decision gets more specific. You can discipline employees differently when they didn’t break the same rules and don’t have comparable disciplinary records.

Verdict Is Struck

That’s why the federal appeals court struck a more than $1.6 million trial court judgment for a police officer fired for misconduct.

In Tinsley v. City of Charlotte, it found the officer failed as a matter of law to show the real reason the city fired him was because of his sex.

So the the city won the case, and the Fourth Circuit struck a jury award, a back- and front-pay award, and an award of attorneys’ fees.

Michael Tinsley became a patrol officer for the Charlotte-Mecklenburg Police Department (CMPD) in 1998. Over the next 15 years, he racked up a lot of discipline.

CMPD didn’t bar officers from having romantic relationships with each other. Tinsley got involved with two-year patrol officer Aimee Aquino. Two years later, he refused to get more serious with her and reported she was harassing him by responding to his service calls and visiting his division office.

Stay Out

On May 7, 2013, her supervisor ordered her to stay out of Tinsley’s division. Later that day, she told a co-worker Tinsley had raped her a month earlier. Over her objection, the co-worker went to internal affairs.

The investigator interviewed them and obtained their cell phone records. She said Tinsley raped her between 2:00 and 3:00 a.m. that night. Her phone records showed she was on the phone with someone else for 26 minutes, starting at 1:55 A.M. Tinsley told the investigator they’d had consensual sex that night.

The investigator initiated two charges against Tinsley based on alleged assault: failure to conform with the law and unbecoming conduct.

After a hearing, four of five members of the Chain of Command Review Board (CCRB) voted to sustain the charges, but the fifth had final decision-making authority. He found insufficient evidence to sustain the charge. Tinsley was not punished for the alleged rape.

Suspended Without Pay

But he was given a 240-hour suspension without pay for his conduct during the investigation. A captain said Tinsley told “three different stories” and his testimony at the hearing didn’t match what he told internal affairs. A major told the chief that Tinsley had revealed information at the hearing that he should have told the investigator.

Additional rule-of-conduct charges were sustained because the CMPD had learned from his cell phone records that he’d improperly conducted two inquiries and had asked another officer to dismiss a friend’s traffic violation. He went on to be charged with abuse of position and lack of courtesy after he parked in an unauthorized spot and allegedly intimidated a parking attendant by getting in his face to say he was a police officer and the attendant didn’t have the authority to give him a ticket.

After a hearing, the CCRB recommended firing Tinsley based on the many charges against him and his entire disciplinary history. The civil service board voted 3-2 to fire him.

Meanwhile, Tinsley had sued Aquino for slander in accusing him of rape. After a trial, the jury found for Tinsley and fixed damages at $50,000. The city, which provided Aquino’s legal defense, settled the suit for $41,500.

Suit Invokes Title VII

Tinsley then sued the city for sex and race discrimination in violation of Title VII. His race claim failed, but he won on his sex bias claim. Aquino was his only “comparator” – a similarly situated female officer who engaged in similar misconduct but was treated better by the CMPD. The city objected and moved for judgment as a matter of law, arguing she wasn’t a valid comparator. The district court denied its motions. The jury found Tinsley won and awarded him $125,000 in compensatory damages. The judge went on to award him back pay of $699,820, front pay of $629,210, and a federal income tax offset of $342,345 – for a total of more than $1.6 million. It also awarded him $330,797.50 in attorneys’ fees and $22,045.57 in costs.

But the city appealed, and the Fourth Circuit reversed the judgment.

While writing that “overturning a jury verdict is a serious matter and one that we do not take lightly[,]” the court found it had to here “because Aquino was not a valid comparator” so there was “insufficient evidence as a matter of law for a jury to find that Tinsley’s employment was terminated because of his sex.”

The court found they weren’t similarly situated because his disciplinary history was much worse than hers. That made a difference because CMPD’s progressive discipline system took an officer’s disciplinary history into account in deciding how to address new misconduct. Unlike her, Tinsley had an extensive record of misconduct, including repeated untruthfulness.

Different Circumstances, Different Results

They also didn’t commit comparably serious misconduct. Tinsley claimed they both showed lack of candor in the assault investigation as she didn’t mention the 1:55 A.M. phone call to investigators before phone records revealed it. The court rejected this, as Tinsley’s lack of candor charge was based on withholding information about events that occurred between the two of them that night – which was what internal affairs was investigating. Her phone call with a third party didn’t show she withheld information that the CMPD sought.

Importantly, the reasons CMPD gave for firing Tinsley were four charges based on his cell-phone records and three charges based on the parking lot incident. Unlike Tinsley, Aquino was never disciplined for demanding special treatment because she’s a police officer. The court wrote, “Because the City’s motions for judgment as a matter of law should have been granted, we also must reverse the district court’s award of back pay, front pay, income tax offset, and attorneys’ fees and costs. Those awards were predicated on the district court’s erroneous finding that Tinsley had established Aquino as a valid comparator to prove that his employment was terminated because of his sex.”

Tinsley v. City of Charlotte, No. 19-1871, 2021 WL 1783226 (4th Cir. 5/5/21).