Basically Law

Read the opinion, Wimbley v. Cashion, here.

Issue.  Did the Plaintiff provide sufficient evidence to allow a race and gender discrimination case to go forward against her former boss, a Warden, and did the boss have qualified immunity?

Background.  Plaintiff, Rosemary Wimbley, was an African-American correctional officer.  While escorting a civilian nurse, she warned inmates not to expose themselves or else she would use pepper spray.  Wimbley claimed that she accidentally discharged her pepper spray during the escorting.  As a result of the discharge, inmates had to be moved, but none were harmed.  One inmate demanded that he should be able to shower and speak to the Warden before returning to his cell where the pepper spray had been released.  A white male correctional officer sprayed that inmate with pepper spray twice and brought him to the ground, in order to get him to return to his cell.

The Warden fired Wimbley for violating pepper spray protocol, but exonerated the white male correctional officer.  The Warden claimed that Wimbley was not justified but the white officer was.  Wimbley brought suit under 42 U.S.C. §1983 (deprivation of a federal right) on the grounds of sex and race discrimination.  The Warden, Mark Cashion, claimed there was no such violation.  And, even so, he was entitled to qualified immunity.  The District Court agreed with Wimbley.  Cashion appealed, and the Eighth Circuit Court of Appeals upheld the decision.

Court’s Analysis.  In a claim of qualified immunity, the Court asks two questions:  1.)  Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right, and 2.) Is that right clearly established?

There is two ways for a Plaintiff to make an Equal Protection and Due Process claim for sex and/or race discrimination:  1.) direct evidence of discrimination, or 2.) creating an inference of discrimination under a burden shifting test established by the courts.  There was no direct evidence of discrimination in this case.  Therefore, the Court engaged in the burden shifting test to determine whether there was an actionable inference of discrimination.

Under the burden shifting test, the party asserting discrimination (the Plaintiff) needs to make a prima facie case of discrimination.  The burden then shifts to the Defendant to articulate a legitimate, non-discriminatory reason for the firing.  If the Defendant meets that burden, the burden shifts to the Plaintiff to demonstrate that the Defendant’s reason is pretextual.  In this case, the Court found that the Plaintiff met her burden.

Wimbly stated a prima facie case of discrimination by asserting that she was fired because she was a woman and/or African American, she was doing her job, and similarly situated people not of her race and/or gender were not fired for similar action.  Cashion rebutted the prima facie case by claiming that he fired her because she violated policy regarding the use of pepper spray.  While, the white correctional officer did not because the inmate he sprayed was resisting orders.

Wimbly, however, met her burden to demonstrate that Cashion’s stated reason could be pretextual.  Both Wimbly and the white correctional officer had the same job, were supervised by Cashion and carried pepper spray that was discharged in the presence of prisoners.  Wimbly also alleged that prisoners had backed her story that she discharged her pepper spray accidentally and that the prisoner who the white correctional officer pepper sprayed was not resisting orders.  Further, Cashion did not forward Wimbly’s case to internal affairs but fired her, while he did forward the case of the white correctional officer.

Based on these facts, a reasonable juror could side with Wimbly.  The Court did not find that her allegations were correct, but that she met her burden, at this stage, to demonstrate that she had a winnable case of sex and/or gender discrimination.

After determining that Wimbly alleged enough to show a constitutional violation, the Court still had to determine whether such a right was clearly established so that Cashion was not entitled to qualified immunity.  That question was a no-brainer.   Most everyone knows, and it is more than clear, that federal law prohibits employment discrimination on the basis of race and/or gender.

Thus, Wimbly’s case against Cashion can go forward.