Fired Grand Traverse County Animal Control Officer Deb Zerafa isn’t going quietly. She’s filed complaints with the Equal Opportunity Employment Commission and the Michigan Civil Rights Commision.
What happens now?
When someone files a complaint with the EEOC or the Michigan Civil Rights Commission, these agencies conduct their own investigations. (These state agencies exist because they are necessary — Employers are often pretty crappy about discriminating against employees.) These agencies get to ask some pretty simple questions that we all want to know:
- Why did you initiate the investigation into Zerafa’s conduct?
- Is it true that you started the investigation shortly after Zerafa complained about age discrimination and failing to receive a promotion?
- What about all of the controversy in county government about the role of animal control and funding? Did that motivate your actions in firing Zerafa?
- Why don’t you conduct similar inquiries of all allegations of 4th Amendment violations?
- How many phone calls went back and forth between the Health Department and the County Administrator tag team before and as this all went down?
Once these government agencies conduct their investigations, they issue a report. If Zerafa is unhappy with it, she can take the issue to a court.
What does Zerafa have to prove to win?
To win her case, Zerafa has to prove four things:
1. She’s part of a protected class. (She is. Age is a protected class.)
2. She qualified for the position. (Obviously. She had her position.)
3. She suffered adverse employment action. (She was fired. Check.)
4. The position went to a non-class member or non-class members were treated differently. (This is the big question.)
Once Zerafa establishes her case, it’s up to Grand Traverse County to provide a legitimate reason for firing her. That doesn’t mean simply presenting the 10-page report and saying boom. It’s problematic for the county if they deviated from normal procedure to fire her or if they’re otherwise inconsistent in their actions. Zerafa can base her case on showing that others were not fired for similar conduct.
That’s where I think Grand Traverse County is in some legal trouble. Fourth Amendment violations happen in any law enforcement department. Even though Sheriff Bensley thinks his police officers never make mistakes, there are plenty of allegations of Fourth Amendment violations by county employees: one, two, and that’s just what I pulled quickly off the internet. Were all of these officers fired? No. Were they placed on leave pending investigation? No. Did they issue a press release smearing the employee’s good name? I think you know where I’m going with this. No. Zerafa has strong arguments for disparate treatment.
If Zerafa wins, she may get:
- back pay
- back benefits
- attorney fees
- pain and suffering compensation
Collective bargaining issues
I have a question – was Zerafa an at-will employee? Michigan is an at-will employment state. That generally means an employer can fire an employee for almost any reason, except discrimination.
However, government employees still belong to bargaining units at a high rate. And nevermind how wrong that is, the point is that Grand Traverse County may have needed a reason to get rid of her under the terms of the collective bargaining contract in addition to whistleblower/anti-discrimination protections. Someone on this site tried to deflect responsibility from newly coronated Grand Traverse County Administrator Nate Alger by saying that Animal Control is under the auspices of the Health Department and not the Grand Traverse County Sheriff’s Department. Based on this online document, it appears that the health department designation would have made Zerafa a part of a bargaining unit.
Here’s the collective bargaining agreement. It says: “Section 9.1. Just Cause. The Employer shall not discharge, demote, suspend or otherwise discipline any non-probationary employee except for just cause.”
In other words, to fire Zerafa, they have to come up with something that she did wrong. They couldn’t just use the standard third-date breakup line — This just isn’t working out.
The agreement goes on to say that when they fire someone, they have to state the charges against the person in writing. Hence the 10-page report trying to justify firing her.
Zerafa could pursue a grievance and arbitration for the county’s breach of the collective bargaining agreement separate and in addition to the action for discrimination. Essentially there would be rounds of evaluations and mediation, and it could end up in front of an arbitrator. The loser pays for the cost of the arbitrator, but that’s not much to lose.
There’s nothing that I can find in the collective bargaining agreement that defines what amounts to just cause. Based on the seven factors listed on this website, it seems that the county’s case fails at numbers 5, 6 and 7 — the evidence they have of Zerafa’s misconduct is weak at best, they don’t apply the policy consistently, and the discipline isn’t proportional for what appears to be relatively minor offenses.
Because you can argue to the EEOC and Michigan Department of Civil Rights that a firing is pretextual, it makes sense that you would be able to present the same circumstantial evidence in order to prove that your firing is pretextual as it relates to the collective bargaining agreement. No employer is ever going to admit that they violated a collective bargaining agreement, so it would only stand to reason that the arbiters would entertain evidence of pretextual behaviors and ulterior motives.
Good for Zerafa for knowing how to file the complaints. She may have had some help. We will continue to follow this story.