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CHAPTER 8 – RACE DISCRIMINATION

Article 8-7

OHIO: RACE DISCRIMINATION – CITY OF CLEVELAND AND ITS FD HAVE SHOW GOOD FAITH IN SEEKING 33 1/3% MINORITY GOAL - CONSENT-DECREES FROM 1977 AND 1984 ARE TERMINATED BY FEDERAL DISTRICT JUDGE

On August 20, 2009, in Cleveland Fire Fighters For Fair Hiring Practices, et al v. City of Cleveland, 2009 U.S. Dist. LEXIS 74221, U.S. District Judge Donald Nugent terminated the consent decree, based on the good faith efforts to date and assurances by the City of Cleveland that they will continue to seek to meet the goal of 33 1/3% minority firefighters.

The Court described the progress made by the city since the first lawsuit was filed on April 3, 1973:

“In the 1970s, when the Consent Decree was first put into place, blacks accounted for a mere 4% of the firefighters in the City's Fire Department, but consisted of 40% of the population living in the City. The evidence presented in this matter before the two District Court Judges preceding the undersigned District Court Judge reflected that the hiring practices and statistical disparities of the 1970s caused a near total absence of opportunity for minorities in the City's Fire Department. Hence, at that time, the Consent Decree was implemented as a temporary measure, designed to remedy the then-present and past discrimination. This nation, and the City of Cleveland, have come a long way since then.”

In 1975, Federal Judge Krupanky found that the city had unlawfully discriminated against minorities for the FD, and he issued the following order in Headen v. City of Cleveland, No. C73-330 (N.D. Ohio Apr. 25, 1975):

“NOW IT IS THEREFORE ORDERED THAT:

The Defendants and each of them, their agents, employees and all persons in action, concert or participation with them shall refrain from appointing any new firefighters to the Cleveland Fire Department until such time as there is presented to this Court, and approved by this Court:

1. An entrance examination which is demonstrably job-related in a manner consistent with EEOC Guidelines on Employment Selection Procedures;
2. A plan for the concentrated recruitment of minority candidates to take such examination, and all subsequent examinations;
3. A method whereby residents of the City of Cleveland shall be awarded bonus points for their residency on all future examinations in the same manner as is presently being done for the Cleveland Police Department;
4. Revised screening procedures (background, psychological, psychiatric, etc.) such as are job-related, objective and non-discriminatory, to be utilized as part of all future entrance examinations for the Fire Department.

IT IS FURTHER ORDERED that following the development of, and approval by the Court of a new entrance examination, that all subsequent examinations shall be demonstrably job-related in a manner consistent with the EEOC Guidelines on Employment Selection Procedures.”

In 1997, the city and the plaintiffs then entered into a Consent Decree in 1977, and an Amended Consent Decree in 1984: each Consent Decree had a goal of 33 1/3% minority firefighters.

In September, 2008 the city filed a motion for an extension of time until 2014 to reach this 33 1/3% goal. It advised the court of a “perfect storm” of events beyond its control, including the DROP retirement program:

“The factors cited by the City include:

• November 1998: Fire entrance examination held.
• September 1999: The 1999 fire eligibility list established.
• September 2000: Court orders the 1999 Fire eligibility list "reconstituted" and orders that the Headen ratio for hiring be one minority for every two Caucasians hired. Court also extends Fire eligibility list until September 2002.
• October 2000: Fire eligibility list reconstituted as ordered by the Court.
• October 2000: 74 cadets assigned to the Fire Training Academy.
• February 2001: 57 cadets assigned to the Fire Training Academy.
• November 2001: Prospective candidates offered conditional letters of appointment to participate in the Fire Training Academy. However, no Fire Training Academy was held.
• September 2002: The 1999 Fire eligibility list expired.
• October 2002: 52 Prospective candidates notified that, despite expiration of eligibility list, the prior conditional offer of employment preserves their opportunity for consideration in the next Fire Training Academy under the holding of FOP v. City of Cleveland.
• 2003: The Ohio Police & Fire Pension Fund establishes the DROP program for members of Police and Fire Departments who are eligible to retire. The DROP program allows Police and Firefighters who continue to work to have the equivalent of their retirement benefits paid into a special account that can later be withdrawn in installments or a lump sum. The program requires a minimum three year commitment and is limited to eight years. The net effect is that Police and Firefighters eligible to retire are given a powerful incentive to remain working. As of June 30th of this year, 211 Cleveland Firefighters (all eligible to retire) are participating in the DROP program.
• January 2004: 70 Firefighters (all hired from the 1999 eligibility list) are laid-off due to severe budget crises. Division of Fire is reorganized reducing the strength of the division from 976 to 906 members.
• January 2004 to April 2007: All Firefighters requesting return from lay-off are re-hired to fill vacancies in the Division of Fire.
• March 2008 to September 2008: Division of Fire meets with Public Safety and Civil Service to establish Fire Training Academy for the 2001 candidates and to plan for a 2009 Fire entrance exam to establish the second eligibility list. Letters are sent in May 2008 to the 2001 candidates to determine their interest in attending the next Fire Training Academy.

The trial judge concludes that the Consent Decree should be terminated:

“The history of this case makes clear that past injustices indeed existed in the City of Cleveland with respect to the hiring of minority firefighters. However, the Court has found that the City has made a good faith effort to comply with the remedy designed to right those wrongs. The evidence demonstrates that it was not the City's lack of effort, but rather circumstances beyond its control, that resulted in it falling short of satisfying the goals in the Second Amended Consent Decree. Based upon the evidence relating to the pending Motions, the Court finds that judicial monitoring is no longer a necessity.

Although some may argue that, absent Court intervention, the City may revert back to the practices that gave rise to the original Consent Decree many years ago, there exists nothing in the record to suggest discriminatory practices will resume. A review of the City's good faith effort to comply with the Second Amended Consent Decree reflects that the City currently has in place a foundation that will lead to increased minority representation in the Fire Department once the economy allows for a more routine hiring process to resume. Using a bona fide job-related examination that is nondiscriminatory and continuing with its minority recruitment efforts, qualified minority candidates will have continued success in the hiring process, and the Court is confident that diversity within the Fire Department will continue.

In addition, while these Consent Decrees did not quite meet the arbitrary goals set by the parties, they certainly created a framework that allows the City to establish a hiring procedure and process that is nondiscriminatory and fair to ALL applicants -- thereby assuring the citizens of Cleveland that the most qualified applicants are selected, and assuring each candidate that he or she will be selected on the basis of merit, rather than on a judicially-sanctioned race-based formula.

Based upon the foregoing, the City's Motion for Extension of Time to Comply with the Headen Decree (ECF # 44) and the Vanguard's Motion to Extend the Terms of the Second Amended Consent Decree (ECF # 45) are DENIED.

III. CONCLUSION

For the reasons cited herein, the City's Motion for Extension of Time to Comply with the Headen Decree (ECF # 44) and the Vanguard's Motion to Extend the Terms of the Second Amended Consent Decree (ECF # 45) are DENIED. This case is TERMINATED.”

Legal Lessons Learned: The city’s good faith compliance with the Consent Decree has carried great weight.

Article 8-6

U.S. SUPREME COURT: REVERSE DISCRIMINATION - LANDMARK DECISION WON BY NEW HAVEN CAUCASIAN / HISPANIC FIREFIGHTERS SEEKING PROMOTION TO LIEUTENANT AND CAPTAIN

On June 29, 2009 in Ricci v. DeStefano, the Court held (5 to 4) the City of New Haven and other public employers may not throw out the results of promotion examinations, even if the results show statistically adverse impact on minority test takers, absent a “strong basis in evidence” that the test was deficient. Read full opinion at: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf.

Justice Kennedy wrote the majority opinion, holding as follows:

"If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (‘[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race’).

For the foregoing reasons, we adopt the strong-basis-in evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." [Case citations omitted.]

The Supreme Court’s majority flatly rejected the argument that City of New Haven had, in effect, no choice but to throw out the promotion tests because the statistical results would have probably led to a lawsuit by African-American firefighters, and they might have been found liable in damages. The results were as follows:

Lieutenant: 3 African Americans to be promoted

"Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Captain: 0 African Americans to be promoted

"Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics."

The Supreme Court majority held that even though no African-Americans would be promoted to Captain, the tests were not inadequate:

"The City argues that, even under the strong-basis-in evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII."

The majority decision recognized that while the low pass rate of minorities taking the test could result in a lawsuit being filed against the City by minority firefighters, this did not justify the throwing out the test results because the City had a good defense – the test questions were job related.

Lieutenant’s exam:

Caucasian 58.1% African-American 31.6% Hispanic 20%

Captain’s exam:

Caucasian 64% African-American 37.5% Hispanic 37.5%

Justice Kennedy wrote:

"The pass rates of minorities, which were approximately one half the pass rates for white candidates, fall well below the 80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 percent ‘of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact’)…."

"That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects."

Legal Lessons Learned: This landmark decision may lead to increased “reverse discrimination” litigation in the fire service. An excellent resource for information on diversity in the fire service is IAFC’s Human Resources Committee, www.iafc.org. For more details on the case, see my article in www.firehouse.com [search "Bennett"].

Note: New Haven Lt. Ben Vargas was the focus of a July 3, 2009 article by the New York Times, “For Hispanic Firefighter in Bias Suit, Awkward Position but Firm Resolve.” He was the only Hispanic firefighter who agreed to join the Caucasian firefighters in this lawsuit, five years ago. The article reports an unfortunate incident shortly after the lawsuit was filed. While at a restaurant, he walked into the bathroom and was attacked: “Without warning, the first punch landed. When Lieutenant Vargas awoke, bloodied and splayed on the grimy floor, he was taken to the hospital." The assailant was never identified. [Page A18.]

Article 8-5

NEW YORK: FDNY - CLASS ACTION CERTIFIED FOR ALL BLACK FIREFIGHTER APPLICANTS WHO SAT FOR WRITTEN EXAMS 7029 OR 2043 – VULCAN SOCIETY MAY SERVE AS CLASS REPRESENTATIVE

On May 11, 2009, in United States of America and The Vulcan Society, et al. v. City of New York, U.S. District Court for Eastern District of New York, 2009 U.S. Dist. LEXIS 39514 (U.S. District Court Judge Nicholas G. Garaufis), issued a 16-page Memorandum and Order allowing a lawsuit to proceed as a class action, challenging two written examinations: claiming the pass/fail exam, and rank-order processing of FDNY applicants had an adverse impact on black and Hispanic applicants.

In 2007, the U.S. Department of Justice, Civil Rights Division, filed the initial lawsuit (07-CV-2067), challenging Written Examination 7029 (pass/fail with cut off score of 84.705), and Written Examination 2043 (pass/fail with cut off score of 70.000).

The Vulcan Society and three individual applicants, Marcus Haywood, Candido Nunez and Roger Gregg filed their own lawsuit, seeking to intervene as additional plaintiffs in the case. The Vulcan Society is a social and charitable organization of roughly 250 black New York City firefighters. Captain Paul Washington filed an affidavit that describes some of the ways in which the Vulcan Society is involved in the community, including “talking about fire-fighting at public school career days” and “visit[ing] local churches to talk to the community about our organization and their neighborhood firehouses.”

The Vulcan Society also helps recruit FDNY applicants and to study for the entrance examination and prepare for the physical performance test. They tutored roughly 300 to take Written Examination 2043.

The lawsuits claim a “Pattern-Or-Practice” of discrimination, and also “Disparate Impact.” The trial judge explained in his memorandum that these cases normally require statistical evidence:

“[P]attern-or-practice disparate treatment suits are generally ‘divided into two phases: liability and remedial.’ [citing cases]. In class action cases, this division allows the court to proceed on the liability phase for the class as a whole, and thereby ‘reduc[e] the range of issues in dispute and promot[e] judicial economy.’ [cases cited]. When pattern-or- practice cases are bifurcated, ‘the liability phase is largely preoccupied with class-wide statistical evidence directed at establishing an overall pattern or practice of intentional discrimination.’ [cases cited].”

* * *

If the plaintiffs make a prima facie showing, the burden shifts to the defendant whose ‘basic avenues of attack’ for challenging the plaintiffs’ statistical evidence consists of ‘assaul[t] on the source, accuracy, or probative force of that evidence.’”

Legal Lessons Learned: The litigation now proceeds. Fire Departments administering recruit examinations should consult with testing experts where there is concern about disparate impact on minority applicants.

Article 8-4

On March 17, 2008, in Shane B. Straeter v. City of Camden Fire Department,   567 F. Supp.2d 667, 2008 U.S. Dist. LEXIS 20567,  U.S. District Judge Jerome B. Simandle denied the City’s motion for summary judgment.  The lawsuit by the African-American FF can now proceed to trial before a jury, and plaintiff can seek to prove a hostile work atmosphere.

The lawsuit alleges that FF Straeter’s Station Captain made comments such as:

·        The Captain knew “white boys who have machetes.”

·        “White boys with machetes ain’t no joke.”

·        “There’s going to be a race war coming, and there’s a militia in every state.”

The trial judge denied the City’s motion for summary judgment, citing case precedent that the comments of a supervisor can create “strict liability” for the city:  “Under Title VII [of the Civil Rights Act of 1964], much turns on whether the harassers are supervisors or coworkers.  If supervisors create the hostile environment, the employer is strictly liable, though an affirmative defense may be available where there is no tangible employment action.  When coworkers are the perpetrators, the plaintiff must prove employer liability using traditional agency principles.”

Shane Straeter was hired by Camden FD on Feb. 3, 1997.  After his recruit training, he was assigned to “Tower Ladder Company Number 2” under the direct supervision of Captain W…..  [We will not name Captain, since these allegations have not been proven.]

FF Straeter was terminated from the FD on May 1, 2001, based on multiple disciplinary charges against him by Captain W:

·       Absent without leave (AWOL) on Dec. 4, 2000;

·       Insubordination to Captain W….. on Dec. 16, 2000, when he refused an order to clean up the mess he had left in the station’s kitchen, and shouted obscenities at the Captain;

            [Note: After this incident, Straeter on Jan. 24, 2001 filed a complaint of racial harassment          with   the NJ Division of Civil Rights.]

·       AWOL on April 2, 2001 for the morning shift and late for the evening shift.

Straeter appealed his termination to the New Jersey Department of Personnel, which appointed an Administrative Law Judge (ALJ) to conduct a hearing.  On Dec. 8, 2003, the ALJ upheld the termination and found no race discrimination.  Surprisingly, the New Jersey Department of Personnel agreed with the finding, but reduced the termination to a 120-day suspension.  The FD appealed to the Superior Court of New Jersey, but the court affirmed the 120-day suspension.  Straeter returned to work at FD on October 6, 2004.

On May 24, 2005, Straeter filed his racial discrimination lawsuit in U.S. District Court.  According to the complaint, Captain W… was “hostile” and “violent” when he made his racial statements, and these comments and others caused him to be fearful and distrustful of his Captain.    

The complaint referred to the New Jersey Division of Civil Rights (“DCR”) investigation from his Jan. 24, 2001 administrative complaint.  The DCR, after interviewing numerous FF and supervisors, found “probable cause” to believe he had been subject to unlawful discrimination: 

·       FF Joseph Tull, Sr. and Edwin Citron confirmed that Captain W…. made “racial comments” to them and “racial jokes.”

·       FF Richard Marnin confirmed that Captain W… “was a loud-mouth, always joking.”

·       FF King Whitfield, Dennis Deal, and Kenneth Chambers reported that Captain W…. “habitually joked.” 

·       FF Daniel Neiling confirmed that Straeter had informed him that Captain W…. was harassing him and he made statements to him about machetes and a militia in NJ.

·       Captain Davis stated that Captain W….. “always made racial jokes, [but because] he knew that Captain W […..]  was joking … he did not take offense at the jokes.”

The federal judge relied on the DCR investigation interviews, and concluded that there was sufficient evidence to allow a jury to decide if there was a “hostile work atmosphere” at the FD.   The judge wrote that under Title VII of the Civil Rights Act of 1964, a plaintiff can establish a claim for employment discrimination based on a hostile work environment if five (5) elements are proved:

1.     That he suffered intentional discrimination because of race;

2.     The discrimination was pervasive and regular;

3.     The discrimination detrimentally affected the plaintiff;

4.     The discrimination would detrimentally affect a reasonable person of the same race in hat position;

5.     The existence of respondeat superior liability (FD knew or should have known of improper conduct and failed to stop it).

The District Judge found that all five elements are present in this case:  “Crediting Plaintiff’s evidence and drawing all inferences in his favor … Captain W…. did not merely address the subject of racial tension in indelicate terms, but was ‘hostile … [and] violent’ with Plaintiff and repeatedly made racially offensive jokes.”    

Regarding the fifth element of respondeat superior liability (strict liability for actions of supervisors), the judge wrote:  “Captain W…..’s use of racial jokes was well known in the Fire Department, including among senior officers like Captain Davis, prior to the Plaintiff’s filing of the DCR complaint.”

Legal Lessons Learned:  Racial jokes and threatening comments by supervisors, including FD officers, can create “strict liability” for the city.  All employers need to conduct periodic training and encourage internal reporting of concerns; FDs must be especially sensitive to this issue, given our close working conditions.

NJ: RACE DISCRIMINATION – ALLEGED RACIAL COMMENTS BY WHITE CAPTAIN - STRICT LIABILITY FOR CITY – CASE TO GO TO JURY

Article 8-3

U.S. Supreme Court – Race Discrimination – Voluntary “Racial Balancing” Plans By School Districts Violate U.S. Constitution

On June 28, 2007, the U.S. Supreme Court decided a “landmark decision” in Parents Involved In Community Schools v. Seattle School District No. 1, 551 U.S. (2007), http://www.supremecourtus.gov, 5 to 4, with the majority holding that the Seattle, WA and Jefferson County, KY school districts improperly relied on race of students to determine which schools certain children may attend. The majority opinion, written by Chief Justice Roberts, may lead to future litigation by white plaintiffs attacking other race-conscious programs, including employer hiring / promotionprograms.

Chief Justice Roberts wrote the majority decision, joined by Justice Alito [both appointed by President George Bush] and Justices Scalia, Kennedy and Thomas. He wrote, “The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or non-white; the Jefferson County school district as black or ‘other.’ In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests.”

In Seattle, Andy Meeks (white), a 9 th grader, sought to enroll in Ballard High School since it has a special Biotechnology Career Academy. He suffers from attention deficit hyperactivity disorder and dyslexia, and his middle school teachers and his parents believed he would perform better in this smaller biotechnology program, with hands-on instruction.

The Seattle school district operates 10 public high schools. Incoming 9 th graders apply to by ranking the order of the high school they wish to attend. White students make up about 41% of 9 th graders, and the remaining 59% of non-white students, including 23.8% Asian-American, 23.1 % African-American, 10.3% Latino, and 2.8% Native-American. Most white students live in northern part of Seattle (which has 4 high schools), and non-white live in south side of Seattle. 82% of the incoming ninth graders ranked one of these 4 schools, plus a high school in the center of Seattle as their first choice.

Unfortunately for Andy Meeks, Ballard High School is one of the popular, oversubscribed schools in the north side of Seattle. It also had more than 51% white students the prior year, so it was rated as “integration positive” and thus the Seattle school district favored non-white applicants. Chief Justice Roberts wrote, “Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School.” The group of Seattle parents (“Parents Involved In Community Schools”) joined Mr. & Mrs. Meeks in filing a federal lawsuit. A federal judge dismissed the suit, holding the school district may consider race in assigning students, since the school district’s integration plan is narrowly tailored to serve a compelling governmental interest. The Seattle parents lost again on appeal to the 9 th Circuit Court of Appeals in San Francisco. The Supreme Court agreed to hear their appeal.

In the Jefferson County, KY case, Joshua McDonald’s mother sought to enroll him in a kindergarten located only a mile from his home. Instead, he was assigned to a school 10 miles away from his home, because in the words of the school district, the “transfer would have an adverse effect on desegregation compliance.” In 1973, federal court had found the schools to be segregated, and ordered a desegregation plan requiring all “nonmagnet schools” to maintain a minimum of 15% black students, and a maximum of 50%. This federal decree was dissolved in 2001, but the school has continued its integration efforts. The school district had 66% white students and 34% black, and under their integration plan they would not allow Joshua to attend his neighborhood elementary school. Joshua’s mother filed a federal lawsuit, which was dismissed, and on appeal to the 6 th Circuit in Cincinnati, they lost again. The Supreme Court agreed to hear their appeal.

Majority decision: The U.S. Supreme Court majority held that both the Seattle and KY school districts violated the U.S. Constitution. Chief Justice Roberts wrote: “Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply as components of a racial, religious or national class.’ Miller v. Johnson, 515 U.S. 900, 911 (1995).”

Dissent: Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, wrote, “The school board plans before us resemble many other adopted in the last 50 years by primary and second school throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U.S. 483 (1954), long ago promised – efforts that this Court has repeatedly required, permitted and encouraged local authorities to undertake. Justice Stevens, who has been on the Supreme Court since 1975 wrote, “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

Legal Lessons Learned: It is likely that this decision will lead to increased litigation, byCaucasian students and also employees alleging “reverse discrimination.”

Article 8-2

ALABAMA – DISTRICT CHIEF ENJOYS “QUALIFIED IMMUNITY” FROM LAWSUIT WHO RECOMMENDED FIREFIGHTER BE DEMOTED – DISTRICT CHIEF HAS TATTOO WITH CONFEDERATE FLAG WITH SKULL AND CROSSBONES

On May 10, 2007, in Lee Hartwell v. The City Of Montgomery, Alabama and District Chief Kelly D. Gordon, 2007 U.S. Dist. LEXIS 34271, a federal judge dismissed the lawsuit by firefighter Lee Hartwell, who claimed he had been unlawfully demoted back to the rank of firefighter in retaliation for exercising his First Amendment right to inform the FD in 1999 that a fellow firefighter (now District Chief Kelly Gordon) had a tattoo in violation of the FD’s tattoo policy. The District Chief enjoys “qualified immunity” when performing his official duties; public employees face an uphill battle in filing First Amendment lawsuits against their supervisors based on an important U.S. Supreme Court decision in 2006.

The Montgomery, Alabama FD adopted a new tattoo policy in 1999, which prohibited firefighters from having tattoos “anywhere on the body that are obscene and / or advocate sexual, racial, ethnic or religious discrimination.” Firefighter who already had such tattoos would be “grandfathered” and not forced to have them removed, unless the Fire Chief found they were particularly prejudicial to the good order of the FD.

Within days of the new policy, Lee Hartwell filed an internal complain about a tattoo on the bicep of fellow firefighter Kelly Gordon – a skull and crossbones superimposed on a Confederate battle flag. Hartwell claimed that this tattoo was “racially discriminatory.”

The FD rejected Hartwell’s complaint and took no action against Gordon. At the time, the FD had patches on its uniforms with the seal of the City of Montgomery that also included the Confederate flag. There was public controversy about the city’s seal, and the Confederate flag was later eliminated and the FD’s patches were also changed.

Kelly Gordon was subsequently promoted to sergeant / engineer, and then later to District Chief. Hartwell was later promoted to sergeant / engineer. In 2003, Gordon conducted an inspection of the fire station where Hartwell was assigned, and the station failed the inspection. District Chief Gordon required every member of the station to sign a form acknowledging the failure – but Hartwell initially refused, and Gordon wrote up a disciplinary memo to Hartwell’s file for his refusing a direct order.

On August 4, 2005, Sergeant Hartwell agreed to work an overtime shift because the department was low on personnel for that shift. During the shift, Hartwell became ill and went home early. When he returned to work on August 7, Chief Gordon ordered him to bring in a doctor’s note. Hartwell refused, stating doctor’s notes are only required when you leave work on an assigned shift, not an overtime shift. Chief Gordon placed another disciplinary memo in Hartwell’s file.

On August 16, 2005, Hartwell wrote a memo to Assistant Chief Walker, complaining of “harassment” by District Chief Gordon. Chief Gordon was very upset with this, and in turn wrote up Hartwell for (a) making a false statement, and (b) breach of the “chain of command” by submitting his complaint directly to the Assistant Chief. Chief Gordon suggested to Assistant Chief Walker that Hartwell be demoted. The Fire Chief ultimately demoted Hartwell, and on appeal this was upheld by the city’s personnel board.

Hartwell filed suit in federal district court against the city and also against District Chief Gordon, alleging violation of his First Amendment right of free speech (retaliation for the 1999 tattoo complaint), seeking money damages under 42 U.S.C. 1983. The federal judge dismissed the suit against Gordon, holding he enjoys “qualified immunity” for his official conduct. The judge cited the U.S. Supreme Court’s decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), where the court held that public employees have only a limited First Amendment right to free speech (an assistant county prosecutor was disciplined for his criticism about a police officer’s search warrant affidavit).

The court also held that Hartwell couldn’t sue District Chief Gordon personally because Gordon enjoys “qualified immunity.” Under the qualified immunity doctrine, “government officials performing discretionary functions are shielded from liability for civil damages in so far as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would know.” In this case, the judge ruled, “Gordon’s conduct was within his discretionary authority. Gordon, as Hartwell’s superior officer, had authority to write him up for various rules violations and recommend to the assistant chief that he be demoted based on various instances of misconduct.”

Legal Lessons Learned: Public employees, including firefighters, seeking to sue their officers for violation of their First Amendment rights have an uphill battle.

Article 8-1

OHIO - RACE DISCRIMINATION – CITY OF CLEVELAND ENTERS INTO SETTLEMENT AFTER FEDERAL JURY FINDS RACIALLY DISPARATE PROMOTION PRACTICES, AND RACIALLY HOSTILE WORK ENVIRONMENT IN FIRE DEPARTMENT

On March 14, 2006, in Luke v. Cleveland, U.S. District Court for Northern District of Ohio, Case No. 1:02 cv 1225, the City of Cleveland reportedly agreed to pay a lump sum of $650,000, and promote several African American firefighters who took a 1996 promotion exam, and three firefighters who took the 2000 exam. BNA’s Employment Discrimination Report, Verdicts & Settlements, Vol. 26, Number 13, page 392, March 29, 2006.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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