A fire engineer was ranked fourth on an eligibility list out of five candidates for promotion to a fire captain position at a City’s fire department. The engineer was subsequently investigated for creating a staffing error when he scheduled coverage for one of his shifts. He received a written record of a verbal reprimand.
Later, while at the scene of an emergency, the engineer missed his meal break and had department ambulance drivers bring him food, which bypassed department procedures. His superiors questioned him, but he was not disciplined. The engineer was next investigated for delaying the department’s response to an incident as a result of a miscommunication with his supervisor. He received another written record of a verbal reprimand.
The engineer was asked about these incidents during two separate interviews for promotion with the Fire Chief in order to determine if: 1) he understood the policies he violated; and 2) took responsibility for his mistakes.
After learning that the fifth-ranked candidate was to be promoted to captain over him, the engineer made complaints to CAL/OSHA regarding alleged mold remediation issues at his fire station. The engineer then sued the department, alleging whistleblower retaliation, and claims under the Firefighters Procedural Bill of Rights Act (FBOR).
The Court agreed with LCW that the engineer could not establish whistleblower retaliation, because he only complained to CAL/OSHA, or made complaints about other staff at the Fire Department, after he failed to receive the promotion. The Court also agreed that the engineer failed to establish a violation of the FBOR because the engineer was not under investigation nor interrogated within the meaning of the FBOR during his job interviews with the Fire Chief. The Court granted summary judgment on all counts.