LCW Partner Jennifer Rosner, And Associates Marek Pienkos And Cara Strike Win Dismissal Of Fire Captain’s Age Discrimination and Retaliation Lawsuit

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Aug 07, 2023

A fire captain took the promotional exam for battalion chief in April 2019.  A female candidate ranked first, the fire captain ranked second, and a younger male colleague ranked third.  The top-ranked female was promoted in March 2020.

The fire captain first complained to the Human Resources Director in April 2020 about his beliefs regarding legal violations relating to a consent decree.  Under the consent decree, the city received funds from Chevron for the purchase and maintenance of safety equipment.  The fire captain believed that an equipment vendor gave the city a credit for the monies the city had paid for equipment maintenance, without maintaining the equipment, so that the city could spend the money on other items in violation of the consent decree.

Through a series of temporary, provisional, and then permanent appointments, the fire chief permanently assigned the younger, third-ranked candidate to a battalion chief position in April 2020.

The fire captain next complained to the Human Resources Director in May 2020 that the April 2020 promotion of the third-ranked candidate violated the rules related to promotions, and that he – as the second-ranked fire captain — should have been promoted.  The fire captain believed age discrimination was the reason for promoting younger, third-ranked candidate.

In May and December 2020, the fire captain claimed that the fire chief gave the battalion chief promotional examination answers to the first and third-ranked candidates.  The fire captain alleged that the fire chief did so because of the fire captain’s age.  An investigation revealed that the fire chief only shared the answers after the examination, which was consistent with department policy.

In December 2020, the fire captain received his annual performance evaluation from the battalion chiefs who had been promoted over him.   The performance evaluation rated the fire captain “standard” or “above standard.”  The fire captain felt that his written evaluation rated him unfairly.  The fire captain claimed he was denied a union representative and his right to record the evaluation meeting.  The fire captain felt that these actions occurred because of his age and the fact that he complained about the consent decree.

The fire captain then sued his city employer and fire chief for alleged age discrimination, failure to promote, and whistle blower retaliation for his complaints about alleged violations of:  a federal consent decree; California law regarding monies provided by the consent decree; and promotional examination procedures.

The city and fire chief filed a motion for summary judgment, arguing that they had legitimate, non-discriminatory reasons for their actions and that the fire captain could not show the required nexus between his age and the alleged adverse employment action.  The court agreed.

The court credited the city’s evidence that the chief had decided not to promote the fire captain based on his poor performance and lack of fitness for the position.  The city provided detailed notes from the administration of the exam that outlined the substantive strengths and weaknesses of the fire captain for that position, as well as later notes in performance evaluations describing his performance issues in working with others.  The Court found the city’s reasons for these employment actions were legitimate and non-discriminatory.

The Court also found there was no retaliation.  The fire captain did not complain about age discrimination until May 2020, whereas the alleged adverse employment action of failing to receive promotion first occurred in March 2020.  The alleged adverse action occurred before the fire captain complained about race discrimination.  Therefore, the two could not be causally linked.  Similarly, the fire captain did not complain about the consent decree funds until April 2020, still a month after the adverse action.  The Court granted the city and fire chief’s motion for summary judgment.

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