DC Prevails in Discrimination Suit

A decision handed down today in US District Court for the District of Columbia is not going make the Rubin-haters in DC very happy, but its another ruling in favor of former Fire Chief Dennis Rubin.

The case involved the termination of a Black female fire captain, Vanessa Coleman, who alleged race and gender discrimination, along with violations of her First Amendment Rights and violation of DC’s Whistleblower law.  It is a complex case with the Plaintiff pointing fingers at virtually everyone in the organization: her immediate superiors, her immediate subordinates, the fire chief, an assistant chief, and the district’s legal counsel.

Rather than paraphrase what allegedly transpired, let’s use the court’s own words (quoted in italics below) to explain the case.

I would encourage folks who are genuinely concerned with understanding what a modern fire chief has to contend with these days, to read the entire 38 page decision. It is easy to see why some fire chiefs might find an excuse not to try to address these kinds of complex employee problems – when at the end of the day you have to defend yourself in Federal court.

Plaintiff, an African-American female, was a captain in FEMS on March 12, 2008 when a fire broke out in a high-rise apartment building in the Mt. Pleasant neighborhood of Washington, D.C…The fire was one of the “largest in the Department’s recent history, and drew a great deal of attention and criticism from the public.” … The fire was apparently not adequately controlled by FEMS, and led to a total loss of the building as well as damage to a neighboring church.

An internal FEMS dispute over plaintiff’s role at the scene of the fire triggered the main events leading to this litigation… Plaintiff claims that upon arrival at the scene, she began a check of the basement as required by the department’s standard operating guidelines before being interrupted by the operations commander at the scene, Battalion Fire Chief (BFC) John Lee, who diverted her away from the basement and towards the third floor…

In the months following the fire, FEMS began investigating the failure. Plaintiff filed a series of memoranda to superiors, providing her side of the story, contesting her innocence of misconduct, explaining that John Lee’s tactical error had caused the failure to control the fire, and requesting a formal investigation into the events…

Plaintiff also aired some of these grievances publicly, through a “personal journal” posted on a blog, and a phone interview that aired on a radio station…

On April 17, BFC John Lee cited the plaintiff for violating Article VII, Section 2 of the D.C. Fire and EMS Order Book for violating the Standard Operating Guide and “fail[ing] to ensure that the basement check was completed…

On May 19, plaintiff’s challenge was heard by BFC James Kane. … Kane found plaintiff guilty and recommended a 24-hour suspension…

 Plaintiff reacted to all this by filing a series of memoranda and appeals in June and July contesting her innocence, complaining that the hearing before Kane was procedurally defective, and seeking reversal. … Several of these memos contained unusual language. In one, plaintiff purported to cite a superior, claiming that he “ha[d] orchestrated a behavior of mutiny” and referred to a “conspiracy against her.” …

Another complained that a “pursuit to diabolically cripple [her] professional career” had “become the primary agenda of [her] chief officials.” … The volume of these memoranda peaked when plaintiff filed six memoranda directed to a single officer (Chief Rubin) in the course of the single day – behavior which plaintiff acknowledges “a supervisor could perhaps find . . . out of the ordinary.” … Fire Chief Rubin affirmed Kane’s decision and the 24-hour suspension as penalty. …

On July 25, defendant and assistant chief Brian Lee ordered plaintiff to undergo a fitness for duty evaluation at the Police and Firefighters Clinic (PFC), with both psychological and physical components…

At her July 31 appointment, plaintiff declined to sign the waiver form requesting to speak first with counsel…

Next, BFC Begley told plaintiff that she would be charged with insubordination for disobeying the order to undergo the fitness for duty evaluation. … Plaintiff submitted a memorandum to Chief Rubin defending her actions in disobeying the order, alleging that the order was retaliatory….

On August 7, plaintiff returned for a rescheduled appointment to undergo the psychological component of her fitness for duty evaluation. This time, she signed the waiver form only after making alterations to it, and noting that she was submitting to the evaluation “under duress and under the threat of further retaliation or adverse personnel action.”…

Later that month, plaintiff and her counsel met with defendant Lee and FEMS deputy general counsel… to discuss the outstanding order to complete a fitness for duty evaluation and plaintiff’s pending claims of discrimination. … The meeting resulted in an agreement, formalized in a September 3, 2008 memorandum … that allowed plaintiff to return to work, referred plaintiff’s complaints about racial and sex discrimination in FEMS to an outside EEO investigator, and promised to hold in abeyance both the order for plaintiff to undergo evaluation as well as any accompanying administrative action resulting from plaintiff’s failure to comply with this order, pending resolution of plaintiff’s EEO claims.

The EEO investigation concluded with no action in late October. …

After the EEO investigation of plaintiff’s complaints was concluded, plaintiff’s obligations to complete the fitness for duty evaluation were no longer held in abeyance, and on November 20, plaintiff was informed that she was scheduled for a psychological evaluation on November 26….

On the morning of the appointment, plaintiff filed a complaint in D.C. Superior Court, seeking to enjoin defendants from compelling her to submit to a fitness for duty evaluation, and called the PFC to inform them she would not be able to appear for her appointment…

On January 13, 2009 defendant Lee issued formal charges of insubordination against the plaintiff for challenging the order that she submit to a fitness for duty evaluation…

In February, with charges pending, plaintiff was again ordered to report to the PFC for an evaluation. … On February 11, plaintiff attended the PFC appointment, signed the waiver without alteration, completed the written exam portion of her psychological evaluation. … Plaintiff returned on February 18 to complete the oral interview portion of the psychological evaluation, during which she informed the attending doctor, Dr. Morote, that she was at PFC under duress. … After hearing this statement, Morote stopped the interview, and requested that plaintiff submit a written statement clarifying her reasons for appearing at PFC. … On February 24, plaintiff submitted a statement in which she asserted that she was being forced to undergo an evaluation “in retaliation for raising concerns about a number of important issues within the department.” Morote later wrote that she would be “unable to proceed” with the evaluation in light of plaintiff’s written statement.

On March 11, plaintiff was further charged with insubordination for failing to complete the February 18 fitness for duty evaluation.

In June and July 2009, a FEMS Trial Board was held concerning the charges of insubordination. The Trial Board concluded that plaintiff was guilty of insubordination for failing to complete the fitness for duty evaluations as ordered on July 31, 2008, and November 26, 2008. … The panel recommended that plaintiff be demoted two ranks, to Sergeant, and ordered (again) to submit to a fitness for duty evaluation or face termination.

On June 26, 2009, plaintiff reported again to PFC for a psychological exam, where she was informed she would be terminated unless she stated that she was taking the psychological evaluation voluntarily. She refused to do so….

In August, 2009, plaintiff was informed of yet another appointment for the psychological exam. … On August 25, 2009, plaintiff did not attend the appointment, and instead filed a motion for a temporary restraining order, seeking to enjoin the defendants from forcing her to take the evaluation. …

In September, plaintiff was notified that she had until October 1 to complete the exam or face termination. Plaintiff declined to do so, and on October 7, she was terminated….

Throughout 2008, plaintiff maintained a blog describing the race- and sex-based discrimination and harassment she had experienced and witnessed at FEMS.

On March 31, 2008, plaintiff submitted a memorandum to several superior officers, detailing an incident in which her radio transmissions were ignored.

In April, 2008, plaintiff filed a grievance with her Union complaining about being forced to attend an EEO training class, and attributing this order to her race and sex and in retaliation for her previous orders. … She also filed a memorandum complaining of this order to attend the EEO training to Chief Rubin. …

In May, 2008, plaintiff filed a memorandum complaining that several previous reports placing disciplinary charges on subordinates had not been properly and timely acted upon by her superiors.

Also in May, plaintiff sent a memorandum to Chief Rubin, complaining of an incident involving a firefighter violating the grooming policy, and her thwarted efforts to punish him. … In June, plaintiff was reprimanded for failing to enforce the grooming policy. …

In June, plaintiff sent numerous memoranda to Chief Rubin purporting to charge her superior officers with failing to timely process disciplinary charges she had filed against subordinates. … Plaintiff also sent other memoranda to Chief Rubin – complaining about being forced to take her unit out of service while she worked on her report about the Mount Pleasant incident, and also about the discipline incident regarding the firefighter who violated the grooming policy. …

Also in June, plaintiff sent letters to D.C. Councilmembers, the Mayor, and Chief Rubin complaining that FEMS officials were retaliating against her for speaking out.

Still in June, plaintiff filed yet more memoranda to Chief Rubin complaining about superiors’ failure to timely process her disciplinary charges, alleging racial discrimination as the cause of this failure

And, in June, plaintiff claims that defendants removed her ability to obtain case reference numbers necessary for tracking her disciplinary matters. …

In July, plaintiff wrote another memorandum to Chief Rubin alleging that her superiors were selectively disciplining Black firefighters, but declining to support her efforts to discipline her own subordinates. …

On July 2, 2008, plaintiff alleges that her ability to cite superior officers was removed…

On July 8, 2008, plaintiff was detailed from Engine Company 21 to the Facilities Maintenance Division of FEMS, where she was assigned “to count and catalogue chairs.” …

On July 13, 2008, plaintiff was detailed to the facilities maintenance division away from her company. …

On July 21, 2008, plaintiff was ordered to attend EEO training. …

In February 2009, plaintiff filed charges with the D.C. Office of Human Rights and EEOC, disparate treatment, and retaliation

The court granted the defendants summary judgment concluding that the facts failed to support the Plaintiff’s legal claims. The court continued:

[D]efendants claim that they acted in response to plaintiff’s erratic, paranoid, and otherwise worrisome behavior – as manifested in the “barrage” of dozens communications and memoranda which plaintiff documents in her filings in this case. These filings, as well as plaintiff’s other behavior, gave the defendants legitimate concern about plaintiff’s mental state, and her ability to safely command her company. While several of these filings (the ten or so listed above) do mention race and sex discrimination, the majority of them do not. Thus, defendants have a legitimate, non-Title VII retaliatory reason for taking each of the eight actions against defendant.

Plaintiff falls into the same trap under her Title VII claim as she did in her WPA [Whistleblower Protection Act]and First Amendment Claims. By repeating and documenting her long trail of filings and memoranda, she has inadvertently provided documentary support for defendant’s legitimate reason for taking action against her. …

Finally, plaintiff claims that defendant, the District of Columbia, created a hostile workplace. … Because plaintiff has failed to exhaust her administrative remedies, this claim also fails. …

Here is a copy of the full decision. Vanessa Coleman

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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