Cleveland Firefighter Accuses FD of Reverse Discrimination

A Cleveland firefighter who claims he was forced to resign after his complaints about a hostile work environment were mishandled, has filed suit claiming the department leadership discriminated against him because he is white.

Samuel Livingston, a 17-year veteran, claims he was threatened and assaulted while on duty by a colleague, June Colon, who is described in the complaint as “non-Caucasian”. Livingston claims Colon also threatened to continue harassing him “every time he had the opportunity.”

The complaint alleges that despite Livingston’s having reported the incident, the department failed to follow proper procedures for investigating the matter, and then halted the investigation without justification. Livingston claims the department leadership acted in a racially discriminatory manner, and that his resignation was in reality a constructive termination.

The suit was filed last Thursday in US District Court naming Fire Chief Angelo Calvillo, Assistant Chief Michael Odum and the city has defendants.

From the complaint:

  • On April 5, 2016 Livingston was threatened and physically contacted in a hostile manner by a non-Caucasian co-worker, June Colon, while on duty.
  • In addition to physically contacting Livingston, Mr. Colon also informed Livingston that he would continue to harass Livingston again every time he had the opportunity.
  • In response to this physical and verbal violence, Livingston submitted to the City a complaint of violence in the workplace on May 5, 2016.
  • Livingston completed a Form-10 as was requested of him by the City.
  • The City’s policies require the City to issue a response to a Form-10 within ten days, but Livingston did not receive such a response within the required time period.
  • Upon information and belief, June Colon and Larry Gray (who was also involved in the incident with Mr. Colon and is non-Caucasian) were ordered to provide the same Form-10s by the Assistant Chief David Viancourt but did not comply.
  • Upon information and belief, Defendants failed to report the workplace violence incident to the Human Resources Director as is required by the City’s policies and procedures.
  • Upon information and belief, Defendant Odum—without justification—ordered Assistant Chief David Viancourt, via email, to halt the investigation into Livingston’s complaint after learning that Mr. Colon and Mr. Gray were the subjects of Livingston’s complaint.
  • On June 13, 2016, a non-Caucasian uniformed member of the Division of Fire came to Livingston’s personal residence without prior warning or invitation. Upon information and belief, the practice of sending uniformed members of the Division of Fire to employees’ personal residences had been discontinued prior to the June 13, 2016 incident. Because the City went outside its normal procedures to engage Livingston, Livingston viewed the June 13 incident as a means to harass, intimidate, and silence Livingston.
  • On July 26, 2016, Livingston made a formal request to the City for email, phone and other written or verbal correspondence regarding the April 5 incident but received no response.
  • During this time, it became apparent to Livingston that the mishandling of his complaint was due to his Caucasian race and that his complaint would have been handled appropriately and in accordance with the City’s policies and procedures had Livingston not been Caucasian.
  • Livingston complained in writing to the City that the actions of the City, through Defendants Odum and Calvillo, were racially discriminatory on numerous dates, including July 25, 2016; July 26, 2016; July 27, 2016; July 28, 2016; July 29, 2016; and August 1, 2016.
  • Defendants placed Livingston in the Excessive Sick Use Program after Livingston was forced to use his accrued sick time during the nearly four month period the Defendants failed to address his complaint of violence in the workplace.
  • Livingston had no other choice but to use his accrued sick leave in an attempt to avoid having to return to the hostile working environment created by the April 5 incident.
  • After repeatedly requesting assistance from Defendants for months, it was not until October 7, 2016 that Defendants, via email, suggested conflict resolution between the parties.
  • The email contains a reference to disciplinary action against Livingston, and Livingston perceived this message as a threat of discipline in retaliation for alleging racial discrimination in the workplace.
  • Further, the proposed conflict resolution was to be conducted by Defendant Odum, the very person who was the subject of Livingston’s complaint of racial discrimination. Livingston therefore felt such conflict resolution would be inherently biased against him, as well as intimidating.
  • Upon information and belief, Defendants failed to promote Livingston from the rank of First Grade Firefighter to the rank of Lieutenant on November 3, 2016 when he was due to be promoted pursuant to the City’s policies and procedures.
  • Defendants did not contact Livingston regarding this issue until after Livingston inquired about the status of his promotion on November 3, 2016 and after Livingston filed his charge of discrimination with the Ohio Civil Rights Commission.
  • Defendants eventually—yet untimely—promoted Livingston to the rank of Lieutenant.
  • In addition to making numerous written complaints of racial discrimination to Defendants via email, Livingston also submitted a complaint of race discrimination via a Complaint Intake Form to the City’s Equal Opportunity Office on March 27, 2017.
  • Even after doing so, Livingston’s concerns remained ignored by Defendants.
  • Upon information and belief, Defendant failed to properly handle Livingston’s complaint of violence and the workplace as it would have done for non-Caucasian employees, instead ignoring his concerns for a period of months and forcing Livingston to work in a hostile work environment.
  • Upon information and belief, had Caucasians been the subject of Livingston’s complaint instead of Mr. Colon and Mr. Gray, the City would have disciplined the individuals instead of permitting the individuals to act with impunity.
  • After complaining to Defendant that the mis-handling of his complaint was due to reverse racial discrimination, Defendant retaliated against Livingston by—among other things—further delaying investigation into his complaint of violence in the workplace, placing him in the Excessive Sick Use Program, failing to timely promote Charging Party to the rank of Lieutenant for which he was certified, and forcing him to work in a hostile work environment.
  • On July 3, 2017, Livingston notified Defendants that he would be resigning from his position because he could not return to a workplace where he had been threatened, intimidated, assaulted, discriminated against and ignored.
  • Livingston resigned only after making a final plea to Defendants that the hostile work environment and discrimination issues be addressed. Defendants again chose not to address those issues.
  • The hostile work environment, retaliation and isolation Livingston suffered after complaining of racial discrimination and after filing his charge of discrimination with the Ohio Civil Rights Commission caused intolerable working conditions for Livingston.
  • Defendants deliberately created intolerable working conditions, as perceived by a reasonable person, with the intention of forcing Livingston to resign.
  • Livingston had no choice but to resign from his employment, and a reasonable person in Livingston’s position would have felt compelled to resign. He has suffered from severe emotional distress as a result of Defendants’ actions and inactions, which no reasonable person could endure.
  • Livingston’s resignation was a foreseeable consequence of Defendants’ actions.
  • Defendants’ retaliation, discrimination, intentional isolation of Livingston, and creation of a hostile work environment caused Livingston to be constructively discharged from his position.

The complaint alleges reverse discrimination, retaliation, racially hostile work environment and a violation of Livingston’s 14th Amendment Right to equal protection via 42 U.S.C. §1983.

Here is a copy of the complaint:

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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