Termination of Cleveland Sub Scammer Upheld

The Cleveland firefighter who was at the center of a shift-trading scandal in 2013, has lost his race discrimination suit in US District Court. Calvin Robinson was fired in 2014 after pleading guilty to a misdemeanor offense of Complicity to Solicit or Receive Improper Compensation.

Robinson and twelve other firefighters who faced identical charges, all were given the same six-month suspended sentence. The other firefighters, who were all Caucasian, were suspended without pay for nine-months and restricted in their ability to bid for assignments/transfers and to engage in shift trades. Robinson, the only African American charged in the scandal, was the only one fired.

In explaining his decision to fire Robinson, Public Safety Director Michael McGrath wrote:

It is difficult for me to grasp the incomprehensible amount of time in which you failed to carry out your sworn duties. The audits and subsequent investigations revealed that between 2006 and 2011 you had a shift trade imbalance of over 10,000 hours. The egregious manner in which you violated the trust of your fellow firefighters demonstrates a complete lack of integrity. Finally, the citizens of the City of Cleveland expect and deserve a full and complete effort from all of us. You failed in every way.

After Robinson lost a grievance over his termination, he filed suit claiming that suspending the Caucasian firefighters and firing him constituted disparate treatment race discrimination. On October 13, 2017, US District Court Judge Christopher A. Boyko granted the City’s Motion for Summary Judgment ruling that the disparity in hours owed between Robinson and the next closest firefighter was too great to consider them to be similarly situated.

Judge Boyko does a good job of explaining the McDonnell Douglas burden shifting test that applies to allegations of disparate treatment discrimination.

  • The investigative report showed that Plaintiff owed 10,098 hours in unrepaid trades for the years between 2006 and mid-July, 2011.
  • Plaintiff worked only 32 hours between January 1, 2009 and July 21, 2011.
  • The next highest trade deficit among the fire fighters under investigation was 5,308 hours for the period between 2006 and 2011.
  • To establish a prima facie case for race-based discrimination in violation of Title VII, a plaintiff must show: “(1) that he is a member of a protected class; (2) that he suffered an adverse employment action; (3) that he was qualified for the position; and (4) that a similarly-situated employee outside the protected class or classes was treated more favorably than he.”
  • Here, Defendants do not dispute that Plaintiff can establish the first three prongs of his prima facie case: that he is a member of a protected class; that he suffered an adverse employment action; and that he was qualified for the position. However, they vigorously dispute that Plaintiff has shown that a similarly-situated employee outside the protected class was treated more favorably than he.
  • Plaintiff maintains that he and the twelve Caucasian fire fighters accused of violating the shift-trading policy were similarly situated in all relevant respects. All the fire fighters identified as engaging in shift-trading abuses were fire fighters with the Cleveland Division of Fire; all of them reported to the Chief of the Division of Fire; all operated under the direction of the Director of Safety; all were criminally charged in Cuyahoga County Common Pleas Court; all entered guilty pleas to the same misdemeanor offense; and all received a suspended six-month sentence.
  • However, Plaintiff was terminated from his position with the City, while the rest were suspended for nine months without pay.
  • Plaintiff concludes that the only difference between himself and the twelve other fire fighters was his African American race.
  • Defendants contend that Plaintiff’s misconduct far surpassed that of the other twelve charged Cleveland fire fighters; thus precluding a determination of “similarly situated.”
  • Plaintiff owed 10,098 hours of unrepaid time as compared to 5,308 hours owed by the next highest offender between 2006 and 2011. Defendant McGrath’s termination order utilized terms like “incomprehensible amounts of time” and “egregious” and “failed in every way.”
  • As noted by the American Arbitration Association Arbitrator in his May 15, 2015 Opinion: “Thus, the [Plaintiff’s] total of hours owed amounts to more than four (4) years of scheduled shifts of work!”
  • The Arbitrator continued: “The massive unreciprocated hours that the [Plaintiff] owed establishes a reasonable basis for the variation in penalties…”
  • “To create an inference of disparate treatment, a plaintiff ‘must prove that all of the relevant aspects of his employment situation are nearly identical to those of the employees who he alleges were treated more favorably. The similarity between the compared employees must exist in all relevant aspects of their respective employment circumstances.’”
  • The Court finds Defendants’ argument that Plaintiff is not similarly situated to the twelve other fire fighters to be highly persuasive.
  • The sheer number of hours owed by Plaintiff to his employer is staggering. The Court is equally astounded by the significant gap between the amount of hours not repaid by Plaintiff and the amount of hours not repaid by the next highest abuser of the Division’s shift trade policy.
  • Plaintiff cannot merely express a different opinion of, or a naked suspicion about the basis for Defendants’ decision to terminate his employment.
  • For these reasons, and after applying the McDonnell/Burdine evidentiary framework, the Court determines that Plaintiff has no evidence of race discrimination, that Plaintiff cannot prove discriminatory animus on the part of the individual Defendants, Calvillo and McGrath, that Plaintiff is not similarly situated to his comparators and that the City’s legitimate reason for terminating Plaintiff was not pretextual. Therefore, the Motion of Defendants, City of Cleveland, Michael McGrath and Angelo Calvillo, for Summary Judgment is granted.

Here is a copy of the ruling: Robinson v City of Cleveland

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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