San Bernardino County Division Chief Prevails in Age Discrimination Appeal

A former San Bernardino County division chief who was awarded $600,000 in 2016 for age-discrimination, has prevailed on the county’s appeal.

Division Chief George Corley was terminated by the San Bernardino County Fire Protection District in February, 2012, ostensibly because his management style conflicted with that of newly appointed Fire Chief Mark Hartwig. Chief Corely was 58 at the time. As explained in the decision:

  • In 2003, after a lengthy period of employment as a firefighter with the United States Forest Service, Corley accepted a position with the District as a battalion chief.
  • Corley was promoted to the rank of division chief in 2005. While working for the District, Corley received numerous awards.
  • A former District fire chief testified that Corley was “doing a very good job dealing with the communities” that he served.
  • Corley’s employee file contained no evidence of discipline.
  • In his 2010 performance evaluation, Corley received an “exceeds standards” overall rating.
  • In May 2011, the County of San Bernardino’s Chief Executive Officer, Greg Devereaux, appointed Mark Hartwig as Fire Chief for the District.
  • Chief Hartwig terminated Corley’s employment with the District in February 2012.
  • At the time of his discharge, Corley was 58 years old, and was the oldest of the District’s six division chiefs.
  • In July 2011, Chief Hartwig and his deputy chief reassigned Corley to a location far from where Corley had worked for his entire career, to a region with a firefighting landscape with which Corley had little experience.
  • Corley presented evidence from which the jury could infer that Chief Hartwig ordered the reassignment to encourage Corley to retire.
  • Corley also presented extensive evidence that the District’s stated reason for his termination—incompatibility of management style—was a pretext for age discrimination.
  • Chief Hartwig testified that among the reasons that led him to conclude that Corley’s management style was incompatible with his own was that Corley failed to prepare a contingency plan that Hartwig had asked all division chiefs to prepare.
  • However, Chief Hartwig acknowledged that he had never asked for, nor received, a completed contingency plan from any of the division chiefs.
  • Corley also testified that he did not learn of any of the reasons that Chief Hartwig offered for concluding that Corley lacked a compatible management style until after he was terminated and filed this action.
  • Further, while it had been the practice of the District to use progressive discipline with its employees, Corley did not receive any progressive discipline before being terminated.
  • While Corley’s direct supervisor, former deputy fire chief Dan Odom, testified that he had given Corley verbal warnings to improve his management style, Odom also acknowledged that he had never documented such warnings, as is required.
  • Odom also acknowledged that he had not given Corley any written warnings or placed him on a work performance improvement plan.

Chief Corley’s replacement was a newly appointed battalion chief who was ten years younger, but perhaps more importantly, was paid $11,372 per year less due to his lower seniority. According to testimony at trial, there was a cascading effect of lowered cost was as junior personnel were moved up in response to Chief Corely’s termination.

At trial, the jury found the county liable for age discrimination and awarded him $597,629 in damages. The trial court subsequently awarded Chief Corley, $853,443 in attorney fees, and $40,733 in costs. The county appealed. From the decision handed down by the Fourth Appellate District of the California Court of Appeals:

  • On appeal, the District contends that the trial court erred in denying its request to instruct the jury pursuant to a provision in the Firefighters’ Procedural Bill of Rights.
  • The District also claims that the trial court erred in instructing the jury that “the use of salary as the basis for differentiating between employees when terminating employment may be a factor used to constitute age discrimination” if the employer’s termination policy adversely affects older workers.
  • The District further maintains that there is insufficient evidence to support the jury’s award of damages based on its implicit finding that Corley would have been promoted but for the District’s discrimination.
  • Finally, the District claims that the trial court abused its discretion in applying a multiplier in awarding Corley statutory attorney fees.
  • [W]e… conclude that the trial court did not err in refusing to instruct the jury pursuant to [the Firefighters’ Procedural Bill of Rights] provision.
  • [W]e conclude that the District fails to establish any reversible error with respect to its remaining claims. Accordingly, we affirm the judgment.

Here is a copy of the decision: Corley v San Bernardino County

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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