California Firefighter Sues for Discrimination

An African-American firefighter who claims he suffered years of harassment, discrimination and retaliation on account of his race, has filed suit against the City of Fresno, city officials and 21 members of the Fresno Fire Department.

David Phillips-Kerley filed suit last week in US District Court for the Eastern District of California. The 21-count complaint accuses the defendants of broad range misdeeds, including Title VII violations, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, state law discrimination, whistleblower retaliation, and violations of the California Firefighters Procedural Bill of Rights. The named defendants include the city manager, the city labor relations manager, the fire chief, deputy chiefs, battalion chiefs captains, firefighters and the union president.

Phillips-Kerley claims his problems began in August of 2010, when colleagues began circulating rumors about him. From the complaint:

  • In August of 2010, as Plaintiff was preparing to go off-duty, Plaintiff asked a favor of a fellow employee, if they wouldn’t mind removing Plaintiff’s towels, which he forgot about earlier, from the dryer once they were done.
  • The request was accepted, and before Plaintiff departed, Plaintiff left a Post-it note on the dryer to notify others to whom the towels belonged.
  • Within one week, this simple request spun out of hand into a defamatory story that had found its way throughout the department, grossly falsifying negative information against the Plaintiff.
  • Plaintiff returned to work to find Post-it notes left for him with messages placed on drawers and cabinets throughout the kitchen.
  • It was at this point that Plaintiff came forward with the recent development and requested assistance from his Captain, Defendant Ron Caldwell.
  • Caldwell, however, denied the Plaintiff’s request, stating that, “Those are just jokes.”
  • By Caldwell’s comment and unwillingness to perform his rank duties, Plaintiff understood his captain’s decision to condone the actions taken against the Plaintiff.
  • In September 2010, Plaintiff was called into an office at Station 12 of the Fresno City Fire Department for an interrogation meeting with his supervisors, Fire Captains Mike Gill and Ronald Caldwell.
  • During this interrogation, Gill and Caldwell made vague allegations regarding the possibility that Plaintiff could be disciplined.
  • Gill and Caldwell refused to clearly articulate their allegations but made it clear to Plaintiff that they were looking for a reason to discipline Plaintiff.
  • Gill and Caldwell refused to allow Plaintiff any representation at the meeting, despite the fact that the California Firefighter’s Bill of Rights (hereinafter, the “FBOR”) guarantees Plaintiff the right to representation at any meeting in which disciplinary action could result.
  • Plaintiff understood that this was an attempt at unwarranted disciplinary action was the result of the result of Gill and Caldwell’s retaliatory agenda against Plaintiff for Plaintiff’s opposition of Gill and Caldwell’s unlawful employment practices.

The complaint goes on to allege numerous examples of investigations being instituted against him for no reason, and him being treated unfairly. It specifically accuses an investigator of coming to his house and harassing his family; the fire chief of causing his wife to lose her job at Valley Children’s Hospital; and the city of causing him to be passed over for a job at another fire department.

Here is a copy of the complaint:  Phillips-Kerley v Fresno Complaint 2018

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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