Detroit Firefighter Loses Reverse Discrimination Appeal

The Michigan Court of Appeals has rejected the appeal of a Detroit firefighter who claims he failed his probationary period as a lieutenant on account of his race and disability discrimination. Toby O’Brien claims his demotion in 2014 was attributable to his dyslexia and because he is white.

O’Brien received a “probationary promotion” to lieutenant in 2014 and was assigned as an instructor at the fire department’s training academy. He claims that Chief of Training Steven Johnson failed him on his probation and removed him from the academy “due to a campaign of harassment directed at him by defendant Carnagie Burnside because he has dyslexia.”

O’Brien “also claimed that Burnside, a captain at the time, was protected at least in part by institutional racism practiced by the predominantly African-American staff, as plaintiff is Caucasian.”

O’Brien sued the city, Captain Burnside, and Chief Johnson. The trial court rejected O’Brien’s claims concluding there was “no evidence that plaintiff was targeted and removed from the academy because of either his dyslexia or his race, and it held that plaintiff did not establish a genuine issue of material fact with respect to his intentional tort claims.”

The Court of Appeals affirmed the trial court, stating:

  • On April 28, 2014, defendant Steven Johnson, who was then “Chief of Training,” ordered plaintiff to read materials to the cadets.
  • Plaintiff refused to do so, and explained that he has dyslexia, which Johnson accepted as a valid basis for the refusal to read aloud.
  • Edwards overheard the conversation and shared the information with Burnside.
  • Plaintiff contends that “Captain Burnside disclosed to the entire training academy staff that [plaintiff] was dyslexic.”
  • The evidence suggests that Burnside had a general habit of demeaning others, but he usually managed to evade serious consequences.
  • The next day, plaintiff was summoned to a meeting with Johnson, who apologized to plaintiff, asserted that the department was not supposed to operate like that, and summoned Burnside to apologize.
  • Burnside, however, believed he had nothing for which to apologize, and he became verbally hostile and abusive, eventually requiring him to be escorted off the premises.
  • Johnson immediately suspended Burnside for his unruly conduct when asked to apologize to plaintiff.
  • Plaintiff testified at his deposition that Burnside initially returned to the academy for one day, on July 9, and Johnson ordered Burnside to remain on the second floor only.
  • However, Johnson ordered Burnside back out of the building when plaintiff expressed the view that he was still uncomfortable.
  • Burnside returned fully by July 23, 2014. The next day, a staff meeting was held, at which Johnson advised the staff that he would be absent on the 28th and that Burnside would be in charge in his absence.
  • On July 25, Burnside came into one of plaintiff’s classrooms and yelled at the cadets, although not at plaintiff.
  • Johnson agreed that Burnside violated a direct order by doing so.
  • On July 28 or 29, plaintiff advised Johnson that he would not set foot in the building if Burnside was present, and in fact, he never did return to the building.
  • Johnson took this as plaintiff aborting his probation, and on the basis of plaintiff’s evaluations as of that date, he determined that plaintiff had failed.
  • Plaintiff was sent back to firefighting.
  • A claim of discrimination on the basis of membership in a protected class requires evidence that the discrimination was because of membership in that protected class.
  • In the instant matter, we cannot find any fault in Johnson, a superior officer, requiring a junior officer to substantiate his explanation for refusing to obey a direct order, at least where, as here, plaintiff’s reason for doing so had not already been communicated.
  • Thus, contrary to plaintiff’s contention, Johnson’s asking plaintiff for verification of his dyslexia does not support a finding that Johnson was discriminating against plaintiff based on his having dyslexia.
  • As for Burnside, we agree that his decision to raise plaintiff’s reading “problem” in front of the entire training academy staff was insensitive and unprofessional.
  • Although it did not technically force plaintiff to disclose his dyslexia, and was not itself a full disclosure of the dyslexia, it did place plaintiff on the spot, as it was obvious what Burnside was referring to in his remarks.
  • Nevertheless, we find nothing intrinsically improper about Burnside, as another superior officer, also expressing concern about a refusal to obey an order, or in wishing to rectify a possible hindrance to teaching at the academy.
  • Furthermore, plaintiff’s dyslexia was already known to others at that point, as revealed by plaintiff himself.
  • Burnside’s volatile reaction upon being asked to apologize amounts to nothing more than a grossly inappropriate refusal to admit that he had acted improperly or with insensitivity.
  • His conduct was not directed at plaintiff’s dyslexia, it was directed at the need to apologize for embarrassing plaintiff.
  • There is no support for a finding that Burnside’s return to work after a temporary suspension, despite plaintiff’s refusal to be in the same building with him, was due to any animus or discrimination against plaintiff for having dyslexia.
  • Instead, it is reflective of a department policy or culture that favored superiors over inferiors when a conflict between the two arose.
  • For better or for worse, employers are permitted to make foolish or self-destructive decisions or policies.
  • Plaintiff has not provided any evidence tending to show that he suffered any adverse action motivated by discriminatory animus toward his dyslexia, even if his dyslexia happened to be the trigger for a cascade of other poor management decisions.
  • “Speculation and conjecture are insufficient to create an issue of material fact.”
  • Plaintiff has therefore not made out a prima facie case of discrimination under the PWDCRA.

Here is a copy of the decision, issued last week: OBrien v. City of Detroit 2018 Mich. App. LEXIS 2601

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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