Fifth Circuit Rejects Houston Firefighters’ Appeal Over Noose Incident Suit

The US Fifth Circuit Court of Appeals has ruled against two Houston firefighters who claim they were discriminated and retaliated against on account of their race.

Jesse O’Quinn and Albert Bennett, both African-Americans, claim their problems began in 2009 after O’Quinn reported a noose in a firefighter’s locker. Both were assigned to the Public Affairs Unit at the time. O’Quinn stopped by a fire station to teach a class, noticed the noose, and took a photo of it.  He told Bennett and they both went to speak to an African American Assistant Chief, Rick Flanagan, who was not in their chain of command.

An investigation into the incident concluded it was a “fisherman’s knot.” Bennett was reprimanded for going outside the chain of command. Both O’Quinn and Bennett claimed that after reporting the incident they were subjected to increased scrutiny and a hostile work environment. According to the original complaint:

  • O’Quinn’s co-workers accused him of lying, accused him of planting the noose himself, and accused him of complaining about a noose when the rope was really something else.
  • O’Quinn’s house was broken into shortly after the incident and his laptop computer, city cell phone, and television were stolen, among other things.
  • O’Quinn’s supervisors openly questioned whether he was being truthful about the thefts.
  • O’Quinn was subjected to unequal treatment by being required to respond to documentation of insignificant events that non-Black firefighters were not required to document.
  • Furthermore, O’Quinn’s actions on and off the job became scrutinized and watched more closely than non-Black firefighters.
  • Bennett was told that it was inappropriate for him to speak with Chief Flanagan and that he was going to be disciplined by having a statement included in his permanent personnel file for insubordination because he had talked to Chief Flanagan about the noose.
  • At the time, Bennett was visibly upset, and indicated to them that he did not think it was acceptable to discipline him for asking for advice from a supervisor about a racist symbol.
  • Bennett believed that is was done in retaliation for him raising the issue of the hostile work environment toward African Americans in the Houston Fire Department.
  • A civilian colleague accused Bennett of planting the noose himself.
  •  In addition, Bennett received emails and phone calls accusing him of having placed the noose in the locker.

The trial court ruled in favor of the city, concluding that O’Quinn and Bennett were unable to prove they had been subjected to an adverse employment action or that similarly situated employees were treated differently. O’Quinn and Bennett appealed.

In upholding the trial court, the 5th Circuit held:

  • The district court concluded, as we do, that O’Quinn and Bennett offered insufficient evidence of an adverse employment action.
  • On appeal, plaintiffs’ only theory of recovery is that they lost overtime wages.
  • And at oral argument, plaintiffs’ counsel offered a compelling narrative that O’Quinn and Bennett lost overtime opportunities because of the City’s alleged retaliation, costing them approximately $20,000 a year.
  • If the record supported this conclusion, we may well have reversed.
  • After all, losing $20,000 in overtime wages—approximately 40% of the plaintiffs’ $45,000-50,000 base salary—would certainly “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”
  • But the assertions made by counsel at oral argument find no support in the record.
  • For example, counsel stated that O’Quinn testified that his “number of assignments decreased” which “cost [O’Quinn] approximately $20,000” in overtime wages.
  • We find no record support for those representations.
  • First, O’Quinn never once claimed he lost overtime opportunities. Instead he says that he lost some assignments and that the assignments he did receive were less favorable ones.
  • But he never says any of these changes affected his overtime.
  • Second, O’Quinn disclaimed that he lost any wages as a result of the City’s alleged retaliation.
  • As for Bennett, counsel represented that his overtime assignments were “cut entirely” and that Bennett had offered evidence of lost wages.
  • True enough, unlike O’Quinn, Bennett actually mentioned losing overtime and claimed lost wages as a result.
  • But he did not provide any evidence of which assignments he lost, how many assignments he lost, or the resulting decrease in his wages.
  • In short, Bennett provided no evidence that would allow a jury to find lost wages.
  • Accordingly, because the record facts do not support the claims made at oral argument and cannot defeat summary judgment, we affirm.

Here is a copy of the decision:

Here is the original complaint which pays out the factual basis for O’Quinn and Bennett’s allegations:

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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