Chicago Fire Prevails in Discrimination Suit

The Chicago Fire Department has prevailed in a lawsuit filed in 2016 by a Hispanic firefighter who claimed he was the victim of a hostile workplace. The United States District Court for the Northern District of Illinois granted a summary judgment to the city last Friday.

The suit was brought by Firefighter Ricardo Gomez, who is of Puerto Rican ancestry. Gomez complained of being discriminated against by his colleagues in 2012 and 2014. Each time he complained, the city promptly investigated his allegations and took steps to address his concerns.

The case is worth an in-depth review because it shows the importance of promptly and appropriately responding to workplace complaints. The Chicago Fire Department’s handling of Gomez’s complaints was pretty close to text-book. The devil is in the details of cases like this, and for that reason a significant portion of the facts as explained in the decision are provided below. To be fair, many additional facts in the decision are also relevant that are not included. I would encourage those with HR responsibilities (particularly chief officers and HR professionals) to read the decision in full:

  • According to Gomez, on or about January 28, 2012 and while at Engine 110, a form completed by CFD personnel to request a transfer to another firehouse with the word “spic” written on it fell out of his locker.
  • During the investigation, Gomez alleged that he had received other (blank) transfer forms while at Engine 110: in his work boots in May 2011; in his locker in October 2011; and in his work coat in January 2012.
  • Gomez had not reported these or any other incidents previously.
  • Gomez complained to investigators that he “didn’t feel like part of the clique,” and that neither the Caucasian firefighters nor Hispanic engineer Alfredo Ruiz spoke to him.
  • Gomez requested a transfer out of Engine 110 on or about February 12, 2012.
  • He was thereafter … transferred to Engine 89.
  • On or about April 27, 2014, more than two years after his January 2012 report and while still assigned to Engine 89, Gomez showed his commanding officer Lt. Ted Maj a transfer form that he alleged fell out of his equipment that day.
  • On it were the handwritten words “get out and swim back to your sh*t hole.”
  • Gomez told investigators that he suspected that David Comiskey—a Caucasian fellow firefighter of the same rank—wrote the note, and reported for the first time that Comiskey also swore at him and was “derogatory and belittling.”
  • Gomez complained about other acts alleged to have occurred at Engine 89, including finding a spoiled banana in his pants pocket in October 2013, a transfer form pasted to his locker on February 8, 2014, a nail in his boot on February 14, 2014, and that his helmet was tampered with and his mask pulled out of its pouch.
  • Gomez accused Comiskey of having something to do with the alleged equipment tampering.
  • He further stated that he found blank transfer forms in his gear or locker every couple of months for about 2 years and that orange stickers used for newly hired firefighters were placed on his helmet and he was treated like a rookie despite having 9 years on the job.
  • Gomez told investigators that other than the January 2012 and April 2014 notes, he had reported no other notes or incidents of racial or ethnic harassment.
  • Gomez also described an incident with Comiskey that occurred while the 2012 investigation was ongoing in which Lt. Manuel Soto, who was relieving for his and Comiskey’s regular supervisor, Lt. Richard Lynch, sent Gomez upstairs to rest because he was not feeling well.
  • He claimed Comiskey got on the microphone in response and said “Hey f*ckin Gomez, why don’t you f*ckin lay up,” by which he meant take time off for medical reasons.
  • Gomez reported that he then came down to the kitchen to confront Comiskey, and Comiskey either “pretend[ed] to be cooking with [a] knife or us[ed] it to threaten me.”
  • The two men argued, and Lt. Soto intervened, telling Gomez to leave the kitchen, and Comiskey that he was “not going to have this stuff at work.”
  • In addition to his complaints about Comiskey, Gomez alleged for the first time that fellow firefighter James Pack harassed him in March or April 2014, telling Gomez to “get down here and help” clean up Pack’s mess.
  • Gomez also reported that unidentified Caucasian firefighters said the “n-word” every couple of days as well as “beaner” and “N…ger plumb,” including in the presence of unidentified officers.
  • Comiskey was suspended for six days for violations of CFD rules and regulations, including allegations that potentially fell under the City’s Violence in the Workplace Policy.
  • According to Gomez, Pack also made jokes about Hispanic people to others, which Gomez found offensive but chose to “laugh[] off” rather than complain.
  • Gomez filed a charge of discrimination with the Equal Employment Opportunity Commission in October 2014.  The EEOC issued a right to sue letter in May 2016.
  • Gomez then filed this lawsuit in August 2016, alleging civil rights violations under Title VII, Section 1981, Section 1983 and state law.
  • During his March 2018 deposition, Gomez alleged for the first time that throughout his first day on the job in November 2005, a firefighter called him “spic.” Gomez could not name the firefighter or any witness, and had not previously reported the incident.
  • To establish a prima facie case of hostile work environment, Gomez must show: (1) that he was subject to unwelcome harassment; (2) the harassment was based on his national origin or ethnicity; (3) the harassment was so severe or pervasive as to alter the conditions of his work environment by creating a hostile or abusive situation; and (4) that there is a basis for employer liability.
  • Additionally, the conduct complained of must be both subjectively and objectively offensive.
  • Gomez alleges that fellow firefighters David Comiskey and James Pack perpetrated harassment. There is no dispute that these individuals were co-workers, not supervisors.
  • As such, to establish a basis for employer liability, Gomez must prove that the City was negligent in discovering or remedying harassment.
  • The City argues that Gomez’s hostile work environment claim fails under the second, third, and fourth elements, and that there is no genuine issue of material fact to suggest that the alleged harassment was either objectively or subjectively offensive.
  • The undisputed evidence shows that Gomez made just two reports of harassment: the first in January 2012, and the second in April 2014.
  • The undisputed evidence also shows that the City responded promptly to each by reiterating with the relevant workforce that harassment and discrimination would not be tolerated and reviewing applicable policies with them on the very same date.
  • Thereafter, the City commenced investigations into both the notes that caused Gomez to complain, and the additional allegations of harassment he made during those investigations, some of which had occurred years prior. Gomez was promptly transferred to new fire stations in both instances.
  • Gomez argues that the 2014 investigation, resulting in the 2017 suspension of firefighter Comiskey for conduct occurring in 2012 … was too lengthy to deem the City’s response “prompt.”
  • But the investigation’s duration resulted in part from the sheer number of issues Gomez raised for the first time (including the knife incident and the additional allegation of retaliation during his lengthy medical leave). And there is no dispute that the City commenced remediation efforts the day of Gomez’s initial April 2014 report, including by reinforcing the policy against discrimination and harassment with all staff present and emphasizing that such actions would not be tolerated, and reporting the complaint up the chain as required.
  • Nor can Gomez point to any harm resulting from the delay. To the contrary, Gomez reported that his new assignment at Engine 86 was “fantastic,” and other than the alleged retaliation during his medical leave (which is not part of his complaint), raised no new complaints. Simply put, “[a]lthough the process may have been imperfect, it was not negligent.
  • For these reasons, the Court grants the City’s motion for summary judgment.

Here is a copy of the decision:

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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