Chief Rubin Now 11-0

This just in…. the judge in a controversial whistleblower lawsuit filed by two former DC fire investigators has ruled in favor of the DC Fire Department and former Fire Chief Dennis Rubin.

The decision came this morning in the case of Gregory Bowyer and Gerald Pennington v. the District of Columbia, Dennis L. Rubin, and Gary Palmer, Jr..

in 2007, Bowyer and Pennington were transferred out of the Fire Investigations Unit. They filed suit in 2009  under 42 U.S.C. § 1983 alleging race discrimination, violation of their First Amendment rights, and violation of the District of Columbia Whistleblower Protection Act. They claimed their transfers were retaliation for speaking out about a variety of issues within the DC Fire Department (now DCFEMS). They also alleged that Chief Rubin sought to implement “a race based policy under which he assigned more white personnel to the FIU to increase the percentage of white investigators.”

The case sparked a great deal of controversy in DC, including a demonstration where one minority group burned Chief Rubin in effigy, and some even referred to him as the “Jim Crow Fire Chief”.

In a 63 page decision Judge Beryl A. Howell granted a summary judgment to the defendants. In the court’s own words:

…it is clear that the plaintiffs had during the time period in question, and perhaps continue to have, a tumultuous relationship with their colleagues and superiors. The plaintiffs’ frustration with the way the DCFEMS was managed and the way their superiors handled the plaintiffs’ professional concerns is manifest in their myriad allegations. Indeed, workplaces can be breeding grounds for hurt feelings, disagreements, and tension, and it is all the more unfortunate that a municipal fire department would fall prey to such dysfunction because its mission should remain focused on public safety, rather than being side-tracked with intra-workplace squabbles. Nevertheless, there is a distinct separation—sometimes a sliver and sometimes a gulf—between workplace problems that present colorable legal claims and those that reflect the friction of strong disagreements. As the discussion below makes plain, the factual record in this case is replete with significant gaps and omissions, which makes it difficult to discern on which side of that separation the plaintiffs’ claims lay. In the final calculus, however, the gaps and omissions in the summary judgment record are simply too pervasive to allow the plaintiffs’ claims to move forward.

Here is a copy of the ruling. Bowyer

If you are keeping count, Dennis Rubin is now 11-0 in his epic courtroom battles. He continues to be the victim of vicious personal attacks… and I fully expect we will see some of those attacks re-emerge again here.

12/21/12 UPDATE: In response to some off-line questions about why the investigators were transferred, I located the following correspondence that I understand was part of the court case, and explains some of the reasons for Chief Rubin’s decision to transfer them:

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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