Topeka Prevails in Gender Discrimination Suit

The US District Court for the District of Kansas has granted summary judgment to the City of Topeka in a suit brought by a female firefighter alleging she was subjected to a hostile work environment and retaliation.

Amy Bermudez, a 25-year veteran of the department, filed suit in 2018 alleging the harassment stretched back to 2014. She claims the harassment became unbearable in 2017 leading her to resign on December 1, 2017.

Like most fire service employment discrimination claims, the case is highly factual. The ruling goes into great detail for those who are interested. We will review some of the allegations here, but it is not possible to recount all of them. From the decision:

  • The TFD hired Bermudez as a firefighter in 1992.
  • In 1999, Bermudez’s title was Fire Inspector I.
  • By the time she left the TFD in 2017, she was a Fire Inspector III.
  • As a fire inspector, Bermudez reported to the fire marshal, Michael Martin.
  • Martin became the fire marshal in 2014.
  • Bermudez did not believe Martin was qualified to be fire marshal because he relied on her to help him carry out his job responsibilities.
  • In 2014, Bermudez filed an EEOC charge regarding the TFD’s failure to promote her to fire marshal
  • Following that complaint, Bermudez alleges that Martin mistreated her. Specifically, Bermudez alleges that Martin:
    • did not tell her about decisions announced at meetings in March and April 2014
    • sent her some emails between April 21 through May 12, 2014, about how she entered her lunch times in the TFD’s new time-clock system, which she viewed as “badgering,”
    • did not inform her about or send her to certain training classes
    • did not inform her that a training class she was scheduled to attend in May 2014 was canceled
    • in May 2014, asked another inspector to bring him a Knox Box access key for a property that was in Bermudez’s territory
    • failed to forward a request for a Knox Box key to Bermudez on May 21, 2014, which caused her “professional embarrassment,”
    • in May 2014, asked Bermudez three times when an inspection was scheduled and when it would be completed, and then allegedly “responded harshly” to Bermudez’s answer.
  • All of these actions took place in 2014. Bermudez has not included any allegations about any actions taken against her in 2015 or 2016.
  • Craig Duke became fire chief on March 20, 2017.
  • Bermudez requested a meeting with Duke about Martin.
  • Bermudez alleges that Duke was demeaning, belittling, and condescending at the meeting.
  • An HR representative asked Bermudez if she wanted to make a written complaint, but Bermudez did not.
  • Bermudez contends that a written complaint was not necessary and that the HR representative should have investigated her complaint about Duke anyway.
  • In September 2017, the TFD acquired new self-contained breathing equipment which required training for all TFD employees.
  • Bermudez … asked to be excused from the confidence course.
  • Bermudez asked because she had not been provided suppression training in her 18 years as a fire inspector.
  • Although Bermudez thought she could have completed the confidence course, she felt she should not have to do it because she was not given time to exercise during the work day since she became an inspector.
  • At the Airpack training, the training chief told Bermudez and Conway they could observe rather than participate in the confidence course.
  • [Some of the firefighters allegedly made some comments about Bermudez and Conway  not having to complete the SCBA class, which offended Bermudez].
  • Martin completed the Airpack training.
  • Martin posted on the TFD’s Twitter account a picture of himself wearing a tie and the Airpack equipment, and captioned it, “No one is immune from training on the new air packs #TrainingInATie.”
  • The tweet came at least a week after Bermudez and Conway attended the Airpack training.
  • Martin testified that his intent was to make fun of himself for having done the Airpack training while wearing a tie, and that the statement “no one is immune” was meant to refer to him being on senior TFD staff. He testified he was not thinking about Bermudez or Conway.
  • Bermudez believes that the tweet was directed at her and Conway because it said no one was immune from training, and they did not do the training.
  • HR investigated the tweet and found no violation of City policy.
  • On December 1, 2017, Bermudez submitted a resignation letter, citing intolerable working conditions.

Bermudez waited until April 9, 2018 to file a second complaint with the Equal Employment Opportunity Commission. For those not familiar with the significance of filing with the EEOC, absent a “continuing violation”, a person claiming employment discrimination is limited to acts of discrimination that occurred 300 days prior to the EEOC filing.

In ruling against Bermudez, Judge Holly L. Teeter concluded:

  • Bermudez contends the actions dating back to 2014 amount to a continuing stream of retaliatory harassment and that all of those actions should be considered in evaluating whether she has presented a viable claim for submission to a jury.
  • Discrete claims of discrimination or retaliation occur on the day the act happened, and that must fall within the 300-day period to be actionable
  • Here, Bermudez filed her EEOC complaint on April 9, 2018.
  • Three hundred days before that date is June 14, 2017.
  • Accordingly, to assert a timely claim of retaliatory harassment, Bermudez must identify harassment that occurred after June 14, 2017. Any acts of harassment that occurred before June 14, 2017, must be sufficiently related to actions after that date to be considered in evaluating the overall claim.
  • Only the Airpack training incident and tweet that occurred in September 2017 fall within the 300-day period preceding Bermudez’s EEOC complaint.
  • The Court concludes that no reasonable jury could find that the events outside the 300-day period bear any relationship to the September 2017 Airpack training and tweet.
  • The Court finds that this conduct, even when considered collectively, is not sufficiently severe or pervasive that it would dissuade a reasonable worker from engaging in protected activity.
  • Both incidents were very tame and neither was even outwardly directed at Bermudez.
  • A remark that someone should do firefighter training to consider themselves a fire inspector and then tweeting that no one is immune from training is, at worst, rude or mildly passive aggressive. But it does not objectively rise to the level of conduct that would dissuade a reasonable employee from engaging in protected conduct.
  • It is well established that Title VII is not “a general civility code for the American workplace.”
  • Nor is it the Court’s role “to mandate that certain individuals work on their interpersonal skills and cease engaging in inter-departmental personality conflicts.”
  • “[P]etty slights, minor annoyances, and simple lack of good manners” do not deter employees from pursuing their rights under Title VII.
  • Even construing all inferences in Bermudez’s favor, the actionable conduct she complains of falls into the category of petty slights, and no reasonable jury could find otherwise.
  • Accordingly, the Court finds that no reasonable jury could find for Bermudez on her claim of retaliatory harassment.

Here is a copy of the decision.

Here is a copy of the original complaint:

More on the story.

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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