A military discrimination lawsuit filed by an assistant chief with the Montgomery Fire Department, has been dismissed. Assistant Chief Ted Clark filed suit last year accusing the city of denying him a promotion, denying him family medical leave, and retaliating against him on account of his military service with the Alabama Army National Guard (ALARNG).
Chief Clark served as a member of ALARNG for the duration of his thirty-year career. While serving in both roles he was promoted to lieutenant, captain, district chief and assistant chief with MFD. In 2016, he was promoted to Sergeant Major in the ALARNG. According to Chief Clark, that promotion prompted Fire Chief Miford Jordan to inform him that he could not promote him any higher in MFD due to the time commitments associated with his ALARNG position. Chief Jordan was a former ALARNG member himself.
Chief Clark reported the comment to his ALARNG commanders prompting them to reach out to Chief Jordan. During this conversation, Chief Jordan informed them that Chief Clark “had lost his temper and made verbal threats against other firefighters.”
Shortly thereafter, Chief Clark sought leave under the Family Medical Leave Act to attend to his mother who was suffering from dementia. According to the ruling “Clark continued to drill and perform annual training in the ALARNG while on FLMA leave from the MFD. He also periodically checked in on the dry-cleaning business he owned.”
After exhausting that leave in November, 2018, the city granted him an extension to January 2, 2019. Thereafter, Chief Clark opted to retire. He then filed suit alleging discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA), and a violation of his due process rights.
In granting the city’s motion for summary judgment, US Magistrate Judge Stephen M. Doyle stated:
- The employee has the initial burden of establishing discriminatory motive by showing by a preponderance of the evidence that their military status was a motivating factor in their employer’s decision.
- Clark argues in an entirely conclusory fashion that “based upon all of the facts presented, Clark has created a material dispute of fact as to whether his military service was a motivating factor in the City’s harassment and refusal to promote Clark.”
- Clark fails to meaningfully develop this argument and does not identify what evidence in the summary judgment record he thinks supports his USERRA discrimination claim.
- The undisputed facts here show that MFD promoted Clark to Lieutenant in 2005, Captain in 2008, District Chief in 2012, and Assistant Chief in 2015.
- Clark was serving in the ALARNG at the time of each of these promotions, and Chief Jordan recommended him for every promotion.
- Therefore, Clark’s failure to promote claim can only concern his non-selection for MFD’s Chief of Operations position.
- The Chief of Operations is an appointed position assigned by the Fire Chief that serves at the Chief’s discretion.
- The Chief of Operations maintains the rank of Assistant Chief but receives incentive pay when assigned to the position.
- Clark’s non-selection claim here fails at the outset because the undisputed facts show that he never applied for or expressed any interest in the Chief of Operations position.
- Although USERRA offers broad protections, it cannot be stretched so far as to impose liability on an employer for failing to select someone for a job they never applied for.
- In addition, even if he had applied for the job, Clark’s evidence fails to overcome the City’s affirmative defense. Clark alleges that sometime in 2016 Chief Jordan told him that he could not promote him any higher than Assistant Chief because the time commitment required to be a Sergeant Major in the ALARNG would interfere with the job.
- Accepting Clark’s testimony concerning Jordan’s alleged statements as true, it is prima facie evidence that his ALARNG membership was a motivating factor in his non-selection for Chief of Operations. But this finding does not end the inquiry.
- The City has proffered evidence that when Chief Jordan selected Bolling as Chief of Operations in February 2017, Bolling had served as an Assistant Chief since October 2008, a period of eight years and four months, and had managed many of MFD’s divisions.
- In contrast, Clark had been promoted to Assistant Chief in June 2016 and had only served in that position for eight months at the time of Bolling’s appointment.
- Bolling’s far greater experience is a legitimate reason that, standing alone, would have caused the City to select Bolling over Clark regardless of Clark’s ALARNG service
- Clark states only that “I was the most qualified candidate for the Chief of Operations position,” and completely fails to adduce any evidence showing he was better qualified than Bolling.
- A jury could not find that Clark was better qualified than Bolling on the basis of his unsupported conclusory statement, and the City’s affirmative defense prevails.
- Clark apparently intends to bring a USERRA harassment claim and argues that he “has created a material dispute of fact as to whether his military service was a motivating factor in the City’s harassment.
- Clark’s primary evidence of harassment is his claim that beginning in 2016 and continuing through 2018 Chief Jordan often “made sly remarks” when passing such as “You’re not drilling today?”
- Accepting this as true, it hardly constitutes the type of severe or pervasive conduct that alters the conditions of employment and creates an abusive work environment.
- Clark has not produced sufficient evidence to allow a jury to find in his favor on a USERRA harassment claim, particularly in light of MFD’s favorable treatment of Clark throughout his ALARNG career.
Here is a copy of the ruling: