Norfolk Race Discrimination Case Fails But Suit May Proceed on Retaliation Claims

A race discrimination and retaliation lawsuit filed by captain with the Norfolk Fire Department will proceed on the retaliation claims, but the original discrimination allegation has been dismissed. The suit was filed by Captain Rodney Mills who alleged the city denied his request for a waiver from the two-years in grade requirement to sit for the battalion chief’s exam because of his race.

According to Captain Mills, shortly after he filed a single count race discrimination lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964, the city and its fire chief began retaliating against him. The retaliation included requiring him to take a drug test, calling him while on vacation to complain about his handling of an assignment, issuing him a counselling form, and fostering a hostile work environment.

Prompted by the retaliation, Captain Mills sought to file an amended complaint to add three new counts, one naming the fire chief as a defendant, and two alleging retaliation. The city in turn moved to dismiss the original complaint, and deny Captain Mills’ motion to amend.

US District Court Judge Raymond Jackson granted the city’s motion on the original count of discrimination concluding that a lawsuit filed by Captain Mills in 2020 on the same facts, barred his suing the second time around (res judicata). The 2020 suit was dismissed because Captain Mills failed to file a complaint with the Equal Employment Opportunity Commission before filing suit in court.

Judge Jackson concluded that the three remaining counts were not barred by res judicata, and thus those counts can continue. In ruling on the retaliation claims, he held:

  • The Court finds that Plaintiff’s allegations of retaliatory conduct and hostile work environment go beyond that of his Title VII suit.
  • “It would defy logic and fairness to preclude a future claim based on such conduct.”
  • In the Title VII suit, Plaintiff’s complaint was limited to conduct giving rise to Norfolk’s failure to provide a waiver such that Plaintiff could apply for the Battalion Chief position.
  • Plaintiff seeks relief from subsequent conduct.
  • Accordingly, Counts III and IV are not barred by res judicata.

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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