FDNY Prevails in Discrimination Suit

A discrimination lawsuit filed by an FDNY probationary firefighter whose minor injuries caused him to be removed from two academies and unable to attend a third, has been dismissed. Xavier Lopez claims he was discriminated against on account of his Hispanic heritage and retaliated against for complaining about unfair treatment.

Lopez was a priority hire in January, 2014, but was placed on light duty after suffering an ankle injury the second week of the academy. He was admitted to a second academy in July, 2014, but suffered a knee injury in August, and again was placed on light duty. While on light duty, Lopez complained to EEO officers that white firefighters were given preferential light duty assignments. After Lopez was unable to return for a third academy, he was terminated in January 2015.

Lopez sued claiming discrimination, hostile work environment, and retaliation for having complained about disparate treatment while on light duty. US District Court Judge Nina Gershon rejected all of Lopez’s claims. Quoting from the ruling:

  • In support of his theory that he was treated differently because of his race or national origin, plaintiff points to six other firefighters who were given more than two opportunities to complete the fire academy.
  • But, of the six, four were priority hires like plaintiff, one was a Hispanic man like plaintiff, and plaintiff has not presented any evidence indicating that the injuries or situations of the two white firefighters who were given three opportunities were comparable to his.
  • As to his allegations that white probationary firefighters were given different—presumably better—assignments while on light duty; that Hispanic probationary firefighters were subjected to greater scrutiny while in the firefighter academy; and that white firefighters were allowed to go ahead of him in line at BHS, plaintiff’s conclusory statements, without more, are insufficient to meet his burden of showing that similarly situated white individuals were treated more favorably than employees of the protected group.
  • As to the discriminatory comments made about or to him while an FDNY employee, plaintiff fails to respond to defendant’s argument that, even assuming all the comments asserted by plaintiff were made, they were, at most, stray comments, attributed to non-decisionmakers and, as such, cannot serve as predicates for his discrimination claim.
  • Even if I were to treat plaintiff as having met the minimal burden of establishing a prima facie case, on the record as a whole, no reasonable jury could conclude that he was discriminated against on the basis of his race or national origin.
  • Defendant has presented evidence that plaintiff’s inability to return to a third firefighter academy based on subjective complaints of pain, unsupported by medical evidence, supplied a legitimate non-discriminatory reason for his termination.
  • Defendant is therefore “entitled to summary judgment unless [plaintiff] can point to evidence that reasonably supports a finding of prohibited discrimination.”
  • Defendant’s motion for summary judgment is granted and plaintiff’s Title VII claim for discrimination based on his race and national origin is dismissed.
  • Plaintiff also brings a claim under Title VII for hostile work environment based on his poor treatment by colleagues, supervisors, and medical staff at the FDNY because of his race and national origin.
  • It is “axiomatic” that a plaintiff alleging a hostile work environment claim must demonstrate that the conduct occurred because of a protected characteristic.
  • Plaintiff must also present sufficient evidence to prove that the harassment he suffered based on his race or national origin was “sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.”
  • Even taking into consideration all of the statements or acts that can be attributed to plaintiff’s race or national origin, they are insufficient to constitute an intolerable alteration of the terms and conditions of his employment.
  • Under the totality of circumstances, these incidents amount to insufficient evidence for a rational jury to conclude by a preponderance of the evidence that plaintiff’s workplace was permeated with abusive, race-based hostilities.
  • Defendant’s motion for summary judgment on the hostile work environment claim is granted and plaintiff’s Title VII hostile work environment claim based on his race and national origin is dismissed.
  • Although plaintiff asserts that he was terminated because he complained of discriminatory behavior by other members of the FDNY, he presents no evidence to suggest that the documented concerns of the medical staff were mere pretext for a retaliatory motive.
  • Defendant’s motion for summary judgment on this claim is granted, and plaintiff’s claim for Title VII retaliation is dismissed.

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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