California Firefighter Sues Alleging Race Discrimination

A California firefighter who was demoted from probationary captain to firefighter engineer, has filed suit alleging race discrimination, retaliation, constructive termination, emotional distress, and FMLA violations. JuDon Cherry, who identifies himself in the complaint as an “African American male”, filed suit against the Contra Costa County Fire Protection District in US District Court for the Northern District of California.

Cherry claims that he was subjected to “pervasive and severe harassment and discrimination,” and that the department “failed to investigate and prevent incidents of racial harassment, despite numerous reports and complaints, thereby evidencing a pattern and practice of racial discrimination and harassment.” He further claims that the local FOOLs organization serves to “disadvantage” minority firefighters within the CCCFPD.

Quoting from the complaint:

  • Plaintiff is informed and believes that Defendant CCCFPD incorporates, relies upon, and contains an exclusive organization named the Diablo Fraternal Order Of Leatherheads.
  • Plaintiff is further informed and believes that the Diablo Fools was founded in 1995 in Contra Costa County and is comprised exclusively of Caucasian male fire fighters who refer to themselves as the “Brotherhood.”
  • The Diablo Fools socialize together and conduct private fire-fighting training programs in which they instruct other white male fire fighters on particular strategies for testing, fighting fires and operating equipment.
  • Members of the Diablo Fools follow unwritten policies which are not accessible to Plaintiff and other African-American fire fighters, including their own jargon and language, which they incorporate into their daily work routines for Defendant CCCFPD.
  • Plaintiff and other minorities are at a distinct disadvantage and are frequently criticized on the job when they are unable to understand or perform techniques and procedures implemented by members of the Diablo Fools.
  • In or around early 2020, Plaintiff applied for a Fire Captain position at CCCFPD.
  • He did so despite warnings from other African American and Asian individuals who previously tested for the Captain position and were forced to endure severe and pervasive harassment that their white counterparts were not subjected to.
  • Plaintiff was provisionally promoted to Fire Captain in July 2020, subject to passing written and performance examinations over a 10-month probationary period.
  • During Plaintiff’s probationary period, his assigned supervisor, Scott Valencia (white male), frequently targeted and singled out Plaintiff with excessive criticism while on calls, in front of Plaintiff’s subordinates.
  • Plaintiff’s white counterparts who were also on probation assignment were not ridiculed for identical conduct.
  • Plaintiff confronted Defendant Valencia about the harassment, and requested that Valencia refrain from berating and belittling Plaintiff while on calls with his team.
  • However, the harassment worsened after his complaint and continued throughout his entire probationary period.
  • Therefore, Plaintiff reported the abuse to Training Captain Noel Luiz.
  • Captain Luiz encouraged Plaintiff to make a formal complaint with the Training Chief, Lon Goetsch.
  • On or around November 23, 2020, Plaintiff reported Scott Valencia’s discriminatory targeting to Training Chief Lon Goetsch.
  • In response to the complaints, Defendant Goetsch promised Plaintiff that he would be reassigned to a female Battalion Chief, however, the reassignment never occurred.
  • Instead, on Plaintiff’s next rotation one week later, in retaliation for Plaintiff’s complaints, Plaintiff was summoned to report for a drill led by Defendant Valencia and in front of Defendant Charles “Chuck” Stark, the Assistant Operations Chief.
  • The drill was designed solely for Plaintiff to lead four engine companies to conduct different fire attacking scenarios. Defendants provided Plaintiff no reasonable notice for this drill, and set him up to fail in front of upper management.
  • Plaintiff completed the drill and was told he passed the drill.
  • CCCFPD continued to subject Plaintiff to discriminatory supervision and training, which later proved detrimental to Plaintiff’s health and his success during the performance evaluations.
  • Noel Luiz stated during the probationary period that he felt uncomfortable assisting Plaintiff for fear of retaliation against himself as well.
  • As a result of the pervasive harassment from Defendant Valencia and other chiefs/supervisors, and CCCFPD’s ratification thereof, Plaintiff was forced to pause his probation and take medical leave from December 2020 – March 2021.
  • When Plaintiff returned from leave in late March 2021, he found his locker had been broken into and his personal belongings had been removed.
  • Plaintiff later learned that Defendant Valencia instructed Plaintiff’s colleagues to empty his locker without his consent.
  • Prior to Plaintiff’s return, he expressed to Noel Luiz that he did not want to go back to work under Defendant Valencia, and that he feared that Valencia would intentionally fail Plaintiff on the exam.
  • Noel Luiz stated to Plaintiff that the test was not a failure test, and was just for Plaintiff’s educational purposes.
  • Training Chief Lon Goetsch was informed of Plaintiff’s concerns, and nothing was done.
  • On April 14, 2021, upon Plaintiff’s return from medical leave, and while under extreme duress and distress, Plaintiff fell from second floor steps, injured his head and arm, and sustained a concussion while completing a drill during a performance examination for Scott Valencia.
  • Plaintiff experienced a brief loss of consciousness and orientation inside the building and had to be escorted out by the firefighters.
  • Plaintiff expressed discomfort, given the vision impairment he was experiencing.
  • Instead of offering medical attention to Plaintiff, Defendant Valencia ordered Plaintiff to complete the drill.
  • The testing continued without medical attention.
  • Thus, the testing conditions were such that Plaintiff was set up to fail.
  • During the written part of the evaluation that same day, Plaintiff was placed in a testing room with a single poster hanging on the wall directly in front of him.
  • The poster was of the television character Cosmo Kramer from the show Seinfeld.
  • Plaintiff had previously explained to CCCFPD personnel that the actor who played Cosmo Kramer (Michael Richards) was well known for publicly making several racist statements referencing slavery and calling people the N-word.
  • Plaintiff had previously made a formal complaint to have the poster removed.
  • However, it reappeared on the day he was scheduled to take his written exam and practical exam, and it was placed in Plaintiff’s direct line of vision.
  • Plaintiff was also falsely accused of cheating on a practical exam as pretext for CCCFPD’s discriminatory intent to fail Plaintiff.
  • The accusation of cheating occurred on the start of the practical exam day.
  • Scott Valencia decided to alter and manipulate the testing standards in an attempt to confuse Plaintiff. Plaintiff was feeling deep anxiety and anger toward Scott Valencia during the testing.
  • These circumstances constituted a clear violation of the testing performance policy.
  • On April 14, 2021, Plaintiff submitted a request for FMLA leave for the head injury and concussion he suffered during training earlier in the day. CCCFPD knew of Plaintiff’s
  • injuries and received a claim for them on April 19, 2021, and Plaintiff began his medical leave.
  • On April 21, 2021, Defendants CCCFPD, Goetsch, and Stark, as decision makers,
  • notified Plaintiff that he was being rejected for the Captain position, and was being demoted back to Fire Engineer.
  • As a direct result on CCCFPD’s pervasive and severe harassment and discrimination, Plaintiff has experienced PTSD and severe anxiety.
  • Plaintiff now remains under the close supervision and treatment of a mental health professional.

Here is a copy of the complaint:

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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