Denver Fire Prevails in Discrimination Suit

A US Magistrate Judge has recommended that summary judgment be granted to the City of Denver in a lawsuit filed by a probationary firefighter who was terminated in 2019. Da Lesha Allen filed suit claiming her dismissal was due to race and gender discrimination.

The suit was filed by Allen and a second plaintiff, Charmaine Cassie, who was similarly terminated by the department. In handing down the ruling Magistrate Judge Michael E. Hegarty limited his ruling to Allen, allowing Cassie’s case to proceed.

Allen completed the fire academy in 2019, but was terminated shortly thereafter during her probationary period after a series of performance problems. She sought to block the city’s use of her fire academy performance, an argument the court refused to accept:

  • the mere fact that a recruit graduated from the Academy does not mean her pre-graduation Academy performance lends no insight to the termination decision.

The decision is an important one for at least two reasons. First, those concerned with knowing the level of detail required to overcome allegations of discrimination should invest the time to read the 37-page decision in its entirety. In 110 numbered paragraphs, the court details the documentation that the department had to rebut Allen’s allegations. I won’t reprint them here – there is just too much detail for a blog post – but the Denver Fire Department has done an excellent job of preparing its officer corps and instructors on how to handle the legal rigors that courts require in cases such as this. It is a textbook example of how to document an employee’s poor performance, using deficiency reports.

Second, the decision does a good job of explaining the three-step burden shifting process commonly referred to as the McDonnell-Douglas framework, that so often comes into play in discrimination cases. Quoting from the decision:

  • The first step in that process requires Plaintiff to make a prima facie showing of unlawful employment conduct.
  • To do so, Plaintiff must demonstrate how the circumstances of her termination permit the inference of discrimination, and there must be some logical connection between that inference and the elements of the cause of action.
  • Plaintiff meets her burden at the first McDonnell-Douglas step.
  • She is a member of protected groups (Black and/or female), and she experienced an adverse employment action (termination).
  • A presumption of discrimination therefore arises
  • That causes the burden to shift to Defendant to articulate a legitimate, non-discriminatory reason for terminating Plaintiff.
  • As it is for Plaintiff at the first step, the burden on Defendant at the second step is light.
  • The termination order (ECF 45-15) discusses at length the performance problems that culminated in the decision to fire her.
  • As it summarizes those reasons in its Reply, Defendant fired Plaintiff for not successfully attaching a hose to a fire hydrant to secure water at a reported residential fire; leaving the hydrant wrench on the hydrant when she departed the scene; and not informing the later arriving firefighters of her inability to connect the hose to secure it as a water source.
  • As a result, it was the later arriving firefighters who had to attach the hose to the fire hydrant before they could proceed with their responsibilities.
  • In other words, Defendant fired her for not being able to perform an essential task, not securing a tool, and not communicating the problem to others.
  • Even if her omissions resulted in no real harm, they are matters of obvious importance to the fire department’s public safety mission.
  • They are legitimate reasons to terminate a probationary firefighter’s employment.
  • Thus, the burden shifts back to Plaintiff to show that Defendant’s stated reason is actually pretext for unlawful discrimination.
  • Pretext is shown through “evidence of weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its termination decision.”
  • One way to show pretext is with evidence suggesting that Defendant’s reason is either a post hoc fabrication or otherwise played no actual motivating role sufficient to cause a reasonable jury to disbelieve Defendant.
  • That includes substantive inconsistencies in Defendant’s explanations.
  • Another potential indicator of pretext is if Defendant treated similarly situated employees who do not belong to the protected class differently (i.e., more favorably) despite an equivalent work rule violation.
  • An employer’s pattern of conduct toward a protected class may permit the inference of that employer’s discrimination against an individual class member.
  • Not relevant to the pretext inquiry is the wisdom, fairness, or correctness of the stated reason. Instead, the focus is on whether Defendant honestly believed it and acted in good faith on that belief.
  • In other words, the facts are considered from how they appeared to the person who made the termination decision at the time.
  • Plaintiff argues that her supervisors’ intent to discriminate against her can be inferred because they used “terms . . . associated with stereotypes of Black women.”
  • Plaintiff does not expressly say what terms are at issue and which supervisors said them.
  • From its own review of the record, the Court sees no use of discriminatory terminology in her performance reviews, confirming memoranda, or formal disciplinary reports.
  • Plaintiff accuses most every Academy instructor and probationary supervisor she encountered as well as the officers above them of racism and sexism that negatively affected all aspects of her experience with DFD.
  • In support thereof, she relies on comments that she or others heard DFD instructors, supervisors, and command staff say either to her or about her.
  • Because many of those comments are hearsay, she must show how they can enter the record as admissible evidence. She does not undertake this additional step.
  • There is no evidence of any potentially discriminatory comment was uttered by … those who were directly involved in the termination decision.
  • That renders irrelevant any potential comments by the others.
  • Many instructors, supervisors, and command staff officers found Plaintiff’s performance to be lacking in a variety of ways. Those deficiencies continued despite repeat consultations and offers of assistance and encouragement.
  • Then there was a performance-related problem that occurred during a call to a reported structure fire. That incident was subject of deeper inquiry.
  • The decision whether to terminate Plaintiff’s employment was made by those much higher in the command structure, removed from her field supervisors.
  • Based on the investigation of that incident in particular and her performance history overall, she was terminated.
  • Plaintiff does not demonstrate how a jury could find the real motivator to be her race and gender.
  • That may be her subjective perception of what happened, but no matter how earnestly held, that alone is insufficient to survive summary judgment.

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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