Albany Prevails in Discrimination Suit

The US District Court for the Northern District of New York has rejected the discrimination claims of an Albany fire captain who was denied a promotion to battalion chief due to an off-duty incident. Captain Jeremy Clawson claims the City of Albany rescinded a civil service promotion he earned in 2019, because of a disability and his race.

Captain Clawson’s suit alleged that he was suffering from hypothermia exacerbated by a diabetic condition while off-duty on February 1, 2019, resulting in a medical emergency. He claims the department attributed his behavior to alcohol intoxication, considered it to be conduct unbecoming, and thereafter denied him a tested promotion. Here is earlier coverage of the filing of the lawsuit with the original allegations.

Here are the court’s statement of the facts:

  • Plaintiff is a 51-year-old African American. Plaintiff has been and remains employed by the Albany Fire Department since October 22, 1992. In 2005, Plaintiff was promoted from a fire fighter position to the officer rank of lieutenant. In 2010, Plaintiff was promoted to captain.
  • On January 18, 2019, Plaintiff was offered a promotion to battalion chief. Both parties understood that a promotion was not effective until an individual was sworn into a new position.
  • Fire Department Policies include a “prohibition against conduct unbecoming” of a department member.
  • On January 31, 2019, at 10:00 p.m., Plaintiff, “while off duty,” went to more than one business, and drank multiple drinks over the course of three to four hours.
  • At approximately 5:00 a.m., the Albany Police Department received a call about “a person exposing himself” in a Dunkin Donuts.
  • According to Defendant, at 5:10 a.m. police arrived at the scene.
  • At this point Plaintiff was outside of the Dunkin Donuts, with his “pants pulled down” and wearing “boxer shorts.” Defendant states that Plaintiff was “covered in feces” when he was discovered.
  • Plaintiff argues that “the video does not show [he] was ‘covered’ in feces” and denies being “covered” in feces.
  • APD officers called emergency medical services.  An ambulance took Plaintiff to Albany Medical Center at approximately 5:45 a.m. on February 1, 2019. Plaintiff left the hospital at around 10:00 a.m.
  • Later that day, Battalion Chief Newton found out about Plaintiff’s incident from that morning. “Chief Gregory reviewed the CAD (computer aided dispatch) from the night before and called Deputy Chief Brian Hogan of APD and asked him to review the body camera footage from the night of the incident,” and following review, Hogan “reported to Chief Gregory that it was Plaintiff that was observed on the body camera footage.”
  • EMS and APD responders indicated that they believed Plaintiff had been drinking.
  • Additionally, “[o]n February 1, 2019, Chief Gregory called Corporation Counsel, Peachie Jones, and had a meeting with Mayor Sheehan to advise them that it was his recommendation that the Plaintiff’s offer of promotion be rescinded because of conduct unbecoming of a high-ranking position in AFD as a result of the incident at Dunkin Donuts earlier that morning.”
  • On February 3, 2019, Plaintiff was called to meet with AFD command staff, including Chief Gregory, Chief Toomey, Chief Wickham, and Chief Walker, and two union representatives.
  • Without Plaintiff’s knowledge, Police Lieutenant Anthony Battuello was in Chief Gregory’s office, adjacent to the meeting room, by request of Chief Gregory.
  • During the meeting, Plaintiff was allowed to speak about the situation, and was then told that his promotion offer was rescinded.
  • Chief Gregory also offered Plaintiff information about the Employee Assistance Program, which is “offered by the City of Albany to all employees for various reasons including financial assistance, psychological counseling, substance abuse issues or even if you just need someone to talk to.”
  • On February 3, 2019, as directed, Plaintiff submitted an intra-departmental correspondence explaining this situation and stated it “appeared” he drank too much alcohol and became intoxicated.
  • Chief Gregory claims the rescission of promotion was because the conduct was “unbecoming of a high-ranking member of the AFD,” in a “supervisory position where he would be a shift commander in charge of . . . more than 48 members of the department.”
  • Plaintiff remains a Captain at AFD and has not been demoted or received a change in compensation from the Captain terms he enjoyed prior to the incident underlying this complaint.

The court granted summary judgment in favor of the city on all counts. As explained in the decision (citations and quotation marks removed to facilitate reading):

  • The ADA prohibits discrimination against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
  • Plaintiff argues that Defendant rescinded his promotion because of perceived alcoholism.
  • Plaintiff claims that EAP, though offered to City employees for many reasons, was only offered to him because Defendant’s employees perceived him as an alcoholic. 
  • Rescinding a promotion based on one public night of intoxication does not require a finding that an employer was on notice of a disability or regarded someone as having a disability.
  • Alcoholics are not exempt from reasonable rules of conduct and that an employer need not tolerate an alcoholic’s misconduct.
  • Violations of departmental policies may be disciplined even if they were caused by the disability of alcoholism. Accordingly, Plaintiff fails to make a prima facie case of disability discrimination under the ADA. As such, Defendant’s motion for summary judgment as to the claim under the ADA is granted.
  • Title VII provides that it is ‘an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or natural origin.
  • Once the plaintiff presents a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its employment decision.
  • Upon the defendant’s articulation of a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to show that the employer’s explanation is a pretext for race discrimination.
  • Defendant proffers that Plaintiff’s promotion offer was rescinded because of the legitimate, non-discriminatory reason that Plaintiff “displayed conduct unbecoming of a high-ranking member of the AFD.
  • Defendant argues that battalion chiefs are responsible for coordinating, commanding and supervising fire suppression and emergency response measures, and Plaintiff’s demonstrated lack of professionalism and judgment rendered him unqualified to fulfill the essential functions of the position.
  • In support of this position, Defendant has submitted the bodycam footage from the responding APD officer on February 1, 2019.
  • Defendant has met its burden of demonstrating a legitimate, nondiscriminatory reason.
  • Once the employer has made a showing of a neutral reason for the complained of action, to defeat summary judgment . . . the employee’s admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the employer’s employment decision was more likely than not based in whole or in part on discrimination.
  • Plaintiff’s conclusory allegations are insufficient to rebut Defendant’s legitimate, non-discriminatory reason for the adverse employment action.
  • Plaintiff alleges that an inference of discrimination is evidenced by the fact that he was replaced by a Caucasian firefighter, Captain Kowalski.
  • However, after Plaintiff, Captain Kowalski was next in line for promotion to Battalion Chief based on the results of the Civil Service exam.
  • Although Plaintiff speculates that Chief Gregory rescinded his promotion for the purposes of promoting a Caucasian, the assertion is based solely on conjecture and it fails to account for the fact that Captain Kowalski did not engage in the same unprofessional conduct.
  • Moreover, Plaintiff does not contest Captain Kowalski’s qualifications.
  • After carefully reviewing the entire record in this matter, the parties’ submissions, and the applicable law, and for the above-stated reasons, the Court hereby ORDERS that Defendant’s motion for summary judgment is GRANTED.

Captain Clawson’s attorneys have already filed an appeal to the Second Circuit. Here is a copy of the district court ruling:

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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