Denver Prevails Again on Discrimination Claim

A probationary firefighter who was injured in each of three fire academies, and found to be medically unable to return to duty to complete her probationary period, has lost her race, gender, and disability discrimination lawsuit against the Denver Fire Department.

Charmaine Cassie filed suit in 2020 contending that she was discriminated against after a shoulder injury caused her to wash out of Academy 2018-02 after 14 weeks, and denied the opportunity to attend a lateral hire academy. She also claimed she was subjected to a hostile work environment and retaliated against for complaining about discrimination.

Cassie’s suit was originally filed with another complainant, DaLesha Allen, who alleged race and gender discrimination after being dismissed during her probationary period. Allen’s complaint met a similar fate as Cassie’s, in a ruling handed down in September, 2022. At the time the suit was filed, Cassie was still employed by the Denver Fire Department.

After injuring her shoulder in Academy 2018-02, Cassie was placed on modified duty and rescheduled to attend Academy 2019-01 that began in January, 2019. She again reinjured her shoulder in February, 2019 and was deferred to a future academy. The next academy, 2019-02, was an abbreviated lateral hire academy. Because Cassie completed 14 of the 18 weeks of Academy 2018-02, she requested permission to attend Academy 2019-02. This request was denied because she did not have the prerequisite training.

Cassie subsequently was admitted to the next full 18-week fire academy, 2019-03, but injured her knee. She also became pregnant. Despite her injury and pregnancy, she graduated from Academy 2019-03, but had to be placed on alternative duty while her knee recuperated. While on alternative duty, Cassie took pregnancy leave under the FMLA. She then needed additional leave due to a non-line of duty (NLOD) back injury. She requested and received extended modified duty and leave as a reasonable accommodation under the Americans with Disabilities Act.

On October 13, 2021 after being unable to return to full duty since 2019, Cassie was dismissed from the Denver Fire Department. She amended her previously filed suit to allege discrimination and retaliation related to her dismissal and the failure to accommodate. Quoting from the district court decision that granted summary judgment to the city:

  • Plaintiff contends that Defendant delayed her graduation from the fire Academy because she is Black and/or a woman.
  • She expresses her disparate treatment claim through three different statutory causes of action: 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. § 2000e-5 (Title VII).
  • The elements that define unlawful discrimination are the same for all three.
  • The first element is membership in a protected class, which Plaintiff meets on the basis of both race and gender.
  • Plaintiff also raises an “intersectionality” argument that Defendant discriminated against her because she is a Black woman.
  • The remaining elements are: (2) an adverse employment action, (3) qualification for the position and satisfactory job performance, and (4) less favorable treatment than others not in the protected class.
  • It is intentional, discriminatory animus that is unlawful under those statutes.
  • “Plaintiff has the ultimate burden of proving, either directly or indirectly, that defendant intentionally discriminated against [her].”
  • In other words, Plaintiff must show how it was the protected trait(s) that motivated Defendant’s adverse employment action or had a determinative influence on that decision.
  • The record contains no direct evidence of discrimination by the relevant decisionmakers in the form of express statements of bias by them in connection to Plaintiff’s deferred attendance at the Academy (or even generally).
  • Plaintiff relies upon… circumstantial evidence pursuant the three-step burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
  • The McDonnell-Douglas framework provides the means by which intentional discrimination can be inferred from the evidence.
  • 1. Prima Facie Showing
  • 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.
  • [T]he Court finds that 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. A presumption of discrimination therefore arises.
  • 2. Legitimate Non-Discriminatory Reason(s)
  • The burden on Defendant at the second step is light.  Defendant has met its burden of showing a legitimate non-discriminatory reason for not allowing her to attend Academy 19-02 and requiring her to complete Academy 19-03. Defendant is not required to explain any differences between Plaintiff and similarly situated others.
  • The record evidence supports Defendant’s articulated reason, i.e. she did not meet the clear qualifications of the lateral Academy 19-02, as dictated by the City Charter and the Civil Service Rules. After Plaintiff reinjured her shoulder on February 12, 2019, she was not medically cleared to continue Academy 19-01, and she was granted medical deferment to the next Academy, 19-03, starting September 16, 2019. The Academy dated June 24, 2019 to August 8, 2019 (for lateral firefighters, Academy 19-02) required recruits to have had three years of full-time firefighting experience, which necessarily would include other certifications. There is no dispute that Plaintiff lacked this requisite experience. She attended Academy 19-03, during which time she was again injured. She eventually graduated from that Academy and was required to complete the probationary period of at least nine months, mandated by the City Charter and Civil Service Commission rules. Her NLOD injury prevented her from fulfilling the firehouse rotation requirements. The documented work restrictions prevented her from returning to the active suppression program, and firefighters with NLOD injuries are not entitled to modified duty.
  • Plaintiff participated in the job reassignment process and did not express interest in any of the twenty-nine positions offered. She was given notice on September 17, 2021 that Defendant may disqualify her.
  • After reviewing the essential functions of a probationary firefighter, and the work restrictions dated October 14, 2020 (extended to December 2021), Chief Deputy Executive Director of Safety Dulacki determined that her work restrictions would not allow for a minimum standard of physical strength or stamina under the NFPA Standard 1582 or 1001 for safe work as a probationary firefighter.
  • Defendant disqualified her for not being able to perform essential tasks of the position.
  • This is a 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.
  • 3. Pretext
  • Pretext is shown through “evidence of weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its termination decision.”
  • To defeat summary judgment, Plaintiff must show a genuine dispute of material fact over whether Defendant’s explanation is pretextual
  • Doing so entails more than just disbelieving Defendant; there must be sufficient evidence from which the factfinder could conclude that discrimination was a determinative factor in Defendant’s adverse employment decision.
  • An invidious discriminatory purpose may be inferred from totality of the relevant facts, taking the evidence into consideration on the whole.
  • Plaintiff argues that her supervisors’ intent to discriminate against her can be inferred because they used “terms . . . associated with stereotypes of Black women” and states “the numerous discriminatory comments directed to [Plaintiff] and the other witnesses discussed above, along with the other evidence of the Department’s issues with racism and sexism, show the culture of the Denver Fire Department.”
  • From its own review of the record, the Court sees no use of discriminatory terminology by any supervisor who was consulted regarding the decision to medically disqualify her.
  • Plaintiff posits that similarly situated employees were treated differently, which in her view, raises an inference of discrimination. Yet there is scant record evidence to support this argument. Without a similarly situated comparator, Plaintiff cannot show how Defendant treated her more harshly.
  • Defendant has shown there is no genuine dispute that other firefighters have been offered and exercised continuous leave as an accommodation between 2015 and 2022, and this list includes blacks, Hispanics, and females.
  • Plaintiff next alleges that Defendant discriminated against her on the basis of her disability when it disqualified her.
  • Plaintiff must prove that the Defendant acted with a discriminatory animus against her because she had a disability.
  • The determination of whether the requested accommodation is reasonable is specific to each case, and a court must consider the nature of the employee’s disability and the requirements of the job.
  • Paid or unpaid leave for a reasonable period of time may qualify as reasonable accommodation.
  • Here, the expected duration of plaintiff’s impairments was indeterminate.
  • Plaintiff’s accommodation request for seven months and twenty-nine days (or 243 days) of continuous unpaid leave is undisputed.
  • This is not a plausible reasonable accommodation.
  • An employer does not have to retain a disabled employee on unpaid leave indefinitely or for excessive time.
  • Therefore, any request for such a lengthy accommodation was unreasonable.
  • Plaintiff has not presented evidence that she was “otherwise qualified” at the time of the alleged discriminatory activity.
  • Accordingly, the Defendant’s motion for summary judgment is granted as to the ADA claim.
  • [In summary], Plaintiff alleges that Defendant’s termination of her employment was unlawful, an allegation which she expresses through several different causes of action.
  • The element common to those causes of action is the need for a causal relationship between her termination and a discriminatory motive.
  • The parties submit an extensive record, and after going through it, the Court sees insufficient evidence from which a reasonable jury could find that Defendant terminated her because she is Black and/or female or disabled.
  • Accordingly, the Court grants Defendant’s Motion for Summary Judgment as to all claims that Plaintiff raises in the Complaint.

Here is a copy of the decision and judgment:

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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