Court Dismisses Wichita Captain’s Federal Claims

A Wichita fire captain who sued the city alleging race discrimination and retaliation, has had his federal claims dismissed. Captain Mark Jordan will now have to decide whether to proceed in state court on two state law counts.

Captain Jordan filed suit last year in Sedgwick County District Court alleging violations of Title VII for race discrimination and retaliation; civil right violations under 42 U.S.C. § 1981 and § 1983; state law identity theft; and a violation of Kansas’s Wayne Owen Act against the City.

Due to the federal claims, the city removed the case to US District Court for the District of Kansas. On September 8, 2023, Judge Daniel D. Crabtree ruled that Captain Jordan’s federal allegations came up short. The central issues in the case involve Captain Jordan’s command at a strip mall fire in August, 2019, and the fire chief’s decision thereafter to direct his annual performance review be adjusted to reflect problems with his command.

Quoting from the complaint:

  • Wichita Fire Department policy provides that the second unit to arrive at a fire should take command.
  • But, in August 2019, when plaintiff-WFD Captain Mark Jordan-arrived with the seventh unit at a fire on south Seneca Street, no one had taken command. Plaintiff took command of the fire, which was, to use plaintiff’s words “a shit show.”
  • Plaintiff admits that he struggled in such a difficult situation.
  • WFD Chief Elizabeth Snow testified that plaintiff nonetheless performed adequately and WFD Administration doesn’t blame plaintiff for the problems at the Seneca Street Fire.
  • Later, when plaintiff’s performance evaluation reached Chief Snow, she asked her staff to revise the evaluation and include a note about the Seneca Street Fire.
  • After [two acting battalion chiefs] refused to revise plaintiff’s evaluation, [Deputy Chief] Pavelski delegated the task of revising plaintiff’s evaluation to Division Chief Darrel Kohls.
  • Defendant Darrell Kohls added four sentences to plaintiff’s review and lowered one portion of his score, but plaintiff’s overall performance ranking didn’t change.
  • Kohls told plaintiff about the planned revisions.
  • Plaintiff disagreed with them, and never signed his revised performance evaluation.
  • Plaintiff now brings this lawsuit, asserting that defendant City of Wichita discriminated against him based on his race and retaliated against him for reporting race discrimination.
  • Plaintiff also asserts a tort claim for misappropriation of identity against the City and Kohls.
  • And plaintiff brings a claim under Kansas’s Wayne Owen Act against the City.
  • Ultimately, plaintiff did not receive any discipline for his work at the Seneca Street Fire.
  • Plaintiff is still a Captain in the WFD.
  • Plaintiff’s salary has “topped out,” which means that he earns the highest wage possible for his rank.
  • Though firefighters might “top out” their salaries, evaluations can still play a role in their employment.
  • Plaintiff brings his race discrimination claims against the City under Title VII and § 1981.
  • At the first step in the McDonnell Douglas framework, plaintiff “must carry the initial burden . . . of establishing a prima facie case of racial discrimination.
  • If plaintiff carries his burden, the “burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for the employment action.
  • If the employer defendants carry this burden, “plaintiff must then show that the defendant[s’] justification is pretextual.”
  • The court assumes, without deciding, that plaintiff could establish a prima facie case of discrimination; and the court concludes that defendants have established a legitimate, non-discriminatory reason for revising plaintiff’s performance evaluation.
  • When analyzing the pretext question, the court doesn’t “ask whether the employer’s reasons were wise, fair or correct[.]”
  • Instead, the court asks “whether the employer honestly believed its reasons and acted in good faith upon them.”
  • So, the court considers “the facts as they appeared to the person making the decision,” and the court can’t “second-guess the employer’s decision even if it seems in hindsight that the action taken constituted poor business judgment.”
  • “‘The reason for this rule is plain: [the court’s] role is to prevent intentional discriminatory . . . practices, not to act as a “super personnel department,” second guessing employers’ honestly held (even if erroneous) business judgments.'”
  • Plaintiff argues that the means the City used to alter his performance evaluation show that material issues of fact remain about plaintiff’s race discrimination claim.
  • [Plaintiff’s] evidence fails to create a triable issue of pretext.
  • Plaintiff’s complaints about the City’s means of revising his performance evaluation don’t undermine the City’s reason for the revision.
  • Though plaintiff has much to say about Pavelski and Kohls, he has failed to adduce evidence that controverts Chief Snow’s initial judgment that plaintiff’s evaluation should mention the Seneca Street Fire. Chief Snow testified that plaintiff “performed adequately” at the Seneca Street Fire.
  • Chief Snow also testified that there were “areas in which [plaintiff] needed to improve.”
  • Plaintiff himself testified that he struggled at the scene, and that there were ways to improve WFD’s response to the fire.
  • Here’s the language that Kohls added to plaintiff’s performance evaluation: “During this rating period, [plaintiff] struggled as incident commander at a 2-alarm strip mall fire. This has been identified as a deficit. Since this occurrence, [plaintiff] has attended ICS training with Chief Wilson and Chief Ross. His performance at this training was acceptable.”
  • Though Pavelski and Kohls might have found a fairer way to address the situation-or, at least, one that plaintiff would deem fairer-no reasonable factfinder could find that their methods qualify as the “disturbing procedural irregularity sufficient to prove pretext.”
  • Plaintiff [also] asserts that defendants modified his performance evaluation as retaliation for complaining about retaliation discrimination.
  • Unless the employer’s adverse action “is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.”
  • Here, plaintiff complained of race discrimination on March 2, 2020.
  • Chief Snow returned plaintiff’s review to Pavelski on August 11, 2020, and plaintiff learned of Kohls’s plan to revise his performance evaluation on September 2, 2020.
  • Kohls made the final revisions to plaintiff’s evaluation after the September 2020 meeting.
  • The five to six months between these two actions-March 2020 to August/September 2020-is insufficient for the court to presume causation.
  • In sum, no reasonable factfinder could conclude that the City retaliated against plaintiff in September 2020 by revising his performance evaluation based on his March 2020 complaint about race discrimination.
  • For the reasons stated in this Memorandum and Order, the court grants defendants’ Motion for Summary Judgment against plaintiff’s race discrimination and retaliation claims under Title VII and § 1981.
  • The court dismisses plaintiff’s state law claims without prejudice.

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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