LA County Sued by Lifeguard Captain Over Progress Pride Flag

A Lifeguard Captain with the Los Angeles County Fire Department has filed suit claiming that the county’s policy requiring him to raise the Progress Pride Flag constitutes religious discrimination, violates the First Amendment’s free speech requirement, and violates California state law. Captain Jeffrey Little filed suit last week in US District Court for the Central District of California naming the county and three chief officers in the lifeguard division.

Captain Little alleges that the county initially granted him an accommodation from compliance with a memorandum titled EA-231, but abruptly rescinded it, placed him under investigation, and concluded he violated the county’s Policy of equity. Quoting from the complaint:

  • By its terms, EA-231 requires Lifeguard Captains and other Site Supervisors, including Captain Little, to ensure that the Progress Pride Flag is appropriately flown (i.e., appropriately handled, raised, lowered, and stored, etc.) every June at all of the Department’s lifeguard facilities in the County with flag poles and sufficient clasps for mounting the flag.
  • As acknowledged in the Board of Supervisors’ motion, the Progress Pride Flag symbolizes and advances a range of disputed viewpoints, both religious and moral, regarding the family, the nature of marriage and human sexuality, the promotion of certain sexual practices, and the identity, nature, and purpose of the human person. Additionally, particular aspects of the Progress Pride Flag were originally intended by its creators, and echoed by the Board in its motion, to signify “sex,” “magic,” and “spirit”, among other ideological and spiritual notions.
  • The views commonly associated with the Progress Pride Flag on marriage, sex, and family are in direct conflict with Captain Little’s bona fide and sincerely held religious beliefs on the same subjects. His bona fide and sincerely held religious beliefs require him to reject those views.
  • On June 18, 2023, Captain Little requested a religious accommodation and requested “to be exempt [from] adhering to EA-231.”
  • Later that day, he had an interactive process meeting (IPM) with Ms. Renée Nuanes-Delgadillo of the Fire Department’s Risk Management and Disability Management and Compliance, Leadership and Professional Standards Bureau, in which he explained that his religious beliefs did not allow him to raise the Progress Pride Flag or ensure that it is raised and properly flown.
  • On June 19, 2023, the Fire Department initially agreed to Captain Little’s request by promising: (1) movement to a site not flying the Progress Pride Flag; (2) no requirement to raise the Progress Pride Flag; and (3) no requirement to ensure raising of the Progress Pride Flag. As a result, Plaintiff Captain Little believed he would be able to work in the Dockweiler Area, North and South, and El Segundo Lifeguard stations without either violating his religious beliefs or running afoul of EA-231, as there were then no flagpoles subject to the terms of EA-231.
  • The grant of an accommodation made perfect sense as it required no substantial increase of expenditures and the Fire Department has many employees it already pays who could substitute for any Progress Pride Flag-related duties in June. It would be simple to make basic rearrangements of shifts and schedules.
  • However, on June 21, 2023, before Captain Little’s shift, Section Chief Arthur Lester visited the Dockweiler Area, modified the flagpoles to attempt to bring them within the ambit of EA-231, and then ordered the lifeguards at each subarea to raise Progress Pride Flags.
  • At 10:30 a.m. on June 21, 2023, Captain Little arrived at work. With the permission of the Ocean Lifeguard Specialists then stationed at Dockweiler, he took down the flags due to the prior grant of accommodation and the inconsistency with EA-231. That was between 11:30 a.m. and 2:30 p.m. Later that day, at about 2:45 p.m., the Department informed Captain Little by Microsoft Teams that his religious accommodation had been revoked.
  • On June 21, 2023, after revocation of the accommodation, Section Chief Lester directly ordered Captain Little to raise the Progress Pride Flag that he had lowered. In his words, demeanor, and tone, Section Chief Lester’s conduct toward Captain Little in the circumstance was abusive, inappropriate, harassing, and discriminatory. Further, Section Chief Lester’s conduct was motivated by animus toward Captain Little’s religious beliefs. He acted this way toward Captain Little because of Captain Little’s religious beliefs and in retaliation for Captain Little seeking a religious accommodation.
  • Thus, on June 21, 2023, without justification or notice, the Department abruptly ended the interactive process and refused Captain Little any accommodation, less than two days after granting an accommodation. This was a violation of Title VII and FEHA. The Department could easily grant Captain Little a religious accommodation to EA-231 without undue burden to itself because other Captains or Site Supervisors who do not have any religious objection could have complied with EA-231 on his behalf.
  • On June 22, 2023, Lifeguard Division Chief Fernando Boiteux issued a Direct Order to Captain Little to fly the Progress Pride Flag and ensure that the Progress Pride Flag is flown as instructed in EA-231, which is attached as Exhibit E. The written Direct Order was hand-delivered by Lifeguard Chief Boiteux to Captain Little. When doing so, he told Captain Little that “You need to stop what you are doing,” “You are an LA County employee; that’s the only thing that matters,” and “Your religious beliefs do not matter; you are an LA County employee.” He repeated multiple times, “You are an LA County employee” and “Your religious beliefs do not matter” in an instance of religious discrimination combined with physical intimidation.
  • Lifeguard Chief Boiteux is 6’4” tall and weighs 220 pounds. Captain Little is aware that Chief Boiteux is also trained in martial arts. He delivered his message to Captain Little in a violent and angry manner while standing over Captain Little—who is only 5’9” tall and weighs 150 pounds. Captain Little believes that the specific intent of Chief Boiteux’s demeanor was to be physically intimidating.

Captain Little then filed a complaint with the fire department for religious discrimination and retaliation.  He claims that supervisors breached his right to employment-related privacy by leaking details of his religious accommodation request, resulting in harassment, death threats, threats of harm to his children, and additional complaints he characterizes as “pretextual and retaliatory.”

The suit alleges nine counts:

  1. Religious Creed Discrimination / Failure to Accommodate in Violation of Title VII of the Civil Rights Act of 1964
  2. Religious Creed Discrimination / Failure to Accommodate in Violation of FEHA
  3. Retaliation in Violation of Title VII of the Civil Rights Act of 1964
  4. Retaliation in Violation of FEHA
  5. Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA
  6. Violation of Free Exercise Clause of First Amendment to U.S. Constitution: Not Generally Applicable due to Comparable, Categorical Exemptions
  7. Violation of Free Exercise Clause of First Article of California Constitution
  8. Violation of Free Exercise Clause of First Amendment to U.S. Constitution: Not Neutral Due to Animus and Hostility Against Religion
  9. Violation of Free Speech Clause of First Amendment to U.S. Constitution: Compelled Speech & Viewpoint Discrimination

The complaint seeks damages and injunctive relief. Here is a copy of the complaint:

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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