Former Fire Chief Can Proceed with Race-Bias Claim

By Joanne Deschenaux June 11, 2021
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A Black former fire chief of Ontario, Calif., who was fired after working for the city for 30 years can go forward with his claim of racial discrimination, a California appeals court ruled. The plaintiff showed that a city council member berated him but not white employees and used racial slurs when referring to him.

Additionally, the plaintiff was the only Black employee during his 30-year tenure with the fire department. Thus, the court found that the plaintiff produced enough evidence of discriminatory intent to allow the claim to proceed.

Background

In 1986, the city hired the plaintiff as a fire investigator. He rose through the ranks and became fire chief in 2011.

The plaintiff claimed that one city council member always treated him differently from other employees. He said the council member would yell at him, berate him and curse at him. On one occasion in March 2016, when the council member was talking to another city council member and the city manager, he allegedly referred to the plaintiff as an N-word, a "coon" and a "token Black." The city manager allegedly told the council member, "I will take care of this. I have a plan."

In June 2016, the city manager fired the plaintiff, stating that he had lost confidence in the plaintiff's judgment and abilities.

Throughout his employment from 1986 to 2016, the plaintiff was the only Black employee in the fire department. Some Black applicants passed the written and physical tests, but none passed the required oral interview. The plaintiff believed that the interview was a smokescreen for racial discrimination. He repeatedly tried to talk to the city manager about increasing diversity in the department, but the city manager took no action.

The plaintiff filed a lawsuit alleging, among other claims, that he was fired because he is Black. The trial court dismissed the discrimination claim before trial, and the plaintiff appealed.

Discrimination Under FEHA

The California Fair Employment and Housing Act (FEHA) prohibits discrimination in employment based on race.

To proceed with a FEHA discrimination claim, a plaintiff need only show the following:

  • He or she is a member of a protected class.
  • He or she was qualified for the position sought.
  • He or she suffered an adverse employment action.

There were circumstances suggesting that the employer acted with a discriminatory motive.

Plaintiffs in FEHA cases can prove their case by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence, the court explained.

Racially bigoted statements may be evidence of discriminatory intent, the court said.

The city claimed that the council member's statements were irrelevant because he was not a direct and important participant in the decision-making process. The council member could take official action only as one member of a majority of the board, and he had no official control over the city manager's hiring and firing decisions.

Nevertheless, the court said, an individual city council member has substantial unofficial influence over such decisions. And in this case, after the council member made the discriminatory remarks, the court noted, the city manager said, "I will take care of this. I have a plan."

Discriminatory remarks by a non-decision-making employee can influence a decision-maker, the court said. If the official decision-maker acted as the conduit of another employee's prejudice—known as the "cat's paw"—the innocence of the decision-maker would not prevent the company from being found liable. Therefore, discriminatory comments by someone in a position to influence a decision-maker are relevant, the court noted.

Further, while a slur alone does not prove discrimination, it may show discriminatory intent when combined with other evidence. And the term "token Black" is more than just a slur, the court said. It shows that in the mind of at least one city council member, the city could get away with discriminating against other Black job applicants because it hired the plaintiff.

The plaintiff also alleged that the city council member yelled and cursed at him and verbally berated him every time they met. The plaintiff never saw this behavior directed at any other person.

Additionally, the plaintiff claimed he was treated less favorably than similarly situated white employees with respect to job assignments, promotions and compensation. This disparate treatment supported an inference of discriminatory intent, the court said.

Finally, the court noted, the plaintiff alleged that he was the last Black applicant hired by the department. In other words, for at least 30 years, from 1986 through 2016, it did not hire a single Black employee in any position.

The city argued that for a plaintiff to be able to proceed with a claim of disparate treatment based solely on statistical evidence, the plaintiff must produce statistics showing a clear pattern, unexplainable on grounds other than race. The court noted that a 30-year failure to hire any Black employees is arguably such a pattern, but the court did not make its decision on that point alone; the statistical evidence was accompanied by additional allegations showing discriminatory intent.

The appeals court reversed the trial court decision dismissing the racial-bias claim and held that the plaintiff could take his claim to trial.

Clark v. City of Ontario, Calif. Ct. App., No. E073663 (May 17, 2021).

Professional Pointer: Under the cat's paw theory of discrimination, referenced by the court in this case, an employer can be liable for employment discrimination if a decision was influenced by someone else's discriminatory acts or intent, even if the person who made the adverse employment decision was unbiased.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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