Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—N.D. Ala.: Firefighter, passed over for promotion, partially advances claims, (Jan 27, 2025)

By Todd Harrison, J.D.

He had more experience than the two firefighters who were chosen for the promotion, and the chief failed to provide the scores the two had achieved on his evaluation matrix.

A firefighter for municipal fire department was able to move forward with his Title VII race discrimination claim, ruled a federal district court in Alabama. The firefighter, a Black man, had been passed over the position of battalion chief, with two open positions ultimately being awarded to two white men who had fewer years of experience than he possessed. The chief who made the promotion decision had changed the process and contended that he primarily relied on the scores each applicant had achieved on his self-created evaluation matrix, although in this instance he failed to provide the scores of the white applicants who were awarded the job. However, the firefighter’s claims for retaliation did not survive the motion for summary judgment (Webb v. City of Homewood Alabama, No. 2:23-cv-1098-RDP (N.D. Ala. Jan. 24, 2025)).

The now-retired firefighter who brought this case is a Black man who served with the Homewood Fire Department for 36 years. In 2018, he was promoted to the position of captain, a rank that did not exist until 2017. In the department’s hierarchy, the rank of captain was one position below that of battalion chief.

Battalion chief. In September and October 2020, two battalion chief positions became available. Currently, four battalion chiefs are employed by the fire department. In the last 20 years, two Black individuals, including the firefighter, had applied for the position of battalion chief.

Selection process. Up until this point, battalion chiefs were selected by a panel of individuals who interviewed the candidates and evaluated their mission statements. However, when the current fire chief took over in 2020, he decided to do away with this method, instead opting to interview the candidates himself, review their resumes, and creating a matrix where the candidates’ qualifications were assigned a number value. The chief stated that he primarily considered the candidates’ matrix scores while secondarily considering their resumes.

One candidate selected for one of the open positions was a white male who had a lower rank than the employee and who had been with the department for 12 or 13 years, as opposed to the employee’s 35 years. A second white male filled the other opening. He too had a lower rank than the employee, although he had been employed by the fire department for longer than the other candidate.

Scoring matrix. A fire department document showed the matrix scores of the battalion chief candidates. However, it did not contain the scores for the two candidates who were ultimately chosen. The chief stated that he believed one of the candidates had scored close to 29. The document showed that the firefighter had the lowest score of the group with an 18.

Annual job task. Sometime in or around 1996, the fire department implemented an annual physical exam requirement. In 2020, the new chief decided that an additional physical fitness test was necessary, which he referred to as the “annual job task.”

COVID-19 diagnosis. In early 2021, the employee was diagnosed with COVID-19, and that February was admitted to the hospital with breathing difficulties. After being cleared to return to work, he did so the last week of February. He, along with the rest of the department, was told the annual job task would take place from April 26 through May 1 of that year.

Annual physical. Prior to the commencement of the annual job task, the department conducted annual medical physicals. The doctor who performed the physical exam wanted to ensure that the employee’s lungs were functioning properly after his COVID diagnosis.

EEOC charge. Shortly after his physical exam, the employee filed an EEOC charge on March 28, 2021, alleging racial discrimination with regard to the department’s hiring and promotion practices. Sometime on April 6, the chief was informed of the EEOC charge. That afternoon, he sent an email to all firefighters outlining his goal of a 100 percent success rate on the annual job task. The email went on to state that if a firefighter failed the job task, they would be reassigned off a truck for 90 days, take training, and attempt the test again.

Doctor’s letter. Around April 21 or 22, the chief received a letter from the doctor who had conducted the annual physical exam expressing his belief that the employee should be further evaluated before taking part in any physical testing. The chief then met with the employee, informing him he would be placed on limited duty until he could get a better release from the doctor and pass the annual job task.

Sometime thereafter, the employee retired, and subsequently filed this action alleging Title VII racial discrimination against the fire department, and retaliation in violation of Sections 1981 and 1983 against the chief.

Mixed-motive. Addressing the employee’s racial discrimination claim, the court determined that he was relying on a mixed-motive theory to meet his burden. According to the court, the employee satisfied the first prong because denial of a promotion is an adverse employment action.

As to the second prong, the employee relied on the convincing-mosaic theory, pointing to several pieces of circumstantial evidence to support the inference that race was a motivating factor in the decision not to promote him to battalion chief, including the department’s poor track record in hiring and promoting Black firefighters, the notable gaps in experience between himself and the candidates who were promoted, and the internal matrix system the chief allegedly relied on when making his promotion decisions.

Missing scores. According to the fire department, the employee was passed over for promotion based on his low matrix score. However, the scores submitted into evidence did not include the scores for the two firefighters who were ultimately chosen for the position, observed the court. Thus, there was no way to compare the employee’s score to the scores of the two who were promoted.

Based on this circumstantial evidence the court found that a reasonable jury could infer that the fire department’s reasons for not promoting the employee were pretextual. Accordingly, the fire department’s motion for summary judgment against the Title VII racial discrimination claim was denied.

Retaliation claims. Next, the court considered the employee’s Section 1981 and 1983 retaliation claims against the chief as they related to his removal from active duty in April 2021. It was unclear whether the employee was attempting to proceed based on the McDonnell Douglas framework or a convincing mosaic approach. Thus, the court considered the claims under both theories.

McDonnell Douglas. First analyzing the retaliation claims under the McDonnell Douglas framework, the court found the employee’s reassignment to a limited duty position constituted an adverse employment action. As to the causal relationship between the protected activity—the filing of the EEOC complaint—and the adverse employment action, the court determined that the one month gap could establish a causal relationship. However, the doctor’s letter to the chief that he received around April 22 served as an intervening act, explained the court.

After receiving the letter outlining the doctor’s concerns, the chief placed the employee on limited duty based on these concerns, said the court. Because the letter was an intervening act that severed the causal link between the employee’s EEOC charge and his reassignment, the employee failed to establish a prima facie case of retaliation.

No pretext. In an effort to show that the reason given for his reassignment was pretextual, the employee contended that the chief’s April 6 email to the fire department concerning the annual job task was suspicious in its timing as he had received the EEOC charge that same day. The court was not convinced.

As an initial matter, the court could not conclude that the email was sent after the chief had received notice of the EEOC charge. Even if it were to make such an assumption, it would still not establish pretext as the employee was reassigned based on the doctor’s letter. As such, the employee failed to point to any evidence that the decision was pretextual.

Convincing mosaic. Applying the convincing mosaic theory to the employee’s retaliation claims, the court determined that he came up short on this approach as well. The employee again argued that the “suspicious timing” of the chief’s email demonstrated pretext, which the court again found to be without merit.

Although the court noted that it was true that no other firefighter had been precluded from taking the annual job task, it was also undisputed that the chief did not receive a similar letter from a doctor regarding any other firefighter. Accordingly, summary judgment was granted against the retaliation claims.

The case is No. 2:23-cv-1098-RDP.

Judge: Proctor, R.

Attorneys: Artur Davis (HKM Employment Attorneys) for Demetrius Webb. Wayne Morse, Jr. (Waldrep, Stewart & Kendrick) for City of Homewood Alabama.

Companies: City of Homewood Alabama

Cases: Discrimination RaceDiscrimination PublicEmployees Retaliation Covid19 AlabamaNews