A New Orleans captain who alleges numerous instances of race discrimination, conspiracy, and due process violations will be allow to proceed on two of his race discrimination claims, but the remainder of his case has been dismissed. Captain Varrick Dyer filed suit earlier this year in US District Court for the Eastern District of Louisiana.
The court’s recitation of the facts are interesting and are provided here in depth so the legal decisions are understandable:
- Dyer [identified as a dark-skinned African American man and 20 year veteran of NOFD] filed suit … alleging claims for retaliation under Title VII, hostile work environment based on race and color under Title VII, disparate treatment based on race under Title VII, the foregoing claims under and the Louisiana Employment Discrimination Law, conspiracy to violate human rights under La. Rev. Stat. § 51:2256, conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3), racial discrimination under 42 U.S.C. § 1981, and deprivation of a vested property right under 42 U.S.C. § 1983.
- He alleges that Captain Armand Favalora, a white male, began harassing Dyer to participate in a boycott of overtime work at the NOFD in early 2020.
- Dyer continued accepting overtime work, and he alleges that Favalora and other firefighters harassed him “for his refusal to participate in the boycott.”
- He alleges two specific incidents occurring in February 2020 involving Favolora swearing at Dyer and Favolora cutting the power to a treadmill Dyer was running on, causing Dyer to fall and injure his knee.
- Dyer alleges that he reported “the harassment and assault to Superintendent McConnel on February 22, 2020.”
- Favalora left the NOFD a year later, but Dyer alleges that he continued to suffer from harassment and a hostile work environment.
- He describes an incident on February 20, 2022, when his engine was the fourth to respond to a fire and there was no active fire when they arrived.
- He alleges that two white firefighters he was supervising left the truck, entered the building, and then returned to the truck.
- When they returned, he explained it was inappropriate to leave the engine without the captain’s instruction.
- As Dyer was leaving the scene, he received a call on the radio that he needed to return to the command post.
- When he arrived there, Captain Martin drove by and yelled “next time get off the pump.”
- When Dyer reported to Chief Lavaca he learned that Chief Lavaca had not called him on the radio to return to the command post.
- Dyer realized that Captain Martin had made a false call.
- Dyer then contacted Martin to determine where they were going—he said they were headed to 502 quarters.
- Martin called Deputy Chief Castle and claimed he was fearful of Dyer, who was coming to meet him and discuss the false call, although Martin did not mention he made a false call.
- Instead, he complained that Dyer did not get off the truck or get dressed when he arrived at the fire earlier that day.
- Castle did not instruct Dyer not to report to 502 quarters.
- Instead, he called the District Chief and stated he thought there was going to be a fight between Martin and Dyer.
- Dyer alleges on “information and belief” that Castle and Martin conspired to set up Dyer in a volatile situation in hopes he would turn violent and Dyer would be terminated.
- When Dyer arrived at 502 quarters, he found a group of firefighters waiting for him.
- He approached Martin and told him if he had something to say, to say it to his face.
- Dyer complains that several firefighters conferred when drafting special reports about the incident, even some who were not instructed to do so.
- For his role in the February 20, 2022, incidents, Martin was eventually charged with … engaging in hazing, horseplay, or pranks that interfere with another member’s work performance or job satisfaction and from creating an intimidating, humiliating, or hostile work environment. [Martin] was issued the minimum discipline of a letter of reprimand.
- It was determined that Dyer’s actions violated Rule 25 for threats or acts of violence against the public or other members related to the February 20, 2022, incidents. Violation of this rule requires either suspension or termination of employment.
- When Dyer appeared before the disciplinary review board in November 2022, Dyer alleges it was apparent NOFD did not have any evidence that Dyer threatened or acted with violence towards Martin. Instead, the NOFD [charged] him with a violation of Rule 21 for failure to be courteous and respectful when dealing with other employees. He was issued a letter of reprimand. Dyer appealed the letter of reprimand.
- Dyer alleges that he took leave in April 2022 because of the harassment he was receiving and he was prescribed medication to deal with the stress from work.
- Dyer alleges that in May 2022 he applied to become a member of the union, but the union voted to exclude him from membership. He alleges he is the only firefighter ever to be excluded.
- Dyer alleges that he was also discriminated against when he applied for the Chief of Special Operations.
- Although Dyer had more time serving as captain and more time on a special operations unit than Danny Simon (a white male), Simon was promoted to the position.
- Dyer alleges that when his son Devontrell Jones joined the NOFD in September 2022 and identified Dyer as his father, his supervisor Captain Neely told him to keep that information to himself.
- Dyer alleges that Neely then spread false rumors that Dyer has a history of workplace violence. He also alleges that Neely told Jones they would give him hell because of his relation to Dyer.
- Dyer also alleges that he is the only captain that is required to have his overtime hours entered by Chief Ashburn (a white male).
- He alleges that throughout the district, other captains supervised by Ashburn are allowed to enter overtime for other captains.
- Dyer further alleges that NOFD employee Milderson (white male) appeared at his civil service appeal hearing as a union representative without “upon information and belief” taking civil leave time for conducting union activities as required.
- Dyer reported this alleged payroll fraud but claims that NOFD failed to take any action or investigate the violation.
- Dyer alleges that in November 2022, white firefighter Williams brought an assault rifle to the engine house in violation of NOFD policy and displayed it by his bed.
- Dyer reported the incident but alleges that NOFD failed to take any action or discipline.
The court rejected all of Captain Dyer’s claims except for two disparate treatment race discrimination allegations that warrant further proceedings. Quoting from the decision:
- [Retaliation]Dyer alleges that he experienced retaliation when he was charged on May 18, 2023, with violation of Rule 35, claiming that he lent, sold, or gave away NOFD property.
- This charge resulted in a 36-hour suspension issued on June 23, 2023.
- He appealed, and following the hearing, the Civil Service Commission granted the appeal and reversed Dyer’s suspension.
- Dyer alleges the charge was never supported by any evidence.
- Upon review of the Commission decision, the only reasonable conclusion is that the charge was not baseless.
- The Commission found that Dyer tried to obtain permission to take a gate valve (used to hook up a firehose to a water hydrant) after receiving a call from an individual with his church about the church’s difficulty hooking up to the water supply at a community event. [He did not obtain permission but took the valve from a reserve truck to use.].
- The Court finds Dyer has failed to state a plausible claim for retaliation.
- Although the violation was 42 days after Dyer filed his EEOC charge, the Court finds that this timing alone is not enough to state a plausible claim.
- Dyer’s retaliation claim under Title VII, LEDL, and § 1981 must be dismissed.
- [Hostile Work Environment] The Court finds that Dyer’s allegations do not state a plausible claim for a hostile work environment.
- The instances of harassment alleged by Dyer are hardly severe or pervasive.
- Only one offensive utterance is alleged—Favalora shouting “fuck you, vee” in February 2020 when Dyer did not respond to Favalora’s demand that Dyer not discuss his overtime work.
- [Race discrimination – disparate treatment] The Court finds that Dyer has stated a plausible claim for race-based disparate treatment as to two incidents.
- He alleges that he was charged with a more severe rule violation than Martin arising out of the February 2022 incident they were both involved in.
- Of course there may be legitimate explanations for this difference in treatment. But at this stage, the Court finds Dyer has plausibly alleged that this difference was race based because their conduct appears to have been similar but the black firefighter was charged with a more severe rule violation than the white firefighter.
- Additionally, Dyer has stated a plausible claim arising out of the denied promotion that was allegedly given to a less qualified white male.
- The remaining incidents… do not plausibly form the basis of a disparate treatment claim.
- [Conspiracy] The Court finds that Dyer’s bare allegations that employees of the defendants “acted in cohesion” is insufficient to plausibly establish a conspiracy.
- Dyer… alleges that “[s]everal firefighters conferred when drafting special reports about the incident.” This alone is also insufficient to give rise to the plausible existence of a conspiracy.
- Without a conspiracy, Dyer cannot state a claim under §1985. This claim will be dismissed.
- [Due Process] The Court finds that Dyer has failed to state a plausible claim for a due process violation.
- First, the Court is not convinced that charging Dyer with a lesser rule violation under Rule 21 in lieu of a Rule 25 violation can fairly be characterized as charging him without notice and an opportunity to be heard when he was allowed to be heard on the conduct at issue.
- Nonetheless, even if the letter of reprimand was issued without due process because he had not previously been notified of a Rule 21 violation, the Court finds that the post-reprimand appeal process remedies that defect.
The case will proceed forward on the disparate treatment race discrimination theory. Here is a copy of the decision:
