California Court Upholds Dismissal of Fire Captain’s Discrimination and Retaliation Suit

The California Court of Appeals has upheld the dismissal of a lawsuit filed by former Guadalupe Fire Captain Ryan Mack, who alleged disability discrimination and retaliation under the state’s Fair Employment and Housing Act (FEHA). The court ruled that Captain Mack did not suffer an adverse employment action when the city required him to undergo fitness-for-duty evaluations in 2022.

Captain Mack, who served with the Guadalupe Fire Department from 2017 until his resignation in June 2023, claimed he was targeted for his role as a vocal union advocate. He alleged the department ordered the fitness-for-duty examinations in retaliation for his protected union activity. The order came after Captain Mack called in sick on March 8, 2022, telling Fire Chief Michael Cash he was not feeling capable of doing his job. Two days later, Human Resources Manager Emiko Gerber notified him that he was being ordered to complete both physical and psychological evaluations. The memo warned that failure to comply could be deemed insubordination and subject to discipline, but Captain Mack remained on paid leave and was cleared to return to duty in April 2022.

The trial court granted summary judgment for the City of Guadalupe, Fire Chief Michael Cash, and HR Manager Emiko Gerber, finding that Captain Mack failed to show he suffered any adverse employment action under the Fair Employment and Housing Act. That prompted Captain Mack to appeal.

The appellate court found that the order for fitness for duty testing did not amount to discipline or any adverse employment action. As the court explained:

• A reasonable trier of fact could not find that the fitness for duty order was an adverse employment action.
• The City’s policy manual expressly authorized fitness for duty examinations.
• The City’s personnel policy does not list fitness for duty examinations in its discipline tiers, and Chief Cash declared he ‘did not mean it as discipline.’
• Appellant [Captain Mack] was paid while on leave pending the two examinations.
• After passing the examinations, he was cleared to return to full duty in April, the month after the fitness for duty order issued.
• That order did not cause appellant professional harm, and such harm cannot reasonably be inferred from appellant’s resignation over a year later.”

Captain Mack also argued that the testing and subsequent workplace friction amounted to a constructive discharge — that is, that his working conditions were so intolerable that he was forced to resign. The court rejected that claim as well, writing [internal cites and quotation marks removed to improve readability]:

• Appellant argues that even if the invasive testing was not an adverse action he could not withstand harassment and retaliation, which forced him to find a different position outside of Respondents’ employment, which constitutes an adverse employment action.
• Appellant contends that whether or not Respondent’s actions in themselves were an adverse action, they as viewed together can be regarded as the constructive discharge of Appellant.
• We conclude appellant was not constructively discharged as a matter of law.
• Constructive discharge, like actual discharge, is a materially adverse employment action.
• In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.
• The evidence would not allow a reasonable trier of fact to find or infer that appellant’s working conditions were so unusually adverse a reasonable employee would have felt compelled to resign.
• Appellant’s conclusory allegations of and references to harassment, discrimination, and retaliation are unavailing.
• The record belies any constructive discharge claim. Tension between a union advocate and management is insufficient.
• Conduct like Human Resources Manager Gerber misplacing retirement documents or using the term “Tacoma Fire” does not produce egregious working conditions.
• Moreover, the no confidence vote by fire department employees against Chief Cash fails to create a triable issue of fact.
• Conditions like a lack of training opportunities and Chief Cash hiring his personal mentee do not compel resignation.
• Indeed, appellant worked at the department for over a year after the vote of no confidence document is dated.
• Under the totality of the circumstances in the record, appellant was not constructively discharged as a matter of law.

Finding no evidence that Mack’s working conditions met that standard, the court affirmed the trial court’s ruling granting summary judgment for the City of Guadalupe, Chief Cash, and HR Manager Gerber. Here is a copy of the decision.