Federal Court Grants Summary Judgment to Topeka in Discrimination Suit by Former Fire Captain

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A federal court has dismissed a lawsuit filed by a former Topeka fire captain who alleged race and disability discrimination after he was not promoted to Division Chief in 2022.

Brently Dorsey, who joined the Topeka Fire Department in 1994 and retired in 2022, claimed the City of Topeka discriminated against him on the basis of race and disability, constructively discharged him, and failed to accommodate his medical condition. Captain Dorsey had been diagnosed with leukemia in 2018 and had taken intermittent FMLA leave before his retirement.

The dispute arose after then–Fire Chief Randy Phillips oversaw a process to fill four vacant Division Chief positions. Eight officers applied, and seven were interviewed. Captain Dorsey finished with the lowest score among the candidates. Phillips selected the top four scorers for the positions, which included Division Chiefs of Operations, EMS/Training, Administration, and Fire Marshal.

Captain Dorsey argued the process was tainted by bias, citing alleged irregularities such as allowing another applicant to apply despite not meeting the minimum Captain requirement, the selection of the interview panel, and the City’s human resources director not reviewing the promotions before offers were extended. He also pointed to comments about his energy level, which he claimed were linked to his medical condition.

U.S. District Judge Holly L. Teeter rejected those claims. Quoting from the decision:

Dorsey alleges race discrimination under Title VII based on him not being promoted to a Division Chief position.
Title VII claims are generally evaluated under the familiar McDonnell Douglas burden-shifting framework.
In the context of a failure-to-promote claim, the plaintiff must establish the following prima facie case: (1) he is a member of a protected class; (2) he applied for the position and was qualified; (3) he was rejected despite being qualified; and (4) after he was rejected, the position was filled. If a plaintiff meets this initial burden, the burden shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for its employment action.”
If the defendant meets that burden, the burden shifts back to the plaintiff to show that the stated explanation is a pretext for discrimination.
The City does not dispute that Dorsey can make a prima facie case of race discrimination based on not being promoted. The City also asserts that it had a legitimate, nondiscriminatory reason for its action, namely that the top four scorers were promoted and Dorsey was not in the top four. This satisfies the City’s burden at this stage.
The Court starts the pretext analysis by again noting the reason the City gave for not promoting Dorsey: he scored last out of all the applicants. He scored seventh out of seven and there were only four open Division Chief positions. The promotions went to the top four scorers.
Evidence of pretext, therefore, should present a triable question as to whether that reason—that the promotions were decided based on scores—is unworthy of belief.
For the most part, however, Dorsey does not dispute that he scored last. He does not dispute that the four applicants who were promoted received the four highest scores.
There are no facts suggesting Dorsey’s scores were actually higher and placed him in the top four. There’s not even a cogent argument that his scores should have been higher. In sum, Dorsey points to almost nothing that would allow a factfinder to believe that the stated, non-discriminatory reason for the promotions was unworthy of belief.
Dorsey alleges there is a history of race discrimination in the TFD, including overt racist hostility and discrimination in hiring practices. Importantly, Dorsey does not allege a disparate-impact claim or rely on statistics to make his case.
Rather, he argues that historical instances of racism, which did not involve Phillips or Standifer, coupled with Phillips’s and Standifer’s long history with the TFD, would permit a factfinder to “infer they were chosen [for leadership positions in the TFD] to continue these long-standing policies.”
Here, all Dorsey points to is vague allegations of racism by unspecified individuals at unspecified points in history before surmising Phillips and Standifer must also share that animus and that they therefore somehow rigged the Division Chief promotion process to serve those ends.
Dorsey is not entitled to a trial for race discrimination simply because there have been historical issues or because other firefighters have brought claims of race discrimination unrelated to this case. Mere conjecture that race discrimination is afoot is not enough to defeat summary judgment.
The Court next considers Dorsey’s claim that he was not promoted because of his disability.
The City does not challenge Dorsey’s ability to meet the first two elements of a prima facie case of disability discrimination. But, on the third element, the City argues there is no evidence to infer Phillips’s decision not to promote Dorsey was based on Dorsey’s disability.
Even if Dorsey could establish a prima facie case of disability discrimination, this claim would still fail. The City has come forward with a legitimate, nondiscriminatory reason why Dorsey wasn’t promoted, specifically his low score in the interview.
Dorsey has not put forth any evidence that this reasoning was a pretext for disability discrimination Dorsey alleges he was constructively discharged.
Dorsey has not come forward with sufficient facts on which a jury could find he was constructively discharged. Dorsey does not point to any facts suggesting he was being harassed or was the target of any discriminatory conduct. He points to nothing that anyone at the TFD did that made his working condition intolerable.
There are no facts in the record that Dorsey’s decision to retire was anything but his own unilateral decision based on his apparent assumption that his light duty might end at some point.
This is not sufficient to state a claim for constructive discharge.
Dorsey claims the City failed to accommodate his disability when it did not promote him to Division Chief.
There are no facts suggesting that light duty was not accommodating his health needs or that Dorsey requested but was denied any other accommodation besides the promotion to Division Chief.
After Dorsey did not get hired as a Division Chief, he retired almost immediately, even before he believed his light duty would expire. Other than the promotion, which the City was not required to give Dorsey as an accommodation, and the light duty, which Dorsey had, it is unclear what additional accommodation he needed, sought, but was not given, nor is it clear what interactive process would’ve been needed at that point. Dorsey retired almost immediately after not being promoted to Division Chief.
The City is entitled to summary judgment on Dorsey’s failure-to-accommodate claim.