Tim Hrenchir
The Topeka Capital-Journal, Kan.
TOPEKA, Kan. — A federal judge ruled last week in favor of the city of Topeka in a discrimination lawsuit being pursued against it by a former Topeka Fire Department inspector.
U.S. District Judge Holly L. Teeter issued a summary judgment Jan. 14 in the suit being pursued by Amy Bermudez, who resigned in December 2017. A summary judgment is a determination made by a court without a full trial.
The Capital-Journal tried unsuccessfully to get a response regarding the ruling Monday from the city, which had its offices closed because of the federal holiday.
Bermudez contended in a lawsuit complaint filed in November 2018 that the city “constructively discharged” her, engaged in retaliation against her and discriminated against female fire department employees.
Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign.
Teeter wrote in her ruling that Bermudez appeared to have abandoned her claims of constructive discharge and gender-based discrimination, but was continuing to allege retaliatory harassment.
Teeter noted that if a jury considered Bermudez’s retaliation claim, it couldn’t legally take into account events that occurred more than 300 days before she filed a complaint with the Equal Employment Opportunity Commission on April 9, 2018.
Almost all allegations Bermudez made in her lawsuit complaint took place more than 300 days before that.
Only one incident took place within the 300-day period, with that being a situation in September 2017 in which:
- Bermudez asked to be excused from air pack training, and her request was granted.
- A firefighter allegedly told another fire department inspector that someone should go through training to consider themselves a fire department inspector.
- The Topeka Fire Department’s Twitter account a week or two later showed Topeka Fire Marshal Mike Martin in a tie wearing an air pack, accompanied by the caption “No one is immune from training on the new air packs #TrainingInATie.”
To establish a case of retaliation, a plaintiff must show that he or she engaged in “protected activity” to assert rights provided by Title VII of the Civil Rights Act of 1964 and that the defendant, in retaliation, subjected him or her to conduct that might well have dissuaded a reasonable employee from making a charge of discrimination.
“Both incidents were very tame and neither were directed outwardly at Bermudez,” Teeter wrote. “A remark that someone should do firefighter training to consider themselves a fire inspector and then tweeting that no one is immune from training is, at worst, rude or mildly passive aggressive. But it does not objectively rise to the level of conduct that would dissuade a reasonable employee from engaging in protected conduct.”
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©2020 The Topeka Capital-Journal, Kan.