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Federal judge finds for city of Topeka in alleged discrimination suit

(WIBW)
Published: Jan. 21, 2020 at 5:30 PM CST
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A federal court judge has ruled in favor of the City of Topeka when a Topeka firefighter, a 25-year veteran, sued the city and fire department, alleging she suffered "constructive discharge" from the department.

"Constructive discharge" is conduct that would compel a reasonable employee to resign.

U.S. District Court Judge Holly L. Teeter issued a ruling of summary judgment to the city of Topeka and the fire department. The ruling was issued on January 14.

Summary judgment is a ruling entered by a court for one party against another party without a trial, according to the Cornell Law School.

Bermudez was assigned to fire suppression from 1992 to 1999 when she became a fire inspector. In December 2017, Bermudez submitted a letter of resignation, citing intolerable working conditions.

In April 2018, Bermudez filed a a complaint tied to the Equal Employment Opportunity Commission. Bermudez alleged gender discrimination and gender-based hostile work environment.

Most of the alleged incidents occurred more than 300 days -- the cutoff time frame to file a complaint tied to that time frame -- before Bermudez filed the complaint with the EEOC in April 2018. When the ruling was issued, the only remaining allegation was Bermudez' complaint that she suffered retaliatory harassment, which was less than 300 days before she filed the complaint.

To show "retaliatory harassment," the judge said Bermudez must show:

-- she engaged in protected opposition to discrimination;

-- the defendants subjected her to conduct that might well have dissuaded a reasonable employee from making a charge of discrimination;

-- and "a causal nexus" exists between Bermudez' opposition and the defendant's conduct.

On the second point, the "traditional hostile-work-environment concepts of 'severe' or 'pervasive' still apply in a retaliatory-harassment claim," the Teeter ruling said.

"The conduct must be sufficiently severe or pervasive that it could well dissuade a reasonable worker from engaging in protected activity," the judge wrote.

The judge said the Bermudez "claim falls far short of meeting that standard," Teeter wrote.

After Bermudez sought to be excused from a training course tied to air packs and she was excused, someone made mild comments to a third party, and a photo was posted on a fire department Twitter account, which carried the caption, "No one is immune from training," the judge said.

The judge "finds that this conduct, even when considered collectively, is not sufficiently severe or pervasive that it would dissuade a reasonable worker from engaging in protected activity," the judge wrote.

"Both incidents were very tame and neither was even outwardly directed 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," Teeter wrote.

"It is well established that Title VII (of the Civil Rights Act of 1964 , which in part prohibits employment discrimination based on sex) is not 'a civility code for the American workplace,' " the judge wrote, quoting another federal court ruling.

Finally, Teeter noted that the last incident complained of by Bermudez occurred in September 2017, that Bermudez waited another two months before resigning, and then gave two weeks notice.

"That belies any claim that she was suffering an intolerable work environment," Teeter wrote. "Accordingly, the city is entitled to summary judgment on Bermudez' constructive discharge claim."

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