When Words Become Weapons, Part 1

by Dennis L. Rubin

“Oyez! Oyez! Oyez! All persons having business before the United States District Court are admonished to draw near and give their attention, for this court is now sitting. God save the United States and this honorable court! All rise, the Honorable Judge Forrester is presiding.” With the bailiff serving as the court crier, the next lawsuit in which I was a named as a defendant was now officially underway. This legal proceeding seemed like it was a scene from the motion picture “Groundhog Day,” in which the characters re-live February 2 over and over again until male lead (Bill Murray) figures out how to get the leading lady to fall in love with him. The connection to this trial is that I find myself back in the same Atlanta courthouse only after a short break from completing a very similar case, going through the same legal process.

This specific case took its good time to wind its way to the court’s docket. Oddly enough, I had left Atlanta (GA) Fire Rescue Department on April 15, 2007, to go to work in my hometown in Washington, D.C. This reverse-discrimination claim was just reaching the court system on July 17, 2012, more than five years after I left Atlanta employment. It was about seven years or so from when the alleged harm was endured by three former Atlanta city workers. Sometimes, the wheels of justice grind slow, and this was one of those circumstances. The Richard B. Russell Federal Courthouse was becoming a far too familiar setting for me; I once again found myself sitting at the defense table. However, the complaints filed against the city and I were quite unusual, compared to all of the previous cases. This time, three battalion chiefs claimed that the city of Atlanta and I were guilty of reverse discrimination. The charging document went into some detail (as they all to do) about my bias towards only promoting black members to senior ranks within the department. Further, the specifications in this document indicated that three black chiefs were promoted into senior ranks because city hall directed me to promote African American members only. The written complaint went on to point out that all of the three white members listed in this lawsuit were more qualified than their black counterparts.

I thought that surely someone in the legal system would check the records and determine that this was not the truth and dismiss this bogus action. In fact, this claim against me was not close to the truth. The record reflected that I had the opportunity to promote five members to the rank of deputy fire chief (four trumpets– second level in command of the organization) during the time in dispute. Of the five promoted, three were white members, one was an Asian, and one was a black member. Only 20 percent of the promoted folks (one person in all) was black in the deputy chief group. Next, I promoted seven assistant fire chiefs (three trumpets–third level in command of the organization) during the specified time. The breakdown by race among the assistant fire chiefs that I promoted was 43 percent white and 57 percent black. The overall ratio of senior chief officers promoted was 58.5 percent non-black members, whereas 41.5 percent of those promoted during the timeline spelled out in the complaint were black members.

These facts were well established and clearly indicated something quite different occurred in reality than what I was accused of doing by these three city workers. Surely the judge would dismiss this case with prejudice [1], or so I thought. That, of course, was not to be, and there I sat looking up at the oak judge’s bench. As the jury was selected, the plaintiff’s attorneys only “struck” [2] people of color. This opening action amazed the presiding judge. Before the selections were finalized, the judge gave a very stern warning to the pair of lawyers. His Honor’s insightful words sounded something like this: “…for a lawsuit focused on reverse discrimination, the plaintiffs should not open with demonstrating a blatant case of discrimination in the jury selection process. The fact that the plaintiffs have struck only people of color has not been lost on this court.” It appeared his Honor had enough of this foolishness; he disallowed the last jury strike that the plaintiffs planned on using to eliminate a fourth person of color. Wow, maybe sitting through another case wouldn’t be so bad after all.

Structure of this Case and The Rule of Law

Once the jury of eight was impaneled (civil trials have eight jurors, whereas criminal trials use 12 jurors in the federal system), the judge directed them to go to the jury room. It was at this time the judge discussed the “rule of law” as it pertained to essences of this case to the open courtroom without the jury present. Neither side would be allowed to provide any testimony as to why one member was selected over any another member for the promotions in question. No discussions about an individual member’s certifications, education, training, experience, background, and job performance were to be a part of this case. It was at this point that I realized it would be a challenge for the city of Atlanta to prevail.

As I heard the judge’s pretrial instructions, I realized that just about all of my trial preparation and thought processes would be inadmissible. The scales of justice are cast wearing a blindfold. Issues of fact, such as the fact that all three of the plaintiffs had had been passed over for promotion by several fire chiefs before I was appointed, could not be used in the trial testimony. The three workers had the opportunity to be promoted by three fire chiefs after my watch; only one of the three was promoted. One of my accusers (the only one promoted after I left the department) was subsequently demoted and reduced two ranks shortly after his promotion, but again this fact would not be introduced during this hearing. Another member of the plaintiff’s group requested a voluntary demotion to avoid being assigned to a day-work position. Apparently a staff position at Atlanta Fire would interfere with his second full-time job with another fire department. Of course, as you probably guessed, this information would not be brought up in this trial.

The rule of law dictated that no facts would be discussed about the plaintiffs’ performance, skills, knowledge, abilities, or organizational commitment. This case would not focus on any of those critical job skill elements. The case would be won or lost on whether discrimination was exhibited by me and could be proved by the plaintiffs. The question is whether or not I had established an environment of reverse discrimination within the organization that prevented the promotion of this trio regardless of whether they had the requisite skills, knowledge and abilities to perform the duties associated with the ranks that they felt that they deserved.

The other item that I thought to be very appropriate and germane for the jury to hear to help them resolve this case was a recent related Atlanta Fire Rescue lawsuit. In this earlier case, I was successful in defending the city and myself in the very same courthouse. Interestingly enough, that lawsuit claimed that I refused to promote black members to the rank of chief officer. The earlier case was the exact opposite and the reverse of the claim that I was now facing. After five days of trial and two days of deliberations, the jury in the earlier case found the city and I not guilty. In fact, the city asked for and was awarded costs and legal fees associated with the defense of this case from the plaintiff. The mayor commented at a weekly cabinet meeting (as both cases were being discussed in the local media), “Chief Rubin had to be doing something right. If he was being accused of discrimination and reverse discrimination at the same time, that’s not possible.”.

The rule of law blocked information (job performance, lack of promotions, demotions, previous lawsuits, etc.) that seemed like the best way to demonstrate the truth in this or any case about a promotional process. I had hoped that these facts would go a long way to prove my innocence beyond a reasonable doubt, once and for all. But the “rule of law” would forbid this information to be presented.

The story of this trial continues next month in part 2.

ENDNOTES

[1] Contrary to the way it may sound, dismissal with prejudice means that the case is thrown out of court and the plaintiff is barred from ever filing another suit about the same claim.

[2] Both the plaintiff and defendant attorneys can remove any potential juror from being impaneled on the jury by asking the Judge to “strike” those potential jurors from the pool.

MORE DENNIS RUBIN

If you enjoyed this information, Dennis Rubin has written a book that has more details and case studies about being a fire chief in a fairly busy city–Washington, D.C.–to be published soon by Fire Engineering: D.C. Fire. For more info, CLICK HERE.

Dennis L. RubinDennis L. Rubin is the principal partner in the fire protection-consulting firm D.L. Rubin & Associates. His experience in the fire and rescue service spans more than 35 years. He has served as a company officer, command level officer, or fire chief in several major cities, including Dothan, Alabama; Norfolk, Virginia; Atlanta, Georgia; and Washington, D.C. He served on several committees with the International Association of Fire Chiefs, including a two-year term as the Health and Safety Committee chair. He is a graduate of University of Maryland.

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