Kevin Dumont is a white City of Seattle firefighter. The Fire Department is governed by what is colloquially referred to as the “rule of five,” in which the Fire Chief has the right to select from the five leading applicants for a position.

Gary Morris was the Fire Chief from July 2001 until April 2004. In 41 of 45 instances, he promoted the top-scoring applicant on a Civil Service list. In the other four instances, Morris appointed someone belonging to a racial or ethnic minority group, while the top-scoring person was a white male.

Dumont and Eric Lanier were candidates for promotion from the position of deckhand to an open fireboat engineer position. Dumont scored 105.03 on the examination; a second candidate scored 103.50; and Lanier scored 93.95. When Morris promoted Lanier, Dumont brought a lawsuit against the City based upon a Washington statute which prohibits preferential treatment in public employment based on gender, race, ethnicity, or national origin.

A trial court granted the City’s motion for “summary judgment,” dismissing Dumont’s lawsuit without a trial. The Washington Court of Appeals reversed the trial court’s decision, finding that Dumont had elicited sufficient evidence to warrant a trial. Using a traditional “burden-shifting” approach, the Court found that Dumont had the initial obligation of proving a prima facie case of discrimination – showing he was in a protected class, that the adverse employment action was taken with respect to him, and that another applicant not in his protected class received the position. Once Dumont proved his prima facie case, it was up to the City to show a legitimate non-discriminatory motive for its promotional decision. Had the City met that burden of proof, the Court observed, then Dumont would be afforded “a fair opportunity to show that the City’s reason for the adverse action was a pretext.”

The Court found that Dumont proved his prima facie case, and that the City had advanced a legitimate business decision for its decision to promote Lanier, citing Lanier’s greater experience in the Department generally and in the marine division of the Department specifically. The Court then found that Dumont had submitted sufficient legitimate evidence to warrant a jury trial on the question of whether the City’s decision to promote Lanier was a “pretext” for discrimination. The Court observed that: “The statistical evidence is straightforward. In every single instance that Morris promoted someone other than the top-scoring applicant, he promoted a member of a racial or ethnic or racial minority over a white male. The converse is not the case: In no instance did Morris deviate from test rankings to promote a white person over a minority person. Morris also never promoted a lower-ranked white person over another higher-ranked white person. The evidence that Dumont has submitted supports the inference that the only apparent characteristic shared by the persons promoted out of order is that they were a racial or ethnic minority person. This fact constitutes evidence from which a jury could conclude that minority status was the actual reason for Morris’ out-of-order promotion of Lanier.”

The Court also cited the fact that Dumont presented evidence that Lanier had been subject to more than twice the number of instances of official discipline than the next most-disciplined officer promoted by Morris. The Court found that “the inference arising from these disparities is with Lanier’s and Dumont’s professional records. Dumont presented evidence that he was, in fact, more qualified to serve as fireboat engineer than was Lanier. Evidence of superior qualifications alone may suffice at least in some instances to show pretext.”

Dumont v. City of Seattle, 200 P.3d 764 (Wash.App. 2009).

This article appears in the April 2009 issue