Employer Not Necessarily Required To Transfer Firefighter Suspected Of Discrimination

Quentin Schamber was an Engineer with the Denver, Colorado Fire Department, and was assigned to Station 25. Lieutenant Dennis Horton was Schamber’s immediate supervisor. On October 27, 2008, Horton told Schamber to stand in front of a fire engine approximately five to ten feet away. Horton then activated the engine’s siren without warning Schamber. As a result, Schamber suffered a loss of hearing in his left ear and tinnitus.

In a post-incident statement, Horton stated that he had become frustrated with Schamber for his “excessive use of the siren on Engine 25,” and that he turned on the siren in a misguided attempt to have Schamber “understand the use of the sirens.” Schamber was eventually placed on modified duty as a result of his injury.

Assistant Chief David McGrail discussed the incident with Division Chief of Operations Charles “Randy” Stewart and Deputy Chief Rex King. They agreed that McGrail should conduct an investigation by obtaining written statements from Schamber and Horton. The statements were factually consistent in all material respects, and were given to Stewart and King. King then informed Fire Chief Nick Nuanes about the Incident. Stewart, King, and Nuanes all considered Horton’s actions to warrant investigation and disciplinary action.

On November 14, 2008, Schamber approached King and inquired about the status of the investigation. As a result of their conversation, King requested Schamber to send him a summarizing letter so that he could assume authority over the investigation. In his letter, Schamber stated that he did not want to work with Horton and that he did not “feel safe working with Horton.”

Schamber was released from modified duty on December 22, 2008. If he had immediately returned to Station 25, Schamber would have needed to work under Horton. To avoid this conflict, it was agreed that Schamber should take his remaining vacation over three days and be given an additional day of paid administrative leave to end out the year.

On January 2, 2009, Schamber returned to Station 25 on the B shift, and Horton was transferred to the C shift. Schamber was always relieved from his duty before Horton reported for duty, and after the January 2, 2009 shift changes, Schamber never interacted with Horton again.

As a result of its investigation, the Department suspended Horton for five days, and ordered him to take a conflict resolution class on his own time and expense. Horton was eventually transferred to another station in June of 2009.

Schamber sued the City for race discrimination, alleging that the City’s failure to immediately transfer Horton amounted to an “adverse employment action” that was discriminatory.

A federal court was unconvinced. The Court started with Schamber’s claim that the City’s failure to transfer Horton from Station 25 immediately after the incident deprived Schamber of overtime opportunities. While the Court found that an employer’s denial of overtime opportunities could conceivably constitute an adverse employment action, “Schamber was not precluded from working overtime shifts by the City; rather, Schamber simply did not want to take on overtime shifts where he would work under the supervision of Horton. Even if the Court found that the City had constructively denied overtime opportunities to Schamber by not promptly transferring Horton, Schamber has not presented any evidence that there were available overtime opportunities on Horton’s shift.”

The Court then turned to Schamber’s argument that the failure to transfer Horton amounted to “an adverse employment action because he was forced to live in fear of his safety, lost out on the ability to interact with other firefighters, was constantly on guard, and had to leave the firehouse immediately after his shift was over.” Once again, the Court was unconvinced, holding:

“Schamber’s continued fear of Horton does not make the City’s failure to promptly transfer Horton to another firehouse an adverse employment action. Schamber did not suffer a significant change in employment status as a result of Horton remaining at Station 25 after the incident. Schamber has not alleged that he was demoted, that his compensation was reduced, that his job responsibilities were altered in anyway, or that his future employment prospects were harmed.

“Forcing a person to work under the supervision of a person who had previously assaulted him could constitute an adverse employment action. However, in this case, it is undisputed that the City took steps to ensure that there was no further interaction between Schamber and Horton, either as a supervisor or as a co-employee. Although Schamber may have preferred that the City transfer Horton to another station immediately after the incident, not everything that makes an employee unhappy is an actionable adverse action.”

Schamber v. City and County of Denver, 2011 WL 6749802 (D. Colo. 2011).