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Motion reveals officials’ roles in alleged Fire Department discrimination

Thursday, June 2, 2011 by Josh Rosenblatt

Attorneys for former Austin firefighters Don Smith and Greg Nye have filed a motion for partial summary judgment in their racial discrimination case against the Austin Fire Department. According to those attorneys, the motion, which contains portions of the depositions of several high-ranking city officials, proves that AFD Chief Rhoda Mae Kerr made promotions in 2009 based on race, and thereby discriminated against their clients.


In December 2009 Smith and Nye, both former battalion chiefs, filed suit against Kerr and other city officials claiming Kerr had passed them over for promotions to the rank of assistant chief for racial reasons. Smith and Nye are both white. The men Kerr promoted, lieutenants Richard Davis and Matt Orta, are African-American and Hispanic, respectively.


Kerr has sole discretion to select her executive staff.


In the motion, dated May 9, Smith and Nye’s lawyers point out that Davis and Orta jumped four ranks to become assistant chiefs. Battalion chief, meanwhile, is only two ranks below assistant chief. They also argue that Davis and Orta were selected specifically to fill positions being vacated by an African-American and a Hispanic assistant chief.


“Every shred of contemporaneous evidence indicates these promotions were made based on race,” the motion reads, “from the racial-diversity mandate under which Kerr was hired to contemporaneous City Council pressure to diversity the executive team …”


To prove their point, the plaintiffs’ attorneys reference the depositions of Kerr, several Council members, and members of the city managers office, and other documents.


There are several citations that seem to point toward pressure on Kerr to diversify – and/or maintain diversity within – her executive team. For example, three weeks after Kerr’s appointment, in late 2008, at a Council meeting, Mayor Pro Tem Mike Martinez said, “And so when I look at the (all-Caucasian AFD) executive team … I look forward to seeing a diverse executive team as well, in the very near future.” 


At a Council meeting in May 2009, Martinez called diversifying the executive ranks a “mandate.”


In her own deposition, Kerr said race was a “deciding factor” in promoting Davis and Orta. On April 24, 2009, Kerr sent a memorandum to the city manager’s office in which she wrote that promoting Davis and Orta to assistant chief would “increase diversity at the executive level.”


Kerr could not be reached for comment for this story, and Assistant City Attorney Christopher Coppola told In Fact Daily he couldn’t talk about ongoing litigation.


Asked whether he was surprised by Martinez’s or Kerr’s statements, plaintiff Doug Nye, who has since retired from the department, told In Fact Daily, “I was a chief officer with the department 15 years before I retired, so I was very aware of what was going on behind the scenes. I wasn’t surprised by anything I read; I knew that’s what was happening. I don’t think anybody in the public really understood that, but most firefighters knew. Still, it’s pretty glaring.”


Nye and Smith are suing the city both for damages caused by what they see as racial discrimination and on behalf of Emergency Responders for Equality, a group, he said, “of existing firefighters who want to remain anonymous and want to restore some integrity to the promotional process and seek to upgrade it to a merit-based system.”


Attorneys for the city have filed their own motion for summary judgment. U.S. District Court Judge Lee Yeakel declined to hold a hearing on the motions but will instead make a decision based on their written materials.


If Yeakel finds in favor of the plaintiffs, the city would likely either settle or go to trial on whatever issues are left in the case. If the judge does not grant a summary judgment for either side, the full case would likely go to trial (though the parties could reach a settlement at any time up to a verdict in the case).

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