Ga. fire chief files discrimination lawsuit against department

The city fired Fire Chief Rachel Mosby, citing failing job performance, but her attorney charged that the action was discriminatory based on her gender identity


By Becky Purser
The Macon Telegraph

BYRON, Ga. — Former Byron Fire Chief Rachel Mosby has filed a charge of discrimination with the Equal Opportunity Employment Commission.

The city fired Mosby on June 4 citing failing job performance, but her attorney charged that the action was discriminatory based on her gender identity. Mosby, 51, had served as the city’s fire chief for more than 11 years.

Former Byron Fire Chief Rachel Mosby alleged that her civil rights were violated because she had no avenue to appeal her termination. (Photo/Pixabay)
Former Byron Fire Chief Rachel Mosby alleged that her civil rights were violated because she had no avenue to appeal her termination. (Photo/Pixabay)

In the EEOC complaint, Mosby alleges that she was subjected to harassment and a hostile work environment and was intentionally discriminated against and fired in part because of her sex and gender identity. The complaint was provided to The Telegraph by Mosby’s attorney.

“Her termination didn’t have anything to do with her transgender status,” said Byron Mayor Pro Tem Michael Chidester, who is also an attorney. “It had to do with the dissatisfaction overall with her performance as the fire chief (and) her inability to take proper direction as to the desires of council.”

Mosby identifies as a transgender female. She alleges in the complaint that the alleged discriminatory treatment of her began after she informed city leaders and began to present herself at work as a transgender female in January 2018.

However, Chidester said the council had problems with Mosby’s performance for some time. For example, Mosby failed to stripe fire vehicles as directed in accordance with National Fire Protection Service guidelines and did not initiate, as directed, a joint operating agreement with the Robins Air Force Base Fire Department, Chidester said.

The transition

Mosby had been struggling with gender dysphoria for most of her life — something that her employers did not know, the complaint said. Gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he, she, or they identify, according to the American Psychiatric Association.

In the fall of 2016, Mosby began her medical transition “in order to allow herself to properly present as female,” the complaint said. She had initially attempted to transition quietly but realized in the summer of 2017 that other city employees were circulating rumors about her and her appearance, the complaint said.

In September 2017, Mosby felt it was necessary to come out, or go public, to her employees. She then came out to the city administrator, the mayor and fellow department heads, the complaint said.

“Chief Mosby would describe herself as presenting entirely as a female in or around January 2018,” the complaint said. “While she initially thought that this news had been well-received, Chief Mosby often experienced microaggressions and other intentional harassment from her employees, fellow department heads and even members of the City Council.”

Chidester responded, “I don’t know what a microaggression is. That’s some kind of new pseudo/psycho word that doesn’t have any meaning as far as I’m concerned.

“I’m a man who’s a evidence-based, science-based kind of guy. I don’t know what a microaggression is. I don’t consider any such thing to exist, quite frankly. So, I don’t even know what she’s talking about there,” he said.

Chidester also said he did not know of “any intentional harassment from any member of City Council.”

Individuals who reportedly made comments or took actions that were allegedly discriminatory were not identified by name in the complaint. Some were identified indirectly by the title.

“Chief Mosby will provide details about the individuals named in her EEOC charge at the appropriate time,” her Macon attorney Kenneth E. Barton said in an email. “However, at this juncture, she feels that it would be unprofessional and equally unproductive to make allegations about any persons in the media.

“At this time, Chief Mosby’s sole complaint is against the City of Byron, which is the only person or entity that can remedy these unjust circumstances,” Barton said.

In the complaint, Mosby alleged that one council member told her that he didn’t have a problem with her transition, but that he would if Mosby showed up to work in a dress.

“I don’t know the context for that comment,” Chidester said. “That could have been a safety issue for all I know. I wasn’t present for that conversation and don’t know what it was about. So, I would not automatically assign that to a gender-related issue.”

Additionally, another councilman allegedly told Mosby that the city could still use a performance review to get rid of her, the complaint said.

“I’m not aware of anybody making that comment,” Chidester said.

After Mosby came out, the police chief and council members intentionally continued to refer to Mosby with male pronouns, the complaint said.

“Until you have somebody close to you do this, you don’t know how easy it is to continue to refer to them in the same method you have grown to know them, and I have made a conscious effort to catch myself and not do that, as I’m sure others have,” Chidester said. “But you know, you have to realize, we knew him for, well, let’s see, what’s the math, 15 percent of the time, we knew Chief Mosby as Rachel and the other 85 percent of the time, we knew Chief Mosby as J.D. Mosby. So it’s ... just a difficult transition, as I’m sure it is for him, her, you know. So, I just don’t know any other way to address that.

“I can’t speak for anyone but myself obviously. But I’ve been a lawyer for 30 years, you know, and I’m a student of human nature and that would be how I would explain pretty much everything I’ve seen in terms of how everybody in the city has reacted ... There’s been no intent that I’ve seen to be unkind or to discriminate. There’s been an effort on everybody’s part to become used to a new reality and it takes time,” Chidester said.

According to the complaint, in an October 2018 meeting among department heads, the police captain repeatedly referred to Mosby as a male and when Mosby corrected him, the police captain responded, “Whatever dude.” Byron police Capt. Bill Lavender declined comment.

“I don’t sit in on department head meetings,” Chidester said. “So, I wasn’t there, and I didn’t hear it. I wasn’t aware of it.”

Although the police captain’s remarks were heard by the city administrator, no corrective or disciplinary action was taken, the complaint said. City Administrator Derick Hayes, who said in an email that he serves as the city’s designated equal employment officer, declined comment on the EEOC complaint.

“I don’t think it rises to the level of creating a hostile workplace environment,” Chidester said. Should the city have taken action at that point? “This is what the chief (Mosby) says. I wasn’t there. I didn’t hear it. I don’t know whether it happened. “

According to the complaint, “There were other instances when council members either blatantly refused to speak to Chief Mosby, and even one councilman who left the city’s designated table as soon as she sat down at a local Chamber of Commerce dinner.”

Mosby charged that the treatment of her began to change “drastically and dramatically” after she did an interview with WMAZ-TV on April 29 of this year about her coming out as a transgender female.

“I can tell you my treatment of her did not change one wit,” Chidester said. “I’m not aware of anybody who treated her any differently after that interview than before that interview.”

Other charges in the EEOC complaint

The complaint also alleges that the city enacted a hiring freeze the day after Mosby interviewed a qualified candidate, who also happened to be transgender, although the public works and police departments were allowed to continue hiring.

“The timing had nothing to do with anybody who’d been interviewed,” Chidester said. “We had been talking about the fact that we needed a top-down review of personnel because we had begun an examination of our budget.

“I believe our city administrator had already asked every department to come in with 10 percent cuts, and the hiring freeze was initiated simply to keep any new positions from being filled,” he said.

Other departments that lost people during the hiring freeze were able to replace those employees. But because the position Mosby referenced had been vacant for several months, council didn’t consider it a position that was necessary to fill, Chidester said.

“We kept staff levels static,” he said.

In 2018, Mosby purchased about $600 worth of professional attire of about $1,200 budgeted for such attire, the complaint said. But when Mosby was seen wearing a skirt to work for the first time, she was issued a reprimand for allegedly making an unauthorized purchase.

Another female city employee made similar purchases but was not disciplined or required to pay back the money, the complaint alleged. Additionally, the city then changed its policy to require that firefighters wear uniforms. Mosby had been permitted to wear and purchase professional attire prior to the policy change, the complaint said.

“The policy change appeared to target Chief Mosby as the police chief and detectives remained exempted from this policy and allowed to wear non-uniform, professional attire,” the complaint said.

The uniform policy was passed by council May 14 after Mosby had made the purchase, Chidester said. A disciplinary letter was issued May 16, according to Chidester.

“But those were unrelated ... it doesn’t have anything to do with the uniform policy,” Chidester said. “The uniform policy required a uniform at work during the work day.

“If you’re gonna buy a suit, buy a suit but buy it with your own money,” he said. “If you’re gonna buy ... a dress uniform, that would have been acceptable from the city’s budget.”

Chidester said he expects that fire department catalogs include formal dress uniforms for women that include a skirt and a jacket and that such a purchase would have been acceptable, he said.

“I have no clue what she’s referring to when she says some other female employee of the city was allowed to buy clothing,” Chidester said. “I have no knowledge of what she’s even referring to and that’s the problem with these vague assertions. If she’d put a name or if she’d complained when she was disciplined. I’m not aware that she ever made this complaint then. Somebody else might have been disciplined.

“But she wants to calculatedly keep that information to herself apparently to use it later in this EEOC complaint if it is in fact true. Otherwise, why wouldn’t she have brought it to our attention at that time?” he asked.

‘...terminated for any reason or no reason’

In addition, according to the complaint, Mosby fired a reserve firefighter last year who called Mosby a “‘he-she’ to her face.” The same individual had a prior complaint of sexual harassment made by another employee, which also factored into the decision, according to the complaint.

Mosby’s decision was approved by the city attorney and upheld by the city administrator. Upon appeal, the reserve firefighter was reinstated by the city administrator, the complaint said. However, Mosby was not allowed to appeal her firing in June because the city added a provision in its personnel policy in January 2019 that department heads could not appeal disciplinary action.

Uncertain of the city’s legal position on reserve firefighters, an appeal was granted on that basis and under a previous city policy, Chidester said. When Chief Mosby was terminated there was not a policy in place which allows a department head to appeal a termination, he said.

“It’s not that one employee was treated differently than the other,” Chidester said. “It’s that the employee was treated the way the employee was treated under the policy that existed at the time the employee was terminated.”

Mosby alleged that her civil rights were violated because she had no avenue to appeal her termination.

“Basically, the city council has adopted the policy that is prevalent in the state of Georgia,” Chidester said. “You can be terminated for any reason or no reason, and there’s a reason why we adopted that policy and it was the frustration with the inability to get department heads to do what council wanted them to do.”

Regarding Mosby’s termination, according to the complaint, the city administrator sent Mosby an email June 4 asking her to meet with him that afternoon.

When she arrived, she was handed a letter of termination that was effective immediately, the complaint said. “This was the first indication that the city ever gave her that she was going to be terminated, or that her job was in jeopardy in any way,” the complaint said.

However, Chidester said, “Frankly, over the years, though there were plenty of conversations with (Mosby) about things we would like to see done different and he was more than happy to do those things if it agreed with his agenda or her agenda and when it did not, those things would not happen.”

Until the city required it by policy, Mosby would not put lettering on the side of a city-issued vehicle that said the City of Byron Fire Department, Chidester noted as an example.

“We don’t have undercover fire vehicles in the city of Byron,” Chidester said.

The EEOC complaint also disputes the reasons the city outlined for the alleged lacking performance outlined in a termination letter to Mosby from the city administrator.

Additionally, the complaint alleges that Mosby was fired in part due to her disabilities in violation of the federal Americans with Disabilities Act. Mosby suffers from several conditions, especially in her right ankle and lower back-lumbar, and she became further disabled when she sustained injuries to her left hip, left wrist and mid-back thoracic from an on-the-job accident in the spring of this year in which she was not at fault, according to the complaint.

Chidester said Mosby was involved in an accident in a city-owned vehicle in which she was not at fault, but that he was not aware that Mosby had any disabilities.

“There were no doctor’s excuses or work releases or modifications of duties presented to the city,” Chidester said.

An EEOC complaint seeks remedial action if a person believes they have been discriminated at work because of race, color, religion, national origin, age, disability or genetic information, and sex, including pregnancy, gender identity and sexual orientation, according to the EEOC website.

Filing an EEOC charge is required before a job discrimination lawsuit may be filed.

Mosby’s EEOC complaint was filed June 28 after her demand June 19 to the mayor and council to be reinstated within two business days was not met.

Byron City Attorney Thomas F. Richardson declined to comment. Byron Police Chief Wesley Cannon could not be reached for comment.

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©2019 The Macon Telegraph (Macon, Ga.)

 

McClatchy-Tribune News Service

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