No relief for fired Salt Lake City female battalion chief despite Civil Service Commission ruling in her favor

Martha Ellis should be reinstated, according to the board’s finding.<br>

Salt Lake City - Martha Ellis is sworn in after being promoted to the rank of Division Chief for Salt Lake, becoming the department's Fire Marshall. Ellis is also the first female promoted to the position in the Salt Lake Valley in the history of fire department. Photo by Francisco Kjolseth/The Salt Lake Tribune 5/7/2009

Martha Ellis, the first female battalion chief at the Salt Lake City Fire Department, was demoted and then sacked a year ago after filing discrimination claims against her superiors.

The city’s Civil Service Commission’s report issued in November said that Ellis, a 22-year department veteran and onetime city fire marshal, was wronged and the city should reinstate her. But four months later, the city has not done so.

Instead, the city attorney continues to fight her in federal court, rejecting Ellis’ claims of gender discrimination and retaliation, and saying her firing was appropriate. The case is moving slowly, extending a painful personnel feud that played a role in mayoral politics.

At the core of the dispute, according to Ellis, was her criticism of some on the department’s executive team — including former Chief Brian Dale — for engaging in personal, for-profit activities on the city’s time, along with her complaints about the design of Fire Station No. 2 that lacked smoke detectors and then caught fire, and the installation of bicycle lanes on 300 South that yielded a road narrower than required by the state and city fire code.

Her supervisors demoted her to captain May 3, 2016. Adding to the humiliation, Ellis said, was that on the day of her demotion, she was escorted out of the Public Safety Building as her peers looked on, in what she described as something of a perp walk.

The difficult working conditions, disciplinary actions and demotion took a toll on Ellis, according to court documents. A mental health clinician provided by the city told her to take an extended period of time off, because she was suffering from anxiety and depression. After four months of disability leave and six months of unpaid leave, Ellis was fired in March 2017.

One branch of the city government has already determined that Ms. Ellis was wrongfully demoted,” said her attorney, Jaqualin Friend Peterson, in court pleadings in U.S. District Court. “But instead of taking corrective action [the city] escalated its unlawful actions by firing Ms. Ellis when she requested a reasonable accommodation for a psychological disability that the city, by its discrimination and retaliation, caused in the first place.”

Further, Peterson argued that the city attorney was treating the Fire Department and the Civil Service Commission as though they were two different entities. “But that is a fallacy,” Peterson said. “The fire department and the Civil Service Commission are one and the same legal entity: The Salt Lake City Corporation.”

City Hall spokesman Matthew Rojas, however, disputes Peterson’s analysis. The lawsuit has little to do with the Civil Service Commission report, he said, because Ellis was terminated for reasons other than those included in the report. The city attorney’s office has determined it is on the right track, Rojas added, because it has won several rounds in the litigation.

For example, on a motion from the city attorney, Mayor Jackie Biskupski, Dale, Chief Karl Lieb and Assistant Fire Chief Robert McMicken were dropped from the gender discrimination and retaliation claims because federal Title VII laws apply to employers, not employees. That leaves Salt Lake City Corp. as the sole defendant.

In addition, Ellis’ whistleblower claim was dismissed because she did not file a timely bond of $300. Ellis can refile that claim, according to the court’s ruling.

In pleadings, John E. Delaney, arguing for the city attorney’s office, maintained that Ellis’ complaint is not supported by facts and is insufficient to move forward. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.”

Although the mayor did not intervene as Ellis was demoted, fired and then mired in litigation, Biskupski had made use of Ellis’ predicament in her 2015 campaign against then-Mayor Ralph Becker, who was vulnerable after sexual harassment charges surfaced in the Salt Lake City Police Department.

On several occasions during the campaign, Biskupski derided Becker on gender equality issues and referred to a female firefighter (Martha Ellis) who had filed with the Equal Employment Opportunity Commission (EEOC), alleging gender discrimination. Biskupski’s campaign promised a safe and fair work environment for women.

Manufactured allegations

The city’s Civil Service Commission ruled in May 2017 in Ellis’ favor, but it didn’t issue its full report until November. That report scolded Fire Department brass regarding the lack of evidence and apparent manufactured allegations in Ellis’ demotion to captain the year before.

The report found that McMicken was “looking for reasons” to discipline Ellis. The 49-page document said the seven allegations brought against Ellis “appear as an attempt to manufacture misconduct and alleged failure of performance to justify disciplinary action, when there were no performance issues.”

The commission ordered that Ellis be reinstated to her position as battalion chief at the same salary level. However, she had already been fired on March 17, 2017, while in the process of negotiating her return.

(Courtesy Photo) Martha Ellis, Salt Lake City Fire Department.

After Ellis’ demotion, Dale determined she could no longer work in an administrative position and ordered her to return as a firefighter. Because she had not seen action on firetrucks for more than 13 years, Ellis requested a training refresher and a physical, as called for by the department union’s directive, according to court documents. She also asked for a gradual break-in period before she went full time, as per recommendations from her clinician.

Those requests were denied by Lieb, according to public documents obtained by The Salt Lake Tribune.

On Feb. 17, 2017, Ellis applied for a third 90-day leave, accompanied by a letter from her health care provider. Lieb denied that request, noting that from May 3 to Aug. 27 in 2016 — before her unpaid leave — she had been on disability leave for an injured hand. If she didn’t return by March 1, 2017, Lieb said, she would be fired.

At the point, she had taken a total of 10 months’ leave.

Ellis attempted to negotiate with the city’s human resources manager, Melissa Green, seeking accommodations through the Americans with Disabilities Act. On March 6, 2017, Green sent an email explaining that Ellis would have to take a position outside the Fire Department. The former battalion chief balked and asked for more details.

On March 14, 2017, Green wrote to Ellis: “[B]ased on your current work restrictions, the fire department is unable to provide a reasonable accommodation that would enable you to return to work in your position of fire captain.”

On March 17, 2017, Ellis again expressed her frustration, regarding the suggestion that she work elsewhere. Options included golf course groundskeeper and Youth City teen specialist. Later that day, Lieb fired her.

Retaliation claims

Ellis’ fights with top managers go back to 2014.

On Sept. 30, 2014, according to Ellis’ lawsuit, Dale and Lieb passed over her to promote a less-experienced, less-educated male counterpart, McMicken — the same person who was later dressed down by the Civil Service Commission for “manufacturing” evidence against Ellis.

On Nov. 25, 2014, Ellis filed a charge of discrimination and retaliation based on gender with the EEOC.

Immediately after that, Ellis was removed from her position as the fire marshal — a position she had held since 2009 — and reassigned to division chief of logistics. She saw it as a demotion, but she retained her battalion chief rank.

Ellis has a reputation for hard work and attention to details, Peterson noted. She holds a master’s degree in homeland security from the Naval Postgraduate School and has a graduate certificate in conflict resolution and mediation from the University of Utah.

She also was one of four recipients of the Harvard Kennedy School of Government fire service fellowship awards in 2012.

In June 2016, several weeks after her demotion, Ellis filed a notice of claim at City Hall alleging fraud, state fire code violations, cover-ups and retaliation by top brass in the department. In it, Ellis alleged she was demoted after raising concerns, including allegations aimed at members of the department’s executive team engaging in personal activities on city time.

“Although I have filed the notice of claim in response to what I believe to be retaliatory disciplinary actions, this story has broader implications in public safety, appropriate use of public funds and transparency in governance,” Ellis said in a prepared statement at that time. “Every effort has been made to resolve these matters at the lowest possible level. Having exhausted all other options, I felt obligated to make my concerns public, as not doing so would be in direct conflict with my responsibilities as a public servant.”

Earlier that year, on Feb. 23, 2016, The Tribune ran a story highlighting Dale’s affiliation with the International Academies of Emergency Dispatch (IAED).

While he was deputy chief, Dale said he taught classes at IAED conferences, earning $20,000 to $30,000 annually. As deputy chief, the city paid him a salary of $110,116 and benefits worth $11,116, for a total package of $121,232.

Dale said in his City Council confirmation hearing in May 2015 and later in a Tribune interview that he had not abused his office or broken the public trust.

But The Tribune found that, in 2012, Dale spent more than 40 days at various conferences, according to his computerized calendar. IAED paid for Dale’s travel and expenses at conferences across the United States and in Europe. The organization also paid him for lectures and training sessions.

Biskupski told The Tribune she would look into the matter.

On March 16, 2016, three weeks after the publication of The Tribune’s story on Dale, Ellis was placed on administrative leave because “she failed to meet certain performance expectations.”

But Fire Department brass apparently determined that discipline was inadequate. She was then demoted to captain.

On May 28, 2016 — three months after The Tribune story on his affiliation with IAED — Dale said he would retire in October of that year. The announcement came just 12 months after he was promoted to chief.

Dale now works for IAED as its associate director of medical control and quality processes, according to the organization’s website.

Recently, the city attorney argued that Ellis’ allegations were not filed in a timely fashion because Title VII requires such responses within 180 to 300 days. The court has yet to rule on that motion.

TIMELINE OF MARTHA ELLIS’ EMPLOYMENT DISPUTE WITH SALT LAKE CITY<br>November 2014 • Martha Ellis files a complaint with the U.S. Equal Employment Opportunity Commission alleging gender discrimination after being passed over the third time for promotion to an assistant chief position.<br>May 2016 • Ellis is demoted from battalion chief to captain.<br>June 2016 • Ellis files notice of claim with Salt Lake City, signaling her intention to file suit.<br>October 2016 • Ellis files suit in federal court claiming gender discrimination and retaliation.<br>March 2017 • Ellis is fired.<br>May 2017 • The Salt Lake City Civil Service Commission rules Ellis’s demotion was unwarranted and that she should be returned to the rank of battalion chief. The Commissions’s formal report came out in November, but Mayor Jackie Biskupski has not acted on the ruling.