Martha Ellis v. Salt Lake City Corporation, et al.

Salt Lake City, Utah personal Injury lawyers represented the Plaintiff who sued on civil rights violation theories.



Martha Ellis joined the Salt Lake City Fire Department ("SLCFD” or the

"Department”) as a firefighter in 1994. Thereafter, she quickly moved up

the ranks. In 2004, she was promoted to Fire Captain and served as the

Fire Marshal for the Salt Lake City International Airport. In 2009, she

was promoted to Battalion Chief and assigned the prestigious posts of

City Fire Marshal and Fire Prevention Bureau Division Chief. She served

in this capacity until 2014. As Ellis progressed through the Department,

she collected accolades and acclaim. In addition to her associate degree

in fire science, she earned a master's degree in national security studies

from the Naval Postgraduate School, a fellowship to study at the Harvard

Kennedy School's Senior Executives in State and Local Government Pro-

gram, and a graduate certificate in conflict resolution and mediation from

the University of Utah. She was also the most decorated female officer

2 There are narrow exceptions to this rule, but none applies here.

Appellate Case: 23-40594

in a fire department sorely lacking women in leadership roles. Ellis re-

ceived a Golden Spanner Award in 1996, a Chief's Certificate of Merit

in 2005, and the Chief's Recognition Medal in 2011.

In late 2013, Deputy Chief Brian Dale became Ellis's direct supervisor.

Dale quickly set up a meeting with Ellis to discuss his expectations for

their relationship. At this meeting, Dale allegedly made a "comment

about taking [disgruntled employees] outside the office or something

along those lines and handing them a tampon.” He also referred to a fe-

male dispatcher as a "mean ass, crazy police b*tch,” and a female ac-

countant for the City as a "b*tch.”

Within several weeks of their initial meeting, Dale began criticizing El-

lis's alleged lack of adherence to the chain-of-command. Specifically, in

an email exchange, Dale complained to Ellis that she was bypassing him

to discuss issues directly with the Chief of the Department, Kurt Cook

. . . . At this time, Cook and Ellis were personal friends. The next day,

January 10, 2014, Dale and Ellis met to discuss Ellis's insubordination.

Unbeknownst to Dale, [Ellis] recorded their conversation, as she often

did with other men in the Department. At the meeting, Ellis agreed to

include Dale on emails to Chief Cook going forward and the conversation

moved on to Ellis's strained relationship with the City's grant writer. Re-

sponding to Ellis's frustration with the grant writer, Dale stated that "Sa-

rah [the employee] can be a real b*tch.” Ellis responded, "But you know

what? The b*tchier the women, the more I actually like 'em. I mean I

love Mary Beth. I really like working with her.” [Ellis] also testified that

during the conversation, Dale made a comment about throwing tampons

at employees and that she made it clear to Dale that his comments were

offensive and unwanted. [Ellis] does not deny that she has used the words

"b*tch,” "b*tchy,” or "b*tchier,” but she maintains that she has never

used them in a way that was hostile towards women.

On February 6, 2014, Dale issued [Ellis] a written warning, allegedly to

address [Ellis]'s flagging performance due to her disregard for the De-

partment's chain-of-command. While Dale maintained that this warning

was not disciplinary, Ellis believed that the warning was "a marker being

placed in [her file] in the hopes of keeping [her] from ever getting pro-

moted again.” Later that month, Dale met with [Ellis] and the Depart-

ment's HR consultant, Jennifer Sykes [ ], to discuss the warning. During

this meeting, Dale complained about Ellis's leadership, her supervision

of subordinates, and her communication with individuals both inside and

outside of the Department. Dale and Ellis also engaged in the following

exchange when Dale attempted to encourage [Ellis] to better connect with

lower-rank Fire Captains:

Appellate Case: 23-40595

Dale: We talked about relationships. We talked about I want you

to get out there in front. Talked about at the grass[root] level, this

is what you can do. As a captain, this is what I'm seeing –– boom,

boom, boom –– this is how you do it. "God, she can do it. If a girl

can do it, I mean ––” You know how guys are out there. If we sit

up here in the ivory tower and talk above their heads—

[Ellis]: [Laughs] Yeah, he just said that. [Laughs]

Sykes: [Inaudible]

Dale: I just––I just––You know––I don't want the guys to think

that you're –– that you and I are just miserable day workers. I

think there is some value in getting in there with those guys and

being able to talk to 'em and understanding what they're going

through. That's all.

[Ellis]: All right.

Ellis wrote and submitted a response to Dale's written warning, as was

her right, arguing that the allegations contained in the warning were false.

She also detailed specific instances in which she was subject to verbal

abuse and discrimination by members of the Department. In her deposi-

tion, [Ellis] testified that she believed the written warning was a result of

gender discrimination for the following non-exhaustive reasons:

1. She "did not feel like [she had] had any formal coaching or coun-

seling, nor did [she] feel like any of that was documented. [She]

felt like it was a blind side. [She] literally had no idea this was

coming.”

2. Dale instructed her to issue a written warning to a female employee

regarding e-cigarettes after she had received a verbal warning,

which Ellis believed was trivial. Dale did not request that she write

up men for similar violations. This led her to believe that the

women in the SLCFD "were taking a hit at this point.”

3. Dale's comment that "If a girl can do it, I mean––' You know how

guys are out there.”

4. She had previously been written up for things that "kind of don't

make a lot of sense.”

5. "[G]uys would keep getting the get-out-of-jail-free cards and, you

know, the rules were different for the women.”

Ellis also believed that the warning was retaliatory because she had pre-

viously complained about the sexist behavior of men in the Department

to Melissa Green [ ], the City's EEO manager. . . . [Ellis] thought that

Appellate Case: 23-40596

"there weren't a lot of [other] explanations for why all of the sudden it

really felt like those micro aggressions had now transferred into a full

court press.”

On September 30, 2014, Chief Cook promoted Robert "Rusty”

McMicken to the position of Administrative Assistant Chief. Ellis had

hoped to receive this promotion. . . . Despite McMicken's similar rank to

Ellis in 2014 [and their similar work history at the Department], she be-

lieved that he was less qualified than she based on her "extraordinary

efforts to get additional training,” her "much broader understanding of

the fire department as a whole,” her work at the "national level,” and her

recently obtained degree in national security studies.

Soon after learning that she would not receive the promotion to Assistant

Chief, Ellis requested to meet with Chief Cook regarding the decision.

Cook invited Dale and Karl Lieb, a Deputy Chief of the Department, to

the meeting, explaining to Ellis that he operated "as one” with Dale and

Lieb. At the meeting, [Ellis] stated that she believed that the decision not

to promote her had "a bit to do with, um, well –– I think the fact that I'm

a woman has something to do with it. I will throw that out there.” . . .

[D]uring the meeting, Lieb explained that Ellis was not promoted, in part,

because he believed that she was not "humble enough.” In response to

this criticism, [Ellis] contends that there were "several times in [her] in-

terview when [she] actually own[ed] up to [her] mistakes.”

In October 2014, Cook removed [Ellis] from her position as Fire Marshal

and appointed her as the new Division Chief of Logistics. While her rank,

pay, and benefits did not change, Ellis interpreted her transfer as a demo-

tion because her responsibilities were reduced. . . .

On November 24, 2014, [Ellis] filed her first Charge of Discrimination

with the Equal Employment Opportunity Commission ("EEOC”). Ellis's

Charge indicated that the Department had discriminated and retaliated

against her because of her gender. It alleged that Dale had singled her

out for punishment and made several derogatory comments towards her

and other women in the Department based on their gender. It also com-

plained that she was unjustly passed over for promotion multiple times

and reassigned to a lesser position against her will. On March 16, 2015,

Ellis sent a letter to the EEOC updating this Charge. Her amendment

focused on the conduct of her new supervisor, Assistant Chief McMicken.

Ellis claimed that since the filing of her initial Charge, McMicken had

denied her networking opportunities, unjustifiably scrutinized her perfor-

mance, and made defamatory statements about her work.

Appellate Case: 23-40597

On April 27, 2015, McMicken delivered a pre-determination letter to El-

lis. The letter informed her that he was considering disciplinary interven-

tion because she was exhibiting "an apparent lack of engagement with

[her] current assignment, a lack of ownership of [her] job responsibilities,

an inability to follow instructions[,] and a lack of respect for [her] chain

of command.” The Department eventually held a hearing on this com-

plaint in June 2015, after which McMicken decided to suspend Ellis for

two days.

On April 7, 2015, Cook announced his retirement, effective April 30,

2015. On April 28, 2015, two days before Cook was to step down, [Ellis]

sent an application for the Fire Chief position to Mayor Ralph Becker. At

this point, Mayor Becker had not formally posted a call for applications.

In response to her application, the Mayor's Chief of Staff, David Everitt

[ ], informed Ellis that Mayor Becker had already selected a new Fire

Chief. Upon hearing this news, [Ellis] offered to speak with the Mayor

about the EEOC Charge pending against the Department's leadership—

the very set of individuals who she assumed had been considered for Fire

Chief. Everitt declined the invitation, stating that he believed a direct

meeting with the Mayor was "not advisable” since Ellis's Charge was

also pending against the City.

On May 4, 2015, the Mayor announced that Dale was to become the new

Fire Chief. His tenure would be a short one because audio of his use of

gendered language was leaked to the press. Everitt later testified that

[Ellis] was not a serious contender for the role of Fire Chief . . . because[,

among other things,] she was "in some cases abrasive and off putting in

others . . . and just broadly did not seem to have the level of respect and

trust that someone in that role should have had for the city.”

In response to both McMicken's discipline and Dale's promotion, [Ellis]

once again amended her EEOC Charge. In a letter to the EEOC dated

May 5, 2015, Ellis alleged that McMicken's unwarranted complaints and

controlling behavior had reached the point where they constituted a hos-

tile work environment. She also argued that the reason she had been is-

sued a pre-determination notice in April was to prevent her from being

considered for the Fire Chief position that eventually opened that May.

On May 22, 2015, [Ellis] sent the Department's EEO Manager, Green, an

e-mail with allegations regarding Cook, Dale, Lieb, McMicken, Human

Resources Director Debra Alexander, and Sykes. Thereafter, four De-

partment employees submitted evidence supporting Ellis's claim that

members of the Department's leadership team, specifically Dale, regu-

larly used sexist language. On August 3, 2015, Captain Steve Hoffman

Appellate Case: 23-40598

[ ] told Green that Dale had said on multiple occasions that "he did not

like [Battalion Chief] Ellis,” that he "wrote her up” and was "finally go-

ing to hold her accountable,” and that he "really hate[d] that b*tch.” On

August 31, 2015, Brittany Blair [ ] told Green that she witnessed a meet-

ing with Dale, Lieb, and McMicken where Dale called Ellis "a b*tch.”

On October 20, 2015, Sarah Bohe [ ] spoke with Green and stated that

while Dale was describing projects that he was working on, he had said,

"Oh that f*cking b*tch is making it so hard,” referring to Ellis. And on

November 2, 2015, Crystal VanDongen [ ] spoke with Green and alerted

her to the fact that she "had been discriminated against based on [her]

gender, been subjected to a hostile work environment and been retaliated

against based on [her] affiliation with Battalion Chief Martha Ellis.”

VanDongen explained to Green that she had heard Dale refer to several

women as b*tches. Additionally, she alleged that McMicken and Lieb

had made offensive comments regarding women.

Green prepared a 24-page report detailing her findings and, on November

18, 2015, determined that the available evidence did not support [Ellis]'s

allegations that she was disciplined, transferred, treated differently, or not

promoted based on her gender. It also found that the allegations against

Dale were insufficiently supported to substantiate a policy violation even

though several members of the Department had come forward to com-

plain that Dale had used misogynistic language to refer to Ellis and other

women in the Department.

In January 2016, the Department promoted Clair Baldwin ("Baldwin”) to

Assistant Chief of Operations. [Ellis] had hoped to receive this promo-

tion. . . .

On March 16, 2016, McMicken issued Ellis a second pre-determination

notice. This notice informed Ellis that McMicken had once more ob-

served a "a pattern of performance” that caused him "to question [her]

ability to effectively manage and perform [her] job duties.” By this time,

McMicken was certainly aware that Ellis had filed an EEOC complaint

against him. On April 11, 2016, the City held a pre-determination hearing

regarding Ellis's job performance, and on May 3, 2016, she was demoted

to Captain. . . .

On May 13, 2016, [Ellis] requested Family Medical Leave Act ("FMLA”)

leave . . . . While on FMLA leave, [Ellis] once more amended her EEOC

Charge. In this final letter to the EEOC, dated July 8, 2016, Ellis detailed

the ongoing alleged discrimination and retaliation that she was experienc-

ing, naming McMicken, Lieb, and Dale as the primary culprits. In addi-

tion to continuing to attempt to redress her situation through the EEOC

Appellate Case: 23-40599

process, [Ellis] also turned to the Salt Lake City Civil Services Commis-

sion ("CSC”) for relief. The CSC had the power to determine whether

City agencies had violated the City's employment policy. At some point

during her leave, Ellis submitted an appeal of her May 2016 demotion to

this body. . . .

While Ellis was on leave . . . , her CSC appeal moved forward. In early

February 2017, the CSC held a two-day hearing to determine the outcome

of the appeal. Ellis, McMicken, and representatives of the SLCFD were

all present and represented by legal counsel. Each side called witnesses

to offer testimony on direct and cross-examination. On March 18, 2017,

the three member CSC met and unanimously voted to overturn and re-

verse Ellis's demotion. The CSC ultimately found that:

1. "McMicken was looking for reasons to discipline Ellis.”

2. "[A]llegations of Ellis'[s] lack of performance are not supported

by substantial evidence.”

3. The reasons for Ellis's demotion were "trivial in nature.”

4. The "allegations appear to the Commission to be an attempt to

manufacture misconduct and allege failure of performance to

justify the disciplinary action, when there were no performance

issues.”

Vacated and remanded