Page 1 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH Plaintiff, David Barron alleges as follows: PARTIES 1. David Barron (“Plaintiff”) is a Black man who, at all material times, was employed by City of Portland (“Defendant”), located in Multnomah County, Oregon. 2. Defendant is a municipality and an Oregon domestic non-profit corporation organized and existing pursuant to the laws of the state of Oregon as a political subdivision thereof. / / DAVID BARRON, an individual, Plaintiff, v. CITY OF PORTLAND, a Municipal Corporation, Defendant. Case No. 24CV29169 THIRD AMENDED COMPLAINT EMPLOYMENT DISCRIMINATION, NEGLIGENCE, HOSTILE WORK ENVIRONMENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, ATTORNEY FEES CLAIM FOR: $3,250,000 FEE AUTHORITY: ORS 21.160(1)(e) JURY TRIAL DEMAND CLAIM NOT SUBJECT TO MANDATORY ARBITRATION 5/13/2025 11:46 AM 24CV29169 Page 2 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 3. Defendant operates the Portland Bureau of Fire and Rescue (“Portland Fire”). 4. At all material times, Defendant employed Plaintiff and conducted regular and sustained business activities in Multnomah County. 5. All, or substantially all, of the facts alleged herein occurred in Multnomah County. 6. At all material times, Defendant was liable under the Oregon Tort Claims Act for the acts of its agents and employees acting within the course and scope of their employment. 7. Plaintiff properly and timely provided notice of his claims pursuant to the Oregon Tort Claims Act. Notice was provided pursuant to communications with Professional Standards Manager Fallon Niedrist De Guzman during May 2023 and as more specifically alleged herein. Conduct occurring in the 180 days preceding this notice are referred to as occurring during “Actionable Period One.” Conduct occurring in the 180 days preceding the filing of Plaintiff’s Complaint are referred to as occurring during “Actionable Period Two.” JURISDICTION AND VENUE 8. Jurisdiction and venue are proper in this Court pursuant to ORCP 4 and O.R.S. § 14.080 because Plaintiff’s claims arose in Multnomah County, Oregon. GENERAL ALLEGATIONS 9. Defendant has a history of race-based discrimination. Defendant’s culture is dominated by racist, protectionist individuals in positions of power within the organization acting in concert, often explicitly, to limit the involvement, promotion and power of minorities in Defendant’s operations. While Defendant tolerates racial minorities in roles with limited power, upper echelons of white Page 3 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 leadership feel threatened by racial minorities due for promotions to positions of real power in the organization. Defendant’s senior leadership use ridicule, coercion, social leverage, subjective assessments, manipulation of testing, and selective withholding of resources to discriminate against Black firefighters by limiting their participation, promotion, comfort and success. Like other racial minorities employed by Defendant, Plaintiff endured dehumanization, retaliation, career stultification and harassment at work in general and when he complained or opposed Defendant’s unlawful employment actions. 10. Plaintiff was hired by Defendant on or about August 2, 1999. 11. Plaintiff served the citizens of Portland for over 25 years while employed by Defendant. 12. Defendant publicly used Plaintiff’s image to support its claim to inclusivity. 13. Defendant’s Human Resources Administrative Rules (“HRARs”) declare “[t]he City of Portland is committed to creating a respectful and professional work environment [] free of harassment, discrimination, and retaliation and that promotes employment opportunities.” 14. Any forms of harassment, discrimination, and retaliation, whether they violate state and federal laws or manifest in forms or conduct not conducive to creating a respectful and professional work environment for employees, violate this rule. 15. The HRAR’s create a unilateral contract between Defendant and its employees. 16. HRAR 2.02 defines harassment, discrimination, and retaliation. It provides examples of retaliation, which include demotion, suspension, failing to hire or consider hiring, failing to treat impartially when making employment-related decisions, or assigning an individual the least Page 4 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 desirable job. The rule defines retaliation as conduct likely to deter an individual from reporting or supporting a claim of harassment or discrimination. Moreover, HRAR 2.02 requires supervisors or managers aware of such conduct to “take appropriate corrective action to stop the harassment, discrimination, and retaliation.” 17. Within Portland Fire, the HRAR requirement that all complaints of discrimination are properly investigated is frequently ignored and was ignored in the instant matter. 18. Defendant seldom investigates complaints of race-based discrimination. If a complaint of race-based discrimination is investigated, it is improperly and cursorily done. 19. Defendant has been aware of the disparate treatment against Plaintiff for several years. 20. Despite this knowledge, Defendant failed to take appropriate action and instead aided in its continuance by ignoring complaints, failing to investigate or failing to investigate fully, and failing to remedy the cause of complaints. 21. An internal audit of Defendant’s response to misconduct and discrimination revealed a lack of accountability, responsiveness, and oversight. Few, if any, have incurred consequences for Defendant’s acts and omissions. 22. For raising their concerns, Portland Fire’s managers label Plaintiff and other non-white firefighters as troublemakers. 23. Although Defendant is aware of the discriminatory conduct set forth herein and supra, Defendant has failed to take appropriate measures to address these issues. / / Page 5 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 24. As a result of Defendant’s acts and omissions, Black firefighters are pushed out or forced to consign themselves to persistent discrimination. 25. Throughout Plaintiff’s tenure with Defendant, he was intentionally given inadequate or outdated training materials, singled out for differential, lesser training or preparation for critical tests or functions by Defendant’s senior or other empowered leadership. PLAINTIFF’S EARLY CAREER 26. In 1999 at the start of Plaintiff’s employment, Plaintiff participated in a firefighter training program. 27. Plaintiff’s peers participating in the program contained a larger than usual number of women and racial minorities. 28. During training Defendant ramped up pressure on the new trainees to be shown off to the public and illustrate diversity in Defendant’s employees. 29. Minority trainees, including Plaintiff, were brought to community events while other trainee groups were not given as much public attention. 30. Plaintiff successfully completed the training program and began working as a firefighter at Fire Station No. 8. 31. In the early years of Plaintiff’s career as a firefighter, he enjoyed his work experience and was dedicated to serving his community. / / Page 6 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 32. In or around 2004, Plaintiff was promoted to Lieutenant after successful completion of the written exams and assessments. Plaintiff began his probationary period at Fire Station 22. 33. On the very first day of work as a Lieutenant, Plaintiff was summoned by the Battalion Chief to district headquarters. 34. The Battalion Chief was holding a disciplinary meeting with a firefighter, Jim Harder, and instructed Plaintiff to only report Mr. Harder’s behavior directly to him, and not anyone else. 35. Although this struck Plaintiff as odd, he did not question the orders from a direct superior. It was evident to Plaintiff that successful completion of his probationary period would require him to police the conduct of Mr. Harder. 36. This placed Plaintiff in a difficult position because he was much younger than Mr. Harder. Defendant was aware of these circumstances and expected Plaintiff to either rise above the uncomfortable situation or fail his probationary period. 37. Despite this challenge, Plaintiff successfully completed his probationary period and, at the age of 25, was one of the youngest Lieutenants among Defendant’s ranks. 38. Approximately six months later, Plaintiff was placed at Fire Station 7 (originally Fire Station 41), where he worked for the next ten years or so. 39. During his assignment at Fire Station 7, Plaintiff worked hard as the youngest officer at the station. / / Page 7 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 40. This included taking many classes, building community with his peers, and working closely with veteran firefighters and officers to learn as much as possible. 41. Plaintiff was satisfied with his job at the time but had a goal to continue to move up the ranks and promote into leadership roles. LACK OF PROMOTION 42. Around 2016 or 2017 Plaintiff was moved to Fire Station 18. 43. During this time, Plaintiff began to hear rumors of a group of officers who believed Black firefighters were causing problems in the organization and trying to take their jobs. 44. This was also the period of time when Plaintiff’s trainee group, with many women and racial minorities, were due for promotions. 45. Plaintiff learned that Chief Chris Barney and Tim Matthews organized a meeting of the then- Captains with a goal to prevent the promotion of racial minorities to positions with increased power. 46. When Plaintiff learned about these meetings, he was already in the process of preparing his application for a promotion to become Captain. 47. The promotion process required Plaintiff to successfully complete a written exam and a subjective assessment. 48. Around July 2018, Plaintiff and approximately seventeen White, male peers took the written exam and all received passing scores. Page 8 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 49. The subjective assessment was proctored by a third-party company. 50. Plaintiff was the only person who took the subjective assessment who did not pass. 51. Plaintiff was surprised that he had not passed the assessment and began asking superiors what he could do to improve his score. 52. Defendant only provided Plaintiff with his raw score from the assessment, which did not identify areas in which Plaintiff needed improvement. 53. Plaintiff approached human resources to ask about his scores, how he could improve, and indicate his concerns that he was the only Black candidate and was the only individual to fail the subjective portion of the exam. 54. Defendant did not provide any explanation for Plaintiff’s failing score. Nor did Defendant investigate Plaintiff’s concerns that he had been discriminated against. 55. Plaintiff planned to retake the exam in or around 2019 and began his studies right away. 56. This time around, Plaintiff was one of two Black candidates. 57. Plaintiff noticed that his White peers received substantial assistance from the current Chiefs in studying for their exam, while he and his Black co-worker received no such assistance, despite requesting it. 58. Plaintiff passed the assessments but did not receive a promotion. Page 9 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 TARGETING AND HARASSMENT 59. In or around 2018, a firefighter approached Plaintiff with a concern about an infamous Captain, Gerard Pahissa, who was bullying and ridiculing other firefighters. Plaintiff knew that Captain Pahissa had been through several demotions, and subsequent promotions. 60. Plaintiff advised the firefighter to bring his concerns to Superior Chief Babcock. 61. Shortly thereafter, on information and belief, Superior Chief Babcock caused Captain Pahissa to be transferred to the same station as Plaintiff in order to harass Plaintiff. 62. Captain Pahissa proceeded to bully, ridicule, and discriminate against Plaintiff because of his race and religion. 63. On one occasion, Captain Pahissa told Plaintiff that “the problem with Black people is that they are lazy” and it is “in their culture to commit crimes.” 64. On another occasion Captain Pahissa insinuated to Plaintiff that he believed Plaintiff celebrated Kwanza. Captain Pahissa proceeded to tell Plaintiff that Kwanza was created by a criminal in an attempt to mock Plaintiff’s religion. When Plaintiff informed Gerard Pahissa he did not celebrate Kwanza, and was of Hebrew faith, Gerard Pahissa proceeded to put stickers on Plaintiff’s locker of the Star of David, menorah, and other Jewish symbols, again mocking Plaintiff’s religion. 65. Captain Pahissa was later fired, but not on the basis of his conduct against Plaintiff. / / / / Page 10 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 66. In or around January of 2021, one of the then Chiefs displayed an old photograph of Plaintiff to Plaintiff’s colleagues. The photograph was taken approximately twenty years ago, without Plaintiff’s knowledge, and depicted him wearing makeup at a charity event for children with Muscular Dystrophy. The photo was shown to Plaintiff’s colleagues in a blatant attempt to ridicule and embarrass Plaintiff. 67. On or about July 22, 2021, Plaintiff was laterally transferred to the position of Fire Marshall Inspector after placing first on the exam. Unlike the Captain’s exam, this exam was done internally. 68. On or about March 2, 2022, Defendant invited Plaintiff to join a Zoom event titled “Black Fire Chief Officers in the PNW.” 69. The event involved discussion among various Black Fire Chiefs in the Pacific Northwest, apparently in an effort to illustrate successful promotion of Black Firefighters outside of Portland. 70. Following the event, Plaintiff learned Defendant would not be making any changes, nor following up with additional leadership mentoring. INSPECTION PRODUCTIVITY AND RETALIATION 71. Plaintiff continued to adequately perform his duties as Fire Marshall Inspector, with continued aspirations of promotion. At the time, he was ranked as the most productive Inspector. 72. Defendant expressed to the Fire Marshall Inspectors that they have a goal to perform 20 inspections per week. Plaintiff consistently exceeded expectations, averaging around 21 inspections per week, while others averaged only 15 inspections per week. Page 11 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 73. In or around January 2022, Assistant Fire Marshal Jason Birch announced productivity measures were changing to follow the “Dawkins Percentage”. On information and belief, the calculation included measure of inspection time, but did not include time spent in preparation for an inspection. As a result, Plaintiff’s productivity was seemingly diminished. 74. On or about May 2, 2022, Plaintiff was instructed to report to Mr. Birch for counseling about Plaintiff’s performance. Mr. Brian Springberg was also in attendance. 75. Mr. Birch questioned Plaintiff about what work Plaintiff performed on specific dates several weeks to several months ago. Plaintiff responded that he could not recall his activities on certain dates without context or details. Mr. Birch told Plaintiff “that is why you’re not a captain.” 76. Plaintiff asked what was meant by that comment and Mr. Birch did not explain. This ended the counseling session. 77. Following this meeting, Mr. Springberg generated a report documenting the counseling session. This report provided that “[i]t was found that [Plaintiff] did not meet the expectations of Portland Fire Inspector productivity levels over the course of [March 1, 2022 to April 21, 2022] and demonstrated poor judgment in the use of [his] time.” Despite this comment, the report clearly indicates that “[t]his counseling session is not discipline...” 78. In December of 2022, Mr. Springberg continued to counsel Plaintiff regarding productivity and inspection reports. Plaintiff felt continuous and disproportionate pressure from Mr. Springberg, Mr. Dawkins, and Mr. Birch to improve his performance. On information and belief, similar counseling and pressure was not taken against other, similarly situated, White, employees. Page 12 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 79. In or around December of 2022, Plaintiff was paired with a mentor, Andy Stevens, with significantly less experience than Plaintiff, as part of a program titled the “City of Portland Mentorship Program.” Despite the mismatch in experience, Plaintiff and Ms. Stevens had a positive relationship. On information and belief, Ms. Stevens actively worked on developing the City of Portland’s non-violent police response project. 80. As Plaintiff’s relationship with Ms. Stevens developed, Plaintiff faced more pressure from Mr. Springberg, Mr. Dawkins, and Mr. Birch, apparently as a result of Plaintiff’s affiliation with a mentorship program intended to increase his leadership potential and for working with a mentor whose work involved non-violent police response, Portland Street Response (PSR). On information and belief, PSR was established in 2020 as part of a measure that diverted funds from police. 81. Throughout this time, Mr. Springberg would require Plaintiff to report to the office when no other individuals were required to do the same. At the same time, Mr. Springberg would pressure Plaintiff to complete more field inspections. These dual requirements were impossible to meet at the same time. 82. As a result, Plaintiff experienced significant stress, loss of sleep, anxiety, and general hardship. 83. On or about February 22, 2023, Plaintiff received an email from Mr. Springberg indicating his research time for inspections would be removed on instruction from Mr. Birch. As a result, Plaintiff’s productivity was again seemingly diminished. / / / / / / Page 13 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 84. On information and belief, the above-described actions by Mr. Springberg, Mr. Dawkins, and Mr. Birch were designed or intended to have the effect of causing Plaintiff emotional distress, creating a hostile work environment and discriminating against Plaintiff on the basis of his race. 85. On or about April 13, 2023, Plaintiff participated in a “Fact-Finding” interview with Professional Standards Manager, Fallon Niedrist De Guzman, on a virtual platform. 86. On information and belief, the Professional Standards Manager is a position outside of the Portland Fire & Rescue that is responsible for intake, investigation, and review of complaints of misconduct both internally and externally to the fire department. Based on conversations with Ms. Niedrist De Guzman, Plaintiff understood her role included investigating and remedying inequities in the fire department. 87. On or around late April and early May, 2023, Plaintiff worked with Jared Laws, another fire inspector, on a presentation regarding the Black Fire Brigade, and work he had done with the non- profit, “Word is Bond.” As Plaintiff increasingly participated in the Black Fire Brigade, he noticed increasing hostility from White management. 88. On or about May 19, 2023, Plaintiff applied for the Path to Leadership Program, which on information and belief is designed to promote selected employees to leadership positions. 89. In and around May and June of 2023, Rose Brock would, about three to four times per month, give Plaintiff an assignment that, upon arrival at the field location, would not be the assignment as described. For instance, Ms. Brock would tell Plaintiff that a business had requested an inspection Page 14 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 and only upon arriving would Plaintiff learn that the business instead simply had a question. As a result, Plaintiff wasted valuable time, and productivity, chasing down false assignments. 90. In or around May 2023 Plaintiff was giving a training at Fire Station No. 2 when then- Battalion Chief Peter Graves asked him about why he was not passing the subjective assessments. 91. Plaintiff expressed that he did not know, and Battalion Chief Graves told him to talk to several women who all gave the same, correct answers on the assessment when Battalion Chief Graves was grading the assessments. 92. Based on this conversation, Plaintiff learned that individuals in positions of power provided some candidates certain key words and phrases to use on the subjective assessments to help them pass; firefighters who were disfavored because of their race, like Plaintiff, were not provided such assistance. Plaintiff brought this issue to human resources as well as to Chief Meyers and Chief Boone. 93. Neither human resources nor Chief Meyers nor Chief Boone did anything to address Plaintiff’s concerns. Plaintiff specifically asked Chief Boone what kinds of key words and phrases successful candidates were expected to use. Chief Boone did not give any information to Plaintiff. 94. Plaintiff subsequently brought his concerns to Ms. Niedrist de Guzman and Equity Manager, Yashica Island. 95. On information and belief, the Equity Manager is responsible for developing and implementing policies and procedures that further the City’s diversity, equity, and inclusion goals as well as supporting employees in making organizational changes. Page 15 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 96. The conversation with Ms. Niedrist de Guzman and Ms. Island included the following: - Ms. Island opened by apologizing for the discriminatory conduct Plaintiff had been through and reported that Plaintiff’s positive attitude was appreciated. - Both managers discussed their former experiences and that of Plaintiff as alleged herein. They represented that they would investigate and propose solutions. They also encouraged Plaintiff to report back any other conduct that he experienced. - At the end, Ms. Island asked what would achieve justice for the experiences that Plaintiff had been through. Plaintiff responded that he never thought his experiences would ever be addressed on account of the systemic nature of the discrimination he had faced and the City’s previous lack of response to his complaints. Ms. Island represented that her and Ms. Niedrist de Guzman thought Plaintiff should be in the position of Division Chief and invited Plaintiff to make additional requests for renumeration. 97. Based on Ms. Niedrist de Guzman’s statements of her intention to investigate claims and statements related to Plaintiff’s potential entitlement to remuneration, Plaintiff believed Ms. Niedrist had the authority, intent, and position to both investigate and remedy Plaintiff’s injury and damages described herein. 98. Plaintiff followed this conversation with a letter to Ms. Niedrist De Guzman that further described the kind of harm he had experienced since working for Defendant. 99. Plaintiff also followed this conversation with an email dated April 27, 2023 where he detailed additional conduct including: (1) threatened counseling from the union president as a result of Plaintiff’s raising of complaints during the pandemic; (2) the meeting of several Captains to discuss the rising number of minorities due for promotion; and (3) the sharing of the photo of Plaintiff in an Page 16 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 attempt to embarrass him. Ms. Niedrist de Guzman responded by again indicating that she was “investigat[ing] [Plaintiff’s] complaint.” 100. In an email response to Plaintiff dated May 25, 2023, Ms. Niedrist de Guzman represented to Plaintiff that she was in a position to “facilitate change to overcome [unfavorable] outcomes for [Defendant’s] Black employees,” that she and other employees would “work on talking with the employees [Plaintiff] identified about the promotional process and come up with some solutions to recommend to management about how to improve the process for [Defendant’s] Black employees,” and that “[she] would like to help fix the[] harms and make sure they don’t happen going forward.” She also asked to confirm that her approach “match[ed] what [Plaintiff was] looking for in terms of remedies to the harms [he] identified.” 101. On or about June 5, 2023, Plaintiff received an email from Defendant’s employee Terrol Johnson indicating that he was eligible for the 2023/2024 Path to Leadership Cohort and that his application was in the process of being reviewed. 102. On or about June 12, 2023, Plaintiff received an email from Ms. Niedrist de Guzman indicating that her and Ms. Island "...plan on scheduling meetings with [Plaintiff] and the individuals [Plaintiff] identified to hear [Plaintiff’s] concerns and come up with recommendations on how to address them.” 103. In or around June 28, 2023, Plaintiff received a letter from Ms. Niedrist de Guzman, acknowledging that “rule violations have occurred” in regard to Mr. Birch’s behavior and treatment of Plaintiff, but indicating that her investigation would be closed and no further action would be taken. This letter came as a surprise when, up until that point, Ms. Niedrist de Guzman and Ms. Island repeatedly represented to Plaintiff that his claims would be investigated and remedied. Page 17 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 104. Although Ms. Niedrist De Guzman represented that Plaintiff’s concerns were to be investigated, on information and belief, Defendant did not take any action to resolve Plaintiff’s concerns. 105. Following Plaintiff’s conversations and meetings with Ms. Niedrist De Guzman and Ms. Island, Plaintiff learned from another firefighter that Senior Inspector Rose Brock had told other firefighters that Ms. Brock and Mr. Birch were intentionally targeting Plaintiff for differential treatment. 106. Throughout this time period, Plaintiff continued to experience pressure from Mr. Springberg to both be present in the office, and complete additional inspections. As a result, Plaintiff continued to experience stress, loss of sleep, anxiety, and general hardship. 107. On August 3, 2023, Plaintiff was denied from the Path to Leadership Program. On information and belief, the individuals who were accepted had significantly less experience working for Defendant than Plaintiff. ACTIONABLE PERIOD 108. On or about January 3, 2024, Plaintiff sent an email to Assistant Fire Marshall Michael Silva indicating that he had “...serious concerns about being targeted by a few seniors. One of which admitted to coming after [Plaintiff] to another inspector and the other admitted to targeting another inspector based on their protected status.” Plaintiff continued to indicate his concerns to Mr. Silva in emails dated: February 13, 2024; April 3, 2024; and April 4, 2024. 109. Each supervisor had a duty to report his complaints under HRAR 2.02. Page 18 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 110. On information and belief, despite Plaintiff’s repeated complaints, Defendant failed to investigate or take any corrective action. 111. In or around January 2024, Plaintiff attended a professional development meeting where the topic was successful completion of assessments. 112. Deputy Chief Wendy Stanley advised the attendees to seek feedback on their assessments and provided examples of specific pieces of feedback she received. 113. Based on the presentation by Ms. Stanley, Plaintiff realized that feedback on the assessments was broadly available to White individuals and he was specifically denied the same treatment. 114. Being Plaintiff’s senior and on information and belief, Ms. Stanley had access to Plaintiff’s schedule. 115. During times when Plaintiff would be away from his email, such as during a class, Ms. Stanley would repeatedly email Plaintiff tasks and assignments, or other questions. On information and belief, the amount of requests made of Plaintiff were extraordinary in comparison with his peers. 116. For example, on or about February 13, 2024, Ms. Stanley sent approximately twenty emails that contained the same, or similar, set of copied and pasted instructions. At the time, Plaintiff was attending a class. / / / / / / / / / Page 19 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 117. On information and belief, Ms. Stanley would harp on mistakes made by Plaintiff in an effort to make him look bad in comparison to his peers. On information and belief, Plaintiff’s peers did not receive the same feedback despite producing similar work product. 118. Ms. Stanley’s conduct as alleged above would occur approximately once per week. 119. On or about September 15, 2024 Ms. Stanley asked Plaintiff if all of his children belonged to his wife, or if he had multiple “baby mamas.” Plaintiff was shocked and offended by this question. Ms. Stanley asked this question of Plaintiff in an intentional effort to cause Plaintiff emotional distress and treat Plaintiff differently on the basis of his race. 120. On December 24, 2024, Plaintiff again participated in a Senior Fire Inspector assessment. 121. The Senior Fire Inspector assessment presented five (5) to seven (7) hypothetical “problems,” some of which were modeled off Plaintiff. Each hypothetical problem was generated by Portland Fire’s leadership for the test and were based on real employees of Defendant. Defendant curated the problems with enough specificity such that each individual described in the hypothetical could be readily identified by the employees taking the test. Notably, the individuals on whom the hypotheticals were based were actual Black firefighters within Defendant’s fire department. The hypotheticals portrayed these individuals as “problems” that needed to be addressed by leadership. Accordingly, white firefighters who took the test recognized the hypothetical problem employees as obviously based on their Black colleagues. Black firefighters who took the test recognized themselves portrayed in a negative light in the test. 122. The effect of the foregoing was to condition the culture and perception of the white Page 20 – THIRD AMENDED COMPLAINT AND JURY TRIAL DEMAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MCKEAN SMITH LLC 1140 SW 11 th Ave Ste 500 Portland, OR 97205 P: 503.567.7967 F: 503.765.7443 firefighters to see the Black firefighters in a negative light. The effect on the Black firefighters was to interfere with their test-taking and to diminish their performance to the extent they were explicitly targeted and portrayed negatively. The net effect and intention of Defendant’s intentional manipulation of the test was to prevent and obstruct Plaintiff’s advancement within the department by influencing his test scores in an improper fashion. Portland Fire knew or had reason to know that racial bias influenced IOS testing service materials and results, yet continued to use IOS testing service. 123. Jason Birch created the hypotheticals based off actual employees and their conduct including Plaintiff. 124. Plaintiff is entitled to an award of costs and attorney fees pursuant to ORS 659A.885 and/or ORS 20.107. FIRST CLAIM FOR RELIEF Violations of ORS 659.030- Discrimination 125. Plaintiff realleges and incorporates each foregoing paragraph as if set forth fully herein. 126. Plaintiff is a member of a protected class and at all material times was fully qualified to perform the duties associated with his job. 127. In perpetuating the actions described in the above paragraphs, Defendant subjected Plaintiff to racial discrimination in the workplace in that Defendants subjected Plaintiff to disparate treatment, different terms and conditions of employment, unwelcome conduct, a hostile work environment, refusing to remove Plaintiff from a hostile work environment, and interfering with Plaintiff’s career advancement and opportunities because of his race.