By Emily Nelson
In Brownfield v. City of Yakima, the Washington Court of Appeals, Division III, found that Yakima police officer Oscar Brownfield, fired for insubordination in 2007, failed to support his claim that he was actually fired because of a disability. The Court held that his refusal to submit to a fitness for duty examination, not the disability that led to the examination requested was the proximate cause of the discharge.
Brownfield suffered a head injury in an off-duty rollover car accident. As a result of the injury, he began to suffer from anxiety, frustration, impatience, and impulsivity, later diagnosed as a mood disorder. Brownfield returned to unrestricted duty and was transferred the Community Services Division of the police department. Brownfield initially did well in the position.
However, Brownfield started having conflict with his co-worker and immediate supervisor, and made several complaints against them. The department investigated the complaints and found no wrongdoing, but before the investigation was complete, Brownfield was suspended and disciplined for insubordination after swearing at a superior officer attempting to mediate the dispute. Brownfield was transferred back to the patrol unit at his request, but received more complaints against him after he made verbal threats to a female officer, and suffered an apparent panic attack on patrol.
After other employees reported that Brownfield had expressed feelings of “hopelessness” and depression related to his ongoing divorce, Brownfield was ordered to undergo a fitness for duty examination. Brownfield saw two psychiatrists, who disagreed as to the cause of his symptoms and whether or not he could ever return to unrestricted duty. While he was undergoing a third fitness for duty evaluation with another doctor, Brownfield notified Yakima’s City Manager that he would no longer participate in the process. The City Manager sent Brownfield a letter ordering Brownfield to comply, but he refused. The next day, the City of Yakima started termination proceedings, and fired Brownfield for insubordination.
Brownfield brought suit in Yakima County Superior Court claiming, among other things, that the City violated the Washington Law Against Discrimination (WLAD) in firing him. Brownfield alleged that the reason the City gave for firing him (insubordination) was pretext and that he was actually fired because of a disability—namely, his mental and psychological health problems.
Unfortunately, the Court held that no rational jury could find that the nondiscriminatory reason the City gave for firing Brownfield—insubordination—was pretextual. The Court of Appeals noted:
‘A plaintiff cannot create a pretext issue without some evidence that the articulated reason for the employment decision is unworthy of belief.’ ‘To do this, a plaintiff must show, for example, that the reason has no basis in fact, it was not really a motivating factor for the decision, it lacks a temporal connection to the decision or was not a motivating factor in employment decisions for other employees in the same circumstances.’
On appeal, Jeff Brownfield does not suggest that any of these pretextual factors are present, let alone contend that the firing for insubordination was pretextual . . . The firing of Jeff Brownfield came immediately after he refused an order from City Manager Dick Zais to complete an important and valid examination to determine his psychological fitness for duty. Brownfield provides no evidence of Zais treating anyone dissimilarly from him….
Editor’s Note (Jim Cline): This is the second of two lawsuits brought by Brownfield. Brownfield previously lost on related federal claims in the 9th Circuit. This lawsuit was one of many that the City of Yakima faced during and following the controversial (and ultimately very expensive) tenure of former police Chief Sam Granato.
While Brownfield may have had a legitimate basis for his whistleblowing activities, his failure to comply with a request to submit to an order for a fitness examination led to his firing. His attorney claimed then (and again later in several unsuccessful rounds of court action) that the order was illegal. Given that Dr. Norman Mar, the Association retained psychologist, had previously indicated that Brownfield was at least temporarily unfit (and then later cleared him for service when he believed his condition had improved), it has always been mysterious why Brownfield’s personal attorney concluded that a confirming examination from the City’s psychologist was illegal
We have said that if an order is in fact illegal, an officer is not insubordinate by refusing to comply with it. But, we have also said, many times, that before you determine not to follow an order that you believe to be legal, you better verify that you are correct.
