Federal Court Enters $200,000 Judgment Against Old Dominion University in Favor of White Police Officer Alleging Reverse Race Discrimination
A federal court in Virginia has entered a $200,000 judgment against Old Dominion University in favor of Brett Birkmeyer, a white former police officer in the predominantly black ODU Police Department, who sued ODU claiming he was fired by ODU because he is white and because he complained to ODU officials that he and other white employees in the ODU Police Department were being subjected to race discrimination.
Birkmeyer, who is white, was employed as a police officer in the predominantly black Old Dominion University Police Department. He believed he was being subjected to racial discrimination and harassment by a black lieutenant in the ODU Police Department, and so, during a one-week vacation, he went to the ODU Chief of Police and informed the Chief of his concerns. The Chief of Police, according to Birkmeyer, did nothing to investigate his concerns, and instead just asked the accused lieutenant if Birkmeyer’s concerns were valid and immediately accepted her assertion that they were not.
Birkmeyer next went to the ODU Office of Equal Opportunity and Affirmative Action. He met there with a black employee, who had the same last name as the lieutenant who was the subject of his complaints, and explained his concerns to her. Birkmeyer alleges she informed him that there was nothing she could do, because it was a complaint about a supervisor and therefore should be handled by the ODU Human Resources Department rather than EEO/AA. According to Birkmeyer, the EEO/AA employee did nothing to investigate Birkmeyer’s complaints but, when Birkmeyer left EEO/AA to go to HR, she called the accused employee and informed her of Birkmeyer’s allegations.
Birkmeyer states that he then went to the ODU Human Resources Department, where he again explained his concerns. According to Birkmeyer, the HR Department employee said there was nothing the HR Department could do, because Birkmeyer's complaints involved race discrimination and therefore should be handled by EEO/AA rather than by HR. Birkmeyer alleges the HR employee also did nothing to investigate Birkmeyer’s complaints.
A few days later, Birkmeyer returned from vacation and resumed his duties on the midnight shift, along with his patrol sergeant, who also was white. Birkmeyer alleges that, unbeknownst to Birkmeyer and his sergeant at that time, a black ODU detective, who reported to the black lieutenant Birkmeyer was complaining about, was engaged in covert surveillance of them from his unmarked police car across the street. The detective, at a later grievance hearing in Birkmeyer's case, testified under oath that no one in the ODU Police Department had ever before engaged in surveillance of another ODU police officer, and that he had not been authorized to conduct such surveillance, but that, because he was concerned about a recent outbreak of vehicle break-ins, he was sitting in the police vehicle parked in an ODU parking lot at midnight across the street from Birkmeyer and his sergeant. According to Birkmeyer, however, the incident reports maintained by the ODU Police Department established there was no such outbreak, and a state Administrative Hearing Officer hearing Birkmeyer’s grievance expressly found the detective was not credible.
One of Birkmeyer’s duties was to conduct “building checks” of certain ODU buildings. Because by midnight the buildings at ODU were locked down for the night and have alarms, the normal practice was for police officers on the midnight shift to visually inspect the buildings by driving around them rather than, as was the practice during the early evening hours, inspecting the buildings on foot. On the night of the surveillance, Birkmeyer, as was normal and as he was trained to do, called in his building checks after visually inspecting the buildings from his police cruiser. The detective, while observing Birkmeyer and his sergeant from his police vehicle, heard Birkmeyer call in a building check over the police radio and, based upon that, the detective the next morning filed a report accusing Birkmeyer of falsifying police records. The detective also filed a report against Birkmeyer’s white sergeant, who was parked in her police cruiser next to Birkmeyer on the night in question. According to Birkmeyer the sergeant, after observing the detective that night and discovering he was surveillance her, engaged in a heated conversation with the detective in which she told him the ODU Police Department was “pro black” and discriminated against whites, and in which she, referring to Birkmeyer’s complaints to EEO/AA and HR, told the detective that the department was “about to have its ass handed to it.” Based upon the detective’s reports, a male black lieutenant in the ODU police department (there were two lieutenants in the ODU Police Department at the time; one was the black female who was the subject of Birkmeyer’s complaints, and to who the detective reported, and the other was a black male whom Birkmeyer reported) initiated disciplinary proceedings to terminate Birkmeyer and his sergeant.
The black male lieutenant and the black Assistant Police Chief conducted videotaped interviews of the detective, Birkmeyer, Birkmeyer’s sergeant, and the dispatcher on duty the night in question. During the sergeant’s videotaped interview, the lieutenant tells the sergeant that the only reason the charges against her had not been dropped was that she accused the ODU Police Department of being “pro black.” He stated that, but for that, “the whole thing would have been forgotten.” Birkmeyer claimed that this videotape established that the white sergeant was being fired solely in retaliation for opposing race discrimination. The sergeant recalls that, during the taping, she noticed the Assistant Police Chief appeared visibly distress when the lieutenant made that admission, presumably because he was aware that the lieutenant’s admission had been caught on camera. Later in the videotape, the videotape suddenly cuts out for a few second and then starts back at a point that appears to be several minutes later in the conversation. Although ODU denies tampering with the tape to cut out potentially damaging further comments by the lieutenant, according to Birmeyer ODU offered no credible explanation for the gap in the tape.
A few days later (in March 2005), the sergeant resigned under threat of termination. Birkmeyer, however, would not resign, and was fired. Birkmeyer then filed a grievance, challenging his termination as being the result of race discrimination and retaliation as well as being unjustified. After two evidentiary hearings by Carl Schmidt, an Administrative Hearing Officer appointed by the Virginia Department of Employment Dispute Resolution (EDR), Judge Schmidt ruled in favor of Birkmeyer. Judge Schmidt expressly ruled that ODU’s termination of Birkmeyer not only was unjustified, but also was the product of race discrimination against Birkmeyer because he was white. Judge Schmidt ordered ODU to reinstate Birkmeyer will full backpay, seniority and benefits, but ODU refused. ODU appealed the ruling to the Virginia Department of Employment Dispute Resolution, but EDR upheld Judge Schmidt’s decision. ODU also appealed Judge Schmidt’s ruling to the Virginia Department of Human Resources Management, but that agency also refused to disturb Judge Schmidt’s decision. ODU then appealed the ruling to the Norfolk Circuit Court, but the Norfolk Circuit Court likewise upheld the decision against ODU. ODU, however, continued to refuse to reinstate Birkmeyer, and continued to deny any wrongdoing.
During the grievance proceedings, Birkmeyer also filed a charge of discrimination with the United States Equal Employment Opportunity Commission, alleging race discrimination, racial harassment and retaliation. After a lengthy investigation, the EEOC issued a written decision in which it found ODU guilty of illegal race discrimination, racial harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. ODU, however, continued to refuse to reinstate Birkmeyer, and continued to deny any wrongdoing.
The EEOC referred the case to the United States Department of Justice, which authorized Birkmeyer to sue ODU. Birkmeyer then filed a Title VII lawsuit in the federal court in Norfolk, Virginia, which was consolidated with another federal lawsuit Birkmeyer had filed against ODU and certain ODU officials for terminating Birkmeyer in violation of his federal constitutional rights.
Birkmeyer’s federal lawsuits against ODU were scheduled to be tried before a jury in the Norfolk federal court on April 16, 2008. In March, 2008, however, ODU agreed to allow the federal court to enter a judgment against it in the amount of $200,000. On March 14, 2008, an order was entered by the United Stated District Court for the Eastern District of Virginia, Norfolk Division, giving Birkmeyer judgment against Old Dominion University in that amount, and cancelling the upcoming jury trial.
ODU now has paid the $200,000 judgment. ODU also has rescinded Birkmeyer’s termination, although Birkmeyer, for obvious reasons, has no desire to return to Old Dominion University. ODU, however, continues to deny any wrongdoing.
Interestingly, Rosann Runte, the President of Old Dominion University at the time Birkmeyer was terminated and throughout the grievance hearings, the EEOC investigation, and the federal litigation, has resigned to accept employment elsewhere. It is not known whether her departure is related to the Birkmeyer debacle.
Birkmeyer is represented by attorney Raymond L. Hogge, Jr. of Norfolk, Virginia. For additional information, contact him at:
Raymond L. Hogge, Jr.
Ray Hogge & Associates, PLC
999 Waterside Drive, Suite 1313
Norfolk, Virginia 23510
Tel: (757) 061-5400
Fax: (757) 962-5979
Cell: (757) 650-3307
Raymond L. Hogge, Jr.