Legal Series - Constructive Discharge

Question: My Fire Department is trying to fire me or force me into resignation with unfounded charges, frequent transfers to other Divisions and other similar harassment behavior. I am a Battalion Chief, caucasian male and 54 years old. I want to retire when I am 62 and I am not sure I will be able to do that. What can I do?

Answer: There seems to be a recent trend with fire departments forcing older firefighters out of the department with a series of discipline challenges, fabricated charges, internal investigations and frequent assignments or transfers to other divisions within their department.

The employer has the right to manage the department and the courts are reluctant to interfere in the management of a fire department as seen in many cases brought before the courts. Management also has the right and obligation to investigate any internal and external claims of wrongdoing by members of the organization and to protect those employees. The employer cannot harass and discriminate against its employees. Harassment is defined as the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. The purposes may vary, including racial prejudice, personal malice; an attempt to force someone to quit a job or grant sexual favors; or merely gain sadistic pleasure from making someone fearful or anxious. Such activities may be the basis for a lawsuit if due to discrimination based on race or sex. The employer can fire you for documented and legitimate reasons and those reasons cannot be discriminatory. Discrimination includes: your age, disability, race, religion, national origin, marital status and other similar issues.

Employees also have certain rights against harassment, bullying, discrimination and other aggressive behavior on the part of an employee or the employer.

What we are beginning to see is a systematic pattern of harassment of a firefighter by another firefighter or fire officer which may subject the employer to a lawsuit for failure to protect the targeted firefighter whose purpose is to drive you from the department.

Some examples are the overzealous charging of a firefighter with various policy violations and applying the maximum penalty and not following a progressive discipline process. The employer jumps to suspension, demotion or termination and not starting the discipline process with a verbal warning or verbal warning with documentation. Such egregious behavior on the part of the employer may create a hostile work place and the firefighter, although complaining about the behavior, may be powerless to stop that particular behavior. Such harassing behavior may cause the firefighter to quit the department. Self-termination under such conditions is described as constructive discharge and defined as when the firefighter quits due as a result of increasingly intolerable work conditions created by the employer that would be beyond the limits of any reasonable firefighter to endure. This may the basis for a discrimination, harassment or other wrongful termination lawsuit. A good example is: Noah v. Los Alamos County Fire Department.1:13 – cv 00526. This case had a plethora of charges against the department and individuals in the department with Noah alleging constructive discharge, violations of the New Mexico Human Rights Act, destruction of evidence (spoliation) for the destruction of the memory card, sex discrimination and harassment under Title VII of the Civil Rights Act of 1964, due process and equal protection violations, and conspiracy to violate her civil rights

When you are faced with this situation it is recommended that the aggrieved employee do the following: take a pulse of your behavior as your actions may be the cause of the increased scrutiny by your employer; look at the source of those complaints as you may have gotten on another firefighters “list” that they want you out of the department based on some fabricated charges. This “mean firefighter” action is difficult to challenge due to the personality involved is probably hard to deal with anyway and any confrontation of the firefighter just will result in increasing the harassment action against you. If you are part of a labor group, get the labor group involved in your protection against the harassing behavior. As strange as it seems, there are labor groups that actually are supporting this behavior against you and will not step in to protecting you: tacitly condoning this behavior. If all of the self-help remedies are not working, the firefighter must complain directly to the employer reporting the harassing behavior which may lead to a constructive discharge environment. You may consider filing a complaint with the Equal Opportunity Commission. See: (http://www.eeoc.gov/employees/howtofile.cfm). Remember, not all claims are accepted by the EEOC and that also presents a conundrum to the aggrieved firefighter.

There are no easy solutions in managing and resolving a concerted effort by certain firefighters or employers when they see the need for you to retire early. Your best protection is to do your job correctly, use the Labor group to protect your interests, file a complaint with the department and obtain the advice of a good employment law attorney.

 Endnotes:        Black’s Law Dictionary

                        Noah v. Los Alamos County Fire Department.1:13 – cv 00526

 For more information on this topic please contact me at 206-940-6502 or at john@murphylawgroup.org

John K. Murphy JD, MS, PA-C, EFO, Deputy Fire Chief (Ret), has been a member of the career fire service since 1974, beginning his career as a firefighter & paramedic and retiring in 2007 as a Deputy Fire Chief and Chief Training Officer. He is a licensed attorney in Washington State and in New York and is a licensed Physician’s Assistant in Washington State. Mr. Murphy consults with fire departments and other public and private entities on operational risk management, response litigation, employment policy and practices liability, personal management, labor contracts, internal investigations and discipline, and personal injury litigation. He serves as an expert witness involving fire department litigation and has been involved in numerous cases across the country. He is a frequent Legal contributor to Fire Engineering Magazine, participant in Fire Service Court Blog Radio, curator of the Fire Engineering Policy Bank, NFA Instructor and a national speaker on fire service legal issues.