Preventing Legal Fires 2018 - Year in Review

I always like to review year end legal issues for the fire service, even as I routinely write about them, as an interesting study in firefighter legal behavior over the past year. It is a reflection of where we are and where we are going. The short story is our behavior is not changing as fast as the fire service would like as we still see complaints and litigation popping up every week.

We continue to see patterns of bad legal behavior, in spite of the frequent lectures and articles written by my cohort attorneys, Pinsky, Varone and Comstock, the fire services continue to wallow in the muck and mire of legal jeopardy.

During my Preventing Legal Fires and Legal Jeopardy lectures affecting the fire service, I discuss the importance of not violating established Constitutional, Federal or state law protections the fire Department has an obligation to uphold. I believe the fire Department as the institutional form of our collective personalities by in large does the honorable thing by respecting the rights and privileges of our firefighters and the community we protect. Remembering, the fire service is a homogenous group of primarily white men, that is ripe for these types of legal conflict. The culture of the organization needs to change to prevent many of the lawsuits affecting the fire service.

Unfortunately, we have a history of suing each other and a majority of the largest lawsuits with large payouts to the aggrieved firefighter involve our own people in the form of harassment, discrimination, bullying and violations of Constitutional protections under the Civil Rights Acts and its sub parts to include Age Discrimination under ADEA, Pregnancy Discrimination under PDA, rights to return to work after military deployment under USERRA, Gender or Sex Discrimination, pay under FLSA, family leave under FMLA including gender identity or transgender status under the Civil Rights Act, Title VII and other violations of the law. These claims against the department costing our industry millions of dollars in settlement claims or court decisions and polarizes the members of that particular fire department.

Much of Preventing Legal Fires has to do with the creation and enforcement of your department policies preventing such behavior. “If only” is an often heard statement when the department is sued for violating its own policies or trying to sweep bad behavior “under the rug.” “If only" we had acted sooner, “if only" we listened to that firefighter or “if only" we had a policy”. Create your “if only” statements and fix the issue.

Let’s look at a few cases from 2018:

Discrimination refers to the treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit.

• Such a case in Kennewick (WA) involves both discrimination and retaliation. The firefighter sued the city and several Kennewick Fire Department supervisors, claiming she was unfairly passed over for promotion and that her complaints about working conditions were ignored. She was hired in 2004, alleging that she became the target of offensive acts, behavior and comments because she’s a woman. She said the behavior began about two years after she started working for Kennewick as one of two female firefighters at the time. She also filed a second lawsuit claiming the city withheld records she believes would show a pattern of gender discrimination within the department and settles for $600,000.00 and resigns from her job.

• In Cook County Illinois, a jury awarded a female firefighter over $11 million in her sexual harassment lawsuit against her former department after filing a lawsuit against Country Club Hills for gender discrimination, sexual harassment and retaliation. She was a long term employee of the department starting work for the fire department there in 1998 and has been on paid administrative leave since 2015. See Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004).

• In a case of reverse discrimination, a white firefighter in Mississippi filed a discrimination lawsuit against city officials claiming he was passed over for a job despite being the only certified firefighter among four candidates who were black firefighters. The lawsuit also says that the black selectmen referenced a “quota system,” in which city officials tried to balance out the number of black and white firefighters by hiring more black applicants despite their qualifications. See Davis v. West Point

Sexual Harassment is defined as behavior characterized by the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation. Your department must have a Policy related to the prevention of harassment in all forms to include a Code of Conduct for your firefighters.

• The Colorado River Fire Rescue is facing a sexual harassment suit by a female firefighter who claims she was harassed virtually her entire ten-year career. The firefighter naming the Colorado River Fire Rescue as the defendant to include accusations a number of male firefighters committing an assortment of acts, including: changing the background screen on her computer from a picture of her family to pornography; telling her women do not belong in the fire service; sexually explicit comments and conduct and one firefighter assaulted her during a training exercise. She claims she reported the misconduct to ranking officers but the members were either not punished, not punished adequately, or only punished after she filed a complaint with the EEOC. She also claims that she was passed over for promotion and denied training opportunities on account of her gender and/or because she previously reported sexually harassing behavior (retaliations). There were three charges including: sexual harassment, sexual discrimination and retaliation, all under Title VII of the Civil Rights Act of 1964.

• In Washington State, two women firefighters are suing South Kitsap Fire and Rescue, alleging sexual harassment by a battalion chief who retired in January 2017 after the district notified him the fire chief was proposing his termination. An internal investigation found the former Battalion Chief made inappropriate and degrading remarks and actions toward the women – at times repeating them to others – and once made sexually-charged comments in front of one of the women’s children.

• In San Francisco, the Board of Supervisors approved a $575,000 settlement of a sexual harassment lawsuit filed by firefighter Suzanne Montes, who alleged she faced repeated harassment at Chinatown Station 2 where she was assigned. She was only the sixth female to serve on a truck in the San Francisco Fire Department, according to the lawsuit filed in May 2017. “Many of her co-workers at Station 2 were opposed to a female being assigned to the position and started a campaign of harassment aimed at forcing her to leave the station,” said the lawsuit. “She was ostracized, constantly degraded, and had feces spread in her bathroom. She crawled into her bed to sleep one night only to find that one of her co-workers had urinated in her bed.”

Pregnancy discrimination - Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). The fire service is not the only profession violating the PDA. Whether women work at Walmart, Wall Street or the fire service, getting pregnant is often the moment they are knocked off the professional ladder and many times terminated. Throughout the U.S. workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother.

• Chicago Fire and the City has agreed to settle a lawsuit brought by a fire department paramedic over how she was treated during her pregnancy and while nursing. In violation of the PDA: learning of her pregnancy, she was placed on leave, requiring her to exhaust nearly all of her available sick leave time even though she could have continued working with accommodations; when she returned to work after childbirth, CFD denied her requests for breaks to express breast milk on her first day back, causing her pain and humiliation when she leaked through her shirt in front of her colleagues; the department denied her access to private, non-restroom space for pumping, requiring her to express breast milk in dirty firehouse restrooms for several months, and retaliated against her for complaining about CFD’s violations of the law.

• In Tampa (FL) Firefighter Tanja Vidovic’s career as a Tampa firefighter was cut short when she says she officially complained about being harassed on the job. "As soon as I came forward as being pregnant she was harassed and after complaining was fired. The mother of three sued the City of Tampa awarded a $245 thousand dollar settlement federal court and through court action was reinstated to her job.

• A great case to review for PDA discrimination is the outcome in Davie Florida fire department where the Department of Justice (DOJ) became involved in a pregnancy discrimination and retaliation claim. See https://www.justice.gov/iso/opa/resources/9792012621175626541417.pdf

Embezzlement - is a premeditated methodical crime with precautions to conceal the criminal conversion of the property occurring without the knowledge or consent of the affected department or person. Often it involves the trusted individual embezzling only a small proportion of the total of the funds or resources they receive or control, in an attempt to minimize the risk of the detection of the misallocation of the funds or resources. We are seeing this action in small to medium sized departments involving Fire Chiefs or treasurers with sole control of the money.

The charge of embezzlement consists of four factors: 1) there must be a fiduciary relationship between the two parties; i.e. there must be a reliance by one party on the other like the fire chief or treasurer of the fire organization given responsibility for the money. 2) The fire chief or treasurer must have acquired the property through the business relationship of the fire department. 3) The fire chief or others must have taken ownership of the property or transferred the property to someone else or for personal use, and 4) the actions were intentional. Thanks to Curt Varone’s Fire Law Blog, here are a few of the numerous events of embezzlement occurring every year.

• Former Akron IAFF Local 330 treasurer Joseph Ruhlin, 41, was sentenced to two years in prison for stealing an estimated $500,000.

• A Pennsylvania firefighter John Montgomery age 76 has been charged with stealing $140,000 from the Castle Shannon Volunteer Fire Department and was arraigned on two felony counts of theft and two misdemeanor counts of misappropriation of funds.

• A part-time administrative assistant, Kristie L. Howard, for the Falls Township Fire Department pled guilty to stealing more than half-a-million dollars from the fire department and pled guilty to felony counts of theft, telecommunication fraud, and eight counts of forgery.

• Here are some simple prevention methods contained in this article: https://community.fireengineering.com/profiles/blog/show?id=1219672...

Social Media and First Amendment Rights. Yikes, we are here again reporting on the numerous social media career suicides committed by our very own firefighters. Yes, there is a First Amendment Right to speak your mind. However there is a limitation for firefighters free speech related to their jobs and as firefighters. Not all speech is free in the fire service and most of the entries are because there is no self-discipline on your social media sites. The test to determine if your speech is protected under the 1st Amendment, the courts turn to the Pickering Test (Pickering v. Board of Education, 391 U.S. 563 (1968). The test applied to free speech by government employees is: 1) the firefighter must be addressing a matter of public concern, 2) the speech must not interfere with the employee’s job duties, and 3) the firefighter must be speaking as a private citizen. Each 1st Amendment case is unique depending on the factors contained in your speech or rights to post on your social media. Your department must have a policy on social media, and there are a number of them available at Lexipol, VFIS, your attorney or other sites available to fire department administrators.
See: https://www.lexipol.com/resources/blog/firefighters-and-social-medi....

• Fire Chief of Cannon Beach (Ore) fired for wife’s social media postings criticizing the Fire District Board

• A Boston firefighter posting a cartoon image of a muscular black man carrying the severed head of a white man, has been terminated

• Three Columbia (SC) firefighters and a paramedic have been fired over things they posted on social media about a Black Lives Matter protest. With some of the protesters blocked a street at one point, Columbia Fire Department Capt. Jimmy Morris posted on Facebook, "Idiots shutting down I-126. Better not be there when I get off work or there is gonna be some run over dumb a****."

• These few examples of the tip of the iceberg when it comes to terminations related to social media. Every day it seems one of our firefighters loses their job over a moment of irritation broadcast over their social media sites. 

Volunteer Firefighters are an important part of the Nation’s fire service where over 55% of the fire service provided is provided by volunteers. What is their status as “employees” and are they subject to discipline and litigation? The “employment” status of volunteer firefighters are defined by state and federal law’s related to volunteers in general. In the purest sense, “volunteers are volunteers”. See (https://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp) however there are always exceptions to the rule.

• In Mendel v. City of Gibraltar (6th Cir, Aug 2013), the court determined that "volunteer" firefighters who receive $15 per hour are employees for purposes of federal employment laws. In the case, the plaintiff dispatcher, brought a civil action against Defendant city alleging violations of the Family Medical Leave Act (FMLA). On appeal, the decisive issue in the case was whether so-called volunteer firefighters were actually employees as defined by the FMLA and the Fair Labor Standards Act (FLSA). If the firefighters were employees, then the city employed more than 50 individuals and was required to provide Plaintiff benefits under the FMLA.

• One would look to the Supreme Court’s broad "economic reality" test and looked at a variety of factors in determining whether the firefighters were employees. Among other things, the court considered that: The firefighters were required to complete training on their own time without compensation; They were not required to respond to any call; When they did respond, they were paid $15 per hour for the time they spent; The city kept personnel files on the firefighters; and The city could discharge or promote the firefighters. Please check with your attorney on this question of “are volunteers employees” for your department.

• An interesting case from Washington State, the City of Lynden has agreed to a $250,000 settlement in a lawsuit by a volunteer firefighter accusing the City and its assistant fire chief of discrimination and creating a hostile work environment. Damon Winters, a volunteer firefighter, filed the lawsuit against the city and Assistant Chief Robert Spinner in 2016. Winters, who was born in Egypt, also holds citizenship in Canada. He became a U.S. citizen in March 2016. After a series of illegal activities on the part of the department such as a selection for an open full time position, rescinded the offer due to his lack of U.S. citizenship at the time made him ineligible. Winters was again denied a full-time position after a second offer. The part-time position Winters had was also eliminated. The city and AC Spinner, said the position was temporary which was contrary to Winters understanding of the position. After notifying the city of his discrimination claims he additionally claimed he was wrongfully denied a job and the complaint also called into question Spinner’s conduct. For example: Spinner “has a history and pattern of ignoring, manipulating, bending and breaking” hiring policies to select firefighters he personally wants to hire; Spinner is “perceived by coworkers as a deeply racist man;” Spinner has made “highly inappropriate” comments about black people, Mexicans, women and members of the LGBT community; Spinner “routinely” belittled Winters, and called him a “terrorist;” Spinner often complained that Winters “stinks up” the station’s kitchen with “ethnic food,” even though Winters cooked the same or similar food as the other firefighters; and Spinner said Winters’ “life would really be miserable around here” if he was given a full-time position. The City approved the settlement, Winters remains as a volunteer and Chief Spinner was to be promoted to the Fire Chief’s position after the retirement of the Fire Chief. Unfortunately Chief Spinner died from a heart attack soon after being placed in the interim fire chief’s position.

Finally:

Although not in the legal category and wearing a few professional hats, suicides and cancers are taking a number of firefighters in addition to the steady state of heart attacks per year. Being married to a psychologist, I become very aware of the issues of stress and depression facing firefighters from on and off the job trauma. Balancing our professional life and personal life takes a toll on our personnel and there is no shame in asking from help. I urge firefighters to examine their own stressors and seek help from internal resources such as EAP or peer support groups, or find a qualified mental health practitioner to help you through your crisis. Even when we can see our fellow firefighters in crisis, please step in and intervene in that crisis by offering assistance and support.

As a health care practitioner (my other hat) there is an increasing incidence of cancers in the firefighters. Are the numbers actually greater, or is there an increased awareness that cancers are killing us? I believe it is the latter, but none the less, take care of yourself. You will need to provide adequate documentation of your exposures and developing cancers even if you live in a presumptive illness covered state as each case is unique and scrutinized by your third party claim managers or your state industrial insurance providers.

Decon, shower, wash your hands, wear your protective clothing, breath no smoke or contaminates in post-fire overhaul, and most of all, get periodic checkups from your physician. Any lumps, bumps, coughs, swelling of body parts or unusual moles or lesions need to be examined and cancers ruled out. Periodic colonoscopies, PSA tests and prostate examinations, breast examinations and pelvic examination for female firefighters are a must to ensure your continuing health. Exercise, eat healthy and have a life outside the fire service will ensure longevity.

It is your responsibility to be safe, both in health and legally. Until next year, be safe.

Endnotes
Firelawblog.com – Curt Varone
Statter911 - Dave Statter
Firefighter Close Calls
Lexipol
Numerous Fire Periodicals
News Papers – Real News
Rumors and Beanery Conversations
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