Commentary, Leadership, Legal

Preventing Legal Fires 2019 – Year in Review

Yikes, my new favorite word when I see something legal affecting the fire services in a positive and adverse way. Unfortunately, there are a lot of cases in 2019 that adversely affects our firefighters and the fire service in general. Firefighter and fire department behavior has not gotten better but it is not worse than last year. We still see the big issues of discrimination, harassment and bullying, social media abuse, there is an uptick in votes of no confidence against fire chiefs this year, embezzlement, EMS malpractice litigation remains constant, driving injury and death affecting both uniform and civilians just to name a few.

The material I usually address in this column is 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 in spite of the advice provided by my legal cohorts in writings and lectures from Pinsky, Varone and Comstock, the fire services continue to wallow in the muck and mire of legal jeopardy.

Preventing Legal Fires and Legal Jeopardy lectures and writings, I discuss the importance of not violating established Constitutional, Federal or state law protections. Fire Departments has an obligation to uphold these laws to include your departments Policies, Procedures, SOGs and SOPs.

It is my observation the fire Department is an institutional form of our collective personalities and 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 are 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 them.

Let’s look at a few cases from 2019:

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.

  • In Mason vs El Dorado Hills Fire Department & Dave Roberts et al, a California firefighter claims she endured years of sexual harassment has agreed to settle her federal lawsuit for $335,000. The firefighter sued the El Dorado Hills Fire Department and former Fire Chief last year and after the settlement she left the fire department.
  • A Massachusetts firefighter terminated in 2017 has filed suit in federal court alleging decades of discrimination, harassment and retaliation. The Lieutenant filed suit against the Town of Rockland with allegations dating back to a 1996 incident where the Lieutenant was physically assaulted by a town selectman. The Selectman was subsequently convicted of a racial assault and battery on the Lieutenant who African-American is alleging the racial assault left him with PTSD. The complaint further alleges a series of incidents where the Lieutenant was “singled out for petty and discriminatory violations of procedure that ultimately culminated in his termination from employment.
  • A fire dispatcher in Connecticut who was terminated has filed suit in federal court alleging she was the victim of race, ethnicity, gender and age discrimination. The dispatcher filed suit against the Cromwell Fire District claiming she was harassed on account of her Japanese ancestry, her gender, and her age, and then retaliated against when she complained. She had worked for the Cromwell Fire District for just seven months before she was fired. (See Case 3:19-cv-01931)

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. This case below is representative of the many Sexual Harassment cases plaguing the fire service. There are many more but this case is illustrative of the problem facing women firefighters around the country

  • A female firefighter who was forced to take a medical retirement from the Fort Worth Fire Department has filed a 55-page, 330-paragraph, ten-count complaint naming the city and five officers, accusing them of sexual harassment and violating her civil rights. Identified in the complaint as Jane Doe, the firefighter claims she was sexually assaulted while on-duty by supervisors, who created a culture that “that treated woman as sexual objects instead of respected co-workers.” The complaint includes an assortment of allegations including that she was wrongfully disciplined, subjected to hostile work conditions, and victimized whenever she reported misconduct. (See Case 4:19-cv-01001-A) Among the charges, a male coworker threatened to kill her while at work, and when she reported the threat, she was transferred and nothing happened to the threat-maker; she was harassed and sexually assaulted by her supervisor; after being transferred she was sexually harassed and assaulted by another supervisor; after another transfer, she was harassed by yet another supervisor who followed her into the fire station gym, and masturbated as he watched her work out. This reportedly occurred on three occasions. Finally, when her 8-year old daughter stopped by the station for a visitation, a firefighter smacked Doe on her butt hard enough to leave a bruise. In tears Doe fled to the bathroom, and later struggled to explain to her daughter what had happened. When Doe reported the assault, she included a photo of the mark that was left on her. The supervisor not only did nothing to address the assault, he photo shopped a smiley face, several kisses, and several finger emoji’s onto the photo and sent it back to her.

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 PDS. 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.

  • The US Equal Employment Opportunity Commission (EEOC) has filed suit against American Medical Response (AMR), accusing it of discriminating against pregnant workers. The suit was filed in US District Court for the Eastern District of Washington on behalf of the paramedic for AMR in Spokane (WA). According to the complaint, the employee requested a light duty assignment during the late stages of her pregnancy. At the time AMR provided light duty assignments for employees who were injured at work, but denied such an assignment to her. The EEOC indicated, “Rather than assign her the light duty tasks regularly available to AMR employees injured on the job, the company denied her request and instead directed her to either take unpaid leave or work without any restrictions.” The EEOC attempted to negotiate a resolution of the matter with AMR, but according to the complaint “was unable to secure from Defendant a conciliation agreement acceptable to the Commission.” The complaint seeks a permanent injunction enjoining further acts of pregnancy and/or gender discrimination, implementation of new policies that meet EEOC requirements, the payment of monetary damages to Hall, and an award of punitive damages. (See Case 2:19-cv-00258) It interesting that the EEOC has taken on the burden of proving this case due in part to the disparity of treatment related to light duty for employees of a private ambulance service.
  • There are many other cases of Pregnancy Discrimination under the Pregnancy Discrimination Act (PDA) and fire departments cannot claim ignorance to the issues facing the use of light duty either mandated or denied to pregnant firefighters and the application to all members of the fire department.
  • Although an older case, a great case to review for PDA discrimination is the outcome in Davie Florida fire department where the Department of Justice became involved in a pregnancy discrimination and retaliation claim. See https://www.justice.gov/iso/opa/resources/9792012621175626541417.pdf

Embezzlement usually 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. The caveat here is to watch your money as it belongs to the taxpayer.

  • The treasurer of a Pennsylvania fire department is facing charges that he embezzled $93,000 from the department. According to The Bradford Era, the treasurer, age 35, is facing a total of 128 charges for stealing money from the Genesee Fire and Ambulance Department. The charges were brought by the Pennsylvania State Police. The thefts reportedly occurred over roughly a one year period from June 2017 to June 2018. The Treasurer was previously investigated and charged with stealing from a New York emergency provider, the Independence Rescue Squad, where he also served as treasurer.
  • A South Carolina fire chief who was convicted of embezzling funds from his department has been sentenced to 33 months in federal prison. The US Attorney announced today that US District Court Judge had handed down the sentence to former St. Paul’s Fire Chief and prior to that conviction, a jury convicted the Fire Chief, of embezzling funds from the St. Paul’s Fire District. A co-defendant, was also convicted. She was sentenced to 14 months in prison. Both will be required to serve 3 years of supervised probation upon their release. The Fire Chief and his co-conspirator faced up to ten years in prison and a fine of up to $250,000. Prosecutors claim they embezzled approximately $215,000 in federal funds from a FEMA grant for a new fire station.
  • Here are some simple prevention methods contained in this article: https://community.fireengineering.com/profiles/blog/show?id=1219672%3ABlogPost%3A620108

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 postings 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-media-does-the-first-amendment-protect-you/.

  • A Texas firefighter was terminated from three different departments after he posted on Facebook about hunting people at the Texas border. The 30-year firefighting veteran, worked for the Westfield Fire Department, the Bellaire Fire Department, and Harris County EMS, better known as Acute Medical. He made the inappropriate social media post and by the time the postings went viral, he was no longer employed as a first responder anywhere. His comments are totally inappropriate as he states, “We should buy deer feeders fill them with pinto beans put them on the border and make a new hunting season. I wonder how many Texans will buy that hunting licenses and how many tags we would be allowed…” he wrote on his Facebook page.
  • In an interesting case involving the power of politics and social media, a firefighter posted on election day, the firefighter now Plaintiff captioned his Facebook profile picture, a photograph of him wearing his Amityville Bunker Gear holding his new baby with the following; “WE ARE VOTING NICK LALOTA FOR MAYOR.” He then reposted the photograph to his Facebook wall along with the following endorsement for two other members on Lalota’s ticket; “Vote for the team that has the education, experience, and proven track record, vote for the most qualified candidates, Nick, Jim and Jessica. Keep the Village moving forward.” Approximately one hour after posting the photograph, the firefighter received an “order”, via text, from a Captain stating, “As per chiefs and village attorney please remove immediately the post on Facebook of you in your Amityville bunker gear endorsing a political candidate.” Plaintiff immediately removed the photograph but was ultimately suspended for 30 days. The firefighter files a lawsuit against the department citing among other issues of failure to provide Due Process, retaliation, defamation and violation of his 1st Ammendment rights. (See Squicciarini v. Vill. of Amityville (E.D. N.Y. 2019))
  • 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 70% 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. 
  • Discipline of volunteer firefighters is a question often asked related to their due process rights. Typically, one need only conduct formalized disciplinary hearings where the individual being disciplined: 1) is guaranteed a specified disciplinary process by virtue of department policies or an employment contract; or, 2) has a property interest in continued employment (i.e. is not a purely at-will employee).  Unless your department has adopted some form of contract or operating procedure which entitles your volunteer members to a formal disciplinary process, none is typically required.  And while conducting a disciplinary hearing may provide greater formality to the termination of a member, it will also result in your department incurring greater expense, and potentially incurring greater liability than a simple notification of termination. Assuming that no hearing is required, a member can be terminated for any reason at all, other than an unlawful reason.  Unlawful reasons include termination due to: 1) race; 2) gender; 3) sexual preference; 4) religious affiliation; 5) retaliation; etc.  Termination as retaliation can be retaliation in response to: 1) the member supporting a disfavored political position or candidate (e.g. supporting someone running for FPD Trustee); 2) the member making a good faith report of a perceived violation of applicable state or federal law (e.g. OSHA complaint, sexual harassment report, etc.); or 3) the member otherwise exercising his or her lawful rights and being retaliated against for doing the same.  With or without a hearing, a member cannot be terminated or disciplined for an unlawful reason. As always, check with your department attorney if you are planning any adverse action against your volunteer firefighters.
  • Arson among the volunteer firefighters do not present a positive view of your department if your members are charged. In North Carolina, 10 North Carolina volunteer firefighters have been arrested and accused them of setting fire to abandoned buildings and woods over two years. Robeson County Sheriff said in a statement the firefighters were from the Fairmont Rural and Orrum fire departments, and were involved in a conspiracy to set the fires. The sheriff said there are approximately 90 arson-related charges in the investigation with more charges expected. Officials said that hundreds of thousands of dollars were wasted responding to the fires in Robeson County, near the state’s border with South Carolina.
  • (See https://www.fireengineering.com/2010/07/04/302101/murphy-firefighter-arsonists/)

Finally:

Although not in the legal category and I do wear a few additional 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.

You are responsible for your own health at the emergency scene. 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

Statter911 – Dave Statter

Firelawblog.com – Curt Varone

https://www.mickeywilson.com/wp-content/uploads/2017/04/discipline-volunteer-poc-firefighters-emt.pdf

Firefighter Close Calls

Lexipol

Numerous Fire Periodicals

News Papers – Real News

Rumors and Beanery Conversations

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