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West Virginia Chief Facing Sexual Harassment Allegations

A very strange sexual harassment suit brought by the wife of a career firefighter in Grafton, West Virginia accuses the city’s fire chief of numerous sexual improprieties. And that’s not even the strange part!

Lynsey Mumaw, wife of firefighter Shane Mumaw, accuses Grafton Fire Chief John Casey Jones of numerous sexually inappropriate actions. Mumaw herself was a volunteer firefighter for the Grafton Volunteer Fire Department until she was dismissed by Chief Jones on June 12, 2012.

Among the allegations that she has made against Chief Jones are that he:

  • Routinely referred to himself as the “F%$^ing Boss of the Fire Department”  or “FB of the FD” for short;
  • Commented “that he liked to feel [Mumaw’s] breasts against him” after giving her a hug (he is alleged to have regularly given her hugs);
  • When ever Mumaw’s 17 year old daughter “indlcated she needed to leave to use the restroom, and Fire Chief John Casey Jones was around, he would ask if she needed help”;
  • Told Mumaw’s husband “If your wife would just give it up to me, you may be lieutenant a little quicker”;
  • When Mumaw was considering getting baptized he told her: “girls like you don’t deserve to be baptized because then people like me can’t get in their pants”;
  • Told Mumaw “Always remember who signs your husband’s paycheck”;
  • In the presence of her daughter, Chief Jones “grabbed Lynsey Mumaw by her head and started bobbing her head up and down towards his genitals, as in a simulated act of fellatio”;

The suit also alleges the city failed to properly investigate Mumaw’s allegations when they were originally disclosed.

The complaint was filed in state court last February. At the city’s request, the case was removed to federal court in March. It is back in the news again because earlier this month the US District Court for the Northern District of West Virginia remanded it back to state court following a finding that no federal issues were implicated.

If all of this is perhaps a little bit much process, you may want to sit down before reading further. According to the complaint Mumaw is a paraplegic, paralyzed from the waist down. YCMTSU.

The 20 page complaint explains the allegations in nauseating detail. It contains eight counts, including sexual harassment, mental or emotional injury, intentional infliction of severe emotional distress, negligent infliction of severe emotional distress, negligent failure to investigate, religious harassment, battery, and hostile work environment sexual harassment. For the Legal Eagles out there… here's the shocker… an employment discrimination complaint filed on behalf of a plaintiff who is a paraplegic… that does not allege an ADA violation…. YCMTSU – Lawyers Edition.

Here is a copy of the complaint.  Complaint.pl

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Sexual Harassment, Sexual misconduct, Volunteers, You Can't Make This Stuff Up

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No comments Posted by on May 20, 2013

Texas Firefighter Sues For Comp Disability

A Texas firefighter who was terminated while recuperating from a back injury has filed suit seeking $1 million in damages.

University Park Fire Department Paramedic Brad Tucker, 31, was injured on October 20, 2011 while lifting a patient. He had been on workers compensation recuperating until February 2012 when the City of University Park stopped both his compensation and medical coverage.

According to the lawsuit, the city acted “unilaterally and without any legitimate basis”. The city is self-insured for comp purposes.

Tucker retained an attorney who appealed the decision to the Texas Board of Insurance, Workers Compensation Division.  The Workers Comp Division ordered the city to reinstate both Tucker’s compensation and health benefits.

Thereafter Tucker was ordered to report to fire department headquarters, where he was told he had to either report for full duty by November 2, 2012, or face termination. Unable to return to full duty he was terminated on November 2, 2012.

Tucker promptly filed a claim of disability discrimination with the EOOC and the Texas Workforce Commission, who issued a right to sue letter in April. His lawsuit was filed last week alleging disability discrimination under federal and state law, wrongful termination, and retaliation.

Here is a copy of the complaint. Brad-Tucker-v-University-Park


 

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Posted in ADA, Civil Suit, Discrimination, EMS, Municipal Liability, Workers Compensation

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1 comment Posted by on May 6, 2013

NYC Trial Over Treatment of Disabled During Emergencies Begins Today

 

A class action lawsuit filed by a disability rights group against the city of New York began today. The suit alleges that the needs and rights of the disabled are routinely violated during emergencies and disasters.

The suit was filed by Disability Rights Advocates in 2011 alleging that the city does not do enough to address the needs and safety of the disabled during disasters. Testimony is expected to focus on the city's alleged failure to properly locate and rescue disabled people during several recent weather related events, including Tropical Storm Irene and Super Storm Sandy.

Lawyers for Disability Rights Advocates say the group is not seeking monetary damages, but rather wants to see disaster planning do a better job of addressing disability related matters. The federal court trial is expected to take two weeks.

More on the story.

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Politics

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No comments Posted by on March 11, 2013

Texas Firefighter Claims ADA Discrimination Due To PTSD

A Texas firefighter has filed a federal lawsuit against the City of Georgetown alleging the fire department failed to reasonably accommodate his line-of-duty post traumatic stress disorder (PTSD).

Danny Tucker alleges that he developed PTSD following a motor vehicle accident in 2011 where a teenager was trapped in a burning vehicle on I35. During the rescue, the victim was pinned and screaming for help.

The victim, who was 17 at the time, survived with burns over 30 percent of his body, and 17 broken bones.

Tucker claims his PTSD developed shortly after the incident, causing him to have anxiety, nightmares, intrusive thoughts, and an inability to concentrate. The suit claims city officials refused to reasonably accommodate his condition by finding him a suitable position that he could perform. He also accused Georgetown Fire Chief Robert Fite of saying “Bad things happen, get over it.”

Here is a copy of the complaint. Tucker v Georgetown

Two points stuck out in my mind after reading the complaint and the news articles about the suit. First, Tucker’s attorney, John Judge, told reporters that his client observed but did not participate in the rescue. Let me quote the Statesman.com so I get it right: “Tucker did not participate in the rescue but watched from the firetruck, Judge said.”

The reason for Tucker remaining at the truck is unclear. The complaint itself is eerily silent about Tucker’s role in the rescue effort. It did say he had been a firefighter since 2000, so he was not a rookie.

Second, the complaint states that in early June Tucker’s doctors and counselors recommended that he stay away from the fire service, and that a separation would be necessary and beneficial to his recovery.  Despite these clear recommendations, complaint then goes on to allege:

On or about June 15, 2011, Plaintiff read an email that was sent out to all of Fire Service Department. The email was congratulating the firefighters that saved the teenager’s life on May 20, 2011. It also mentioned that the firefighters were honored at the City Council meeting on June 14, 2011. Plaintiff was not mentioned at all in any of the honors. This exclusion was personally devastating and set back his recovery. The exclusion was in retaliation for Plaintiff having sought professional assistance, rather than “getting over it” as Chief Fite had ordered.

Putting the two points together, I am confused.  The complaint claims that Tucker needed to stay away from all fire service activities. On that point the complaint is crystal clear, and rightfully so: it is what justifies his demand to be given other employment by the city as a “reasonable accommodation”. Yet the complaint also implies that the department wrongfully excluded him from the awards ceremonies, and in doing so further damaged his recovery. Can both allegations be true? Can one be medically required to stay away from the fire service and yet still participate in an awards ceremony… an event where the incident will inevitably be recounted in excruciating detail?

Perhaps the point that the complaint should have argued is that even though he could not attend, Tucker still should have been honored for his role in the rescue. However, that raises another thorny question: did Tucker do anything at the emergency scene that was award worthy? Hard questions for sure, but questions that are going to have to be answered before a federal court judge before very long.

More on the story.

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Posted in ADA, Civil Suit, Discrimination

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2 comments Posted by on February 20, 2013

Ohio FF Loses Monocular Vision ADA Case

An Ohio firefighter/paramedic who lost an eye in an off-duty fireworks accident, today lost a federal court lawsuit to get his job back.

Anthony Rorrer was injured in a bottle rocket incident of the 4th of July, 2008. Afterwards, he sought to return to work at the Stow Fire Department, but the department refused claiming Rorrer could not perform one of the essential functions of his position, namely driving emergency vehicles.

Rorrer filed suit in 2011 claiming the department violated the American’s with Disabilities Act by failing to provide him with a reasonable accommodation, namely: allowing other firefighters to drive. He also alleged a violation of the Ohio Civil Rights Act and unlawful retaliation.

The key issues in the case came down to whether driving was an essential function of being a firefighter in Stow, and whether granting Rorrer permission to not drive would be a reasonable accommodation. The court ruled in the city’s favor on both questions finding that the ability to drive is an essential function, and allowing a firefighter the right not to drive would constitute an undue burden on Stow and Rorrer’s co-workers.

In the court’s own words:

While Rorrer opines, without evidentiary support, that it is highly unlikely that the need for him to drive would arise, the Court concludes otherwise. The very nature of Rorrer’s occupation mandates that he be able to immediately respond to emergency situations. In fact, lives depend on the ability of him and his crew to respond quickly to life threatening situations. Those situations involve risk not only to members of the general public, but also direct risks to those Rorrer works with on a daily basis. To the Court, it is clear that Rorrer’s admitted inability to drive in an emergency situation would place an undue burden on Stow and ultimately enhance the risk of harm to Rorrer’s co-workers. Further, the function at issue is clearly a business necessity. With three-man crews working, Stow must be ensured that all three firefighters can drive under emergency circumstances.

The good news is that Rorrer continues to serve as a firefighter in another department in Ohio.

Here is a copy of the decision. Rorrer v Stow Decision

More on the story.

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Occupational Safety & Health

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No comments Posted by on February 4, 2013

FDNY Facing ADA Challenge By Desk Bound EMT

Today’s burning question: I am an EMT and hurt my wrist on the job in 1997. In 2001 after two surgeries I needed an accommodation and asked to be assigned to a job “that would not require large volume typing, lifting, or straining.” The department gave me a desk job but in 2010 they eliminated my position. Then when we could not agree on another position, they terminated me. Don’t they have to continue to accommodate my disability?

Answer: If your job is to work as an EMT on an ambulance, they probably do not have to continue to accommodate you with a light duty assignment. HOWEVER… there may be another question: is your job still an EMT??? Or have you been employed in that “light duty” position for so long that you now have a different set of essential functions to qualify for?

 

A female EMT has filed suit against FDNY claiming her termination in 2010 violated the Americans with Disabilities Act because the department failed to continue to accommodate her for a wrist injury that occurred back in 1997.

EMT Kimberly Perez was injured while caring for a patient in 1997. In 2001 she requested an accommodation on account of her disability and was reassigned to EMS dispatch. Later she was assigned to the Ambulance Call Report Unit, and in 2004 she was assigned to the Recruitment Unit.

In 2010 her Recruitment Unit position was eliminated. She was offered at least 9 other positions, each of which she claimed she could not perform. As a result she was terminated because she was “unable to perform the duties of her position … by reason of a service related medical condition”.

Perez filed suit on December 14, 2012 in US District Court for the Eastern District of New York claiming  she had been discriminated against on account of her disability. Here is a copy of the complaint. Perez v FDNY

 

As for the law…the Americans with Disabilities Act (ADA) and the new and improved Americans with Disabilities Act Amendments Act (ADAAA) protect employees with a disability who are qualified to perform the essential functions of a position. Under the ADAAA an employer is required to make a reasonable accommodation IF that accommodation would allow a disabled employee to successfully perform the essential functions of a job.

This is where Perez’s case starts to go sideways. Granting her a desk job for nine years does not appear to have helped her find her way back to an ambulance (ie. the long-term accommodation has not allowed her to be able to perform the essential functions of being an EMT for FDNY), so it is unlikely that the continuation of a desk job would be considered a “reasonable accommodation”. In order to be eligible for ADA protection an employee must be able to perform the essential functions of the job with (or without) the reasonable accommodation. Her insistence that she be accommodated by being placed in a light duty position would seem to contradict the very predicate she needs to demand a reasonable accommodation.

The ADA does not a guarantee a pay-check-for-life for a disabled employee who can no longer perform a job. A light duty assignment MAY BE a reasonable accommodation in some circumstances – but there is also a great deal of confusion over this issue. The bottom line is an employer does not have to create a new position to accommodate an employee with a disability.

But here is the trap for employers. By allowing long term light duty assignments an employer can inadvertently end up creating new positions with different essential functions… essential functions that are considerably more lenient than the requirements of the employee’s original position. Reading the complaint it does not appear that Perez is specifically alleging liability under this sort of theory but the complaint is drafted in fairly general terms that may be sufficient to use that theory if her original theory fails. To avoid this trap, employers need to think through the implications of light duty assignments, develop clear policies, and follow them!

The discussion of light duty as a reasonable accommodation under the ADAAA becomes even more complicated because of other laws that intersect, including the Family Medical Leave Act (FMLA), civil service laws, workers compensation laws, collective bargaining agreements, and even public employee pension laws. It can create a mind-boggling quagmire for employers, employees, unions and lawyers alike.

One final point about the Perez complaint from a legal perspective: the complaint does not allege that she is a qualified person with a disability who can perform the essential functions of the job. Without that predicate, the case cannot go far under the ADAAA. The complaint does allege violations of New York state and local laws – and perhaps those laws offer greater protection… but without a Federal cause of action the case may be looking at an early exit from Federal court.

 

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Posted in ADA, Burning Question, Civil Suit, Discrimination, EMS, FMLA, Labor Law, Municipal Liability

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1 comment Posted by on December 31, 2012

Asthmatic Massachusetts Firefighter Terminated

A Lawrence, Massachusetts firefighter who was denied a disability pension for an asthma condition, has been terminated.

Tim Atwood, 49, a Lawrence firefighter since 2004, was terminated last week. He has been out of work since January 11, 2012, when he claims that exposure to diesel exhaust in the station caused a relapse of his asthma. Last March his request for a disability pension was denied. He had been on unemployment since August when his vacation and sick leave ran out.

Lawrence Firefighters, IAFF Local 146 have filed grievances on Atwood’s behalf, seeking to have him reassigned as a dispatcher. The department offered him a civilian dispatcher position, but at less pay than a firefighter.

The crux of Atwood’s problem is that he left the military as a “disabled veteran” due to asthma in 1996. Atwood claim’s the city knew about his asthma when they hired him. In addition his doctor says his present condition is significantly worse than it was in 1996 when he left the military.

Dr. David Christiani, a pulmonologist, wrote  “Mr. Atwood’s asthma was hastened, aggravated and exacerbated to the point of disability as a result of occupational exposure to gas, dust, vapors and fumes, particles and other materials as an active firefighter. He is now disabled from his work as a firefighter because of this and this disability is permanent.”

Atwood has already filed with the EEOC alleging disability discrimination and the union is vowing to challenge the termination.

More on the story and a related question: To what extent should a firefighter candidate’s pre-existing medical condition be allowed to become a factor in their hiring (Note: at present a pre-existing medical condition cannot even be considered unless the candidate cannot perform the essential functions of the job… with or without reasonable accommodation…. sorry … just to be precise).  And as a follow up is it fair that the taxpayers get saddled with the associated costs?

 

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Posted in ADA, Disciplinary Action, Discrimination, Line of Duty, Occupational Safety & Health, Pensions, Wrongful termination

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2 comments Posted by on December 17, 2012

Sac Metro Firefighter Claims ADA Discrimination

A Sacramento Metro firefighter who developed epilepsy in 2006, has filed suit claiming that the department’s efforts to force her retirement were in violation of the Americans with Disabilities Act.

Shannon Baker, a 12 year veteran, suffered her first seizure in May of 2006. She returned to work a week later on light duty status, and full duty in August 2006. She suffered another seizure in December, 2006 and again was placed on light duty. In May, 2008 she was cleared to return to full duty by her neurologist but claims she was wrongfully placed on light duty status because of her disability.

In October, 2008 she was informed that the department intended to forcibly retire her effective November 1, 2008 on a “non-industrial disability”. When she refused to accept retirement she was placed on unpaid leave.

In February, 2009, Baker filed an EEOC complaint and following an investigation was allowed to return to full duty on February 7, 2011. In February, 2012 the EEOC concluded that Sac Metro had violated the ADA and in September, 2012 issued Baker a right to sue letter.

According to the complaint “Within a week after receiving a right to sue letter from the EEOC on September 6, 2012, Baker was and has been subjected to an unceasing stream of petty write-ups and admonishments which are wholly inconsistent with her work history and the way these “transgressions” are viewed as to every other employee. For example she was written up for talking too much and removing a loose thread off of a female co-worker’s shoulder.”

Baker filed suit on Tuesday in Federal District Court for the Eastern District of California alleging violations of the ADA, ADA retaliation, gender discrimination, and a violation of her due process rights.  The suit seeks damages for backpay and benefits, as well as damages for emotional pain and suffering.

Here is a copy of the complaint. Baker v Sac Metro

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Posted in ADA, Civil Suit, Constitutional Rights, Discrimination, Municipal Liability

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No comments Posted by on December 7, 2012

California Firefighter Gets $425k Settlement For Disability Discrimination

The city of Merced, California has agreed to pay a firefighter candidate $425,000 to settle a disability discrimination lawsuit.

Ryan Staiger was offered a job as a Merced firefighter in 2007, but was considered to be medically unfit due to a limited range of motion in his right arm. Staiger suffered an arm fracture as a teenager.

The city’s doctor and a private specialist said the limited mobility prevented Staiger from being able to perform the essential functions of being a firefighter. Staiger claimed that he was able to compensate for the limited range of motion by rotating his shoulder, and filed a complaint with the California Department of Fair Employment and Housing Commission.

The commission agreed with Staiger and a suit was filed against the city in Merced County Superior Court.  Following a judge’s ruling that the city violated Staiger’s rights, the settlement was reached.

Staiger now works for the California Department of Forestry and Fire Protection, or CALF FIRE.

More on the case.

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Occupational Safety & Health

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2 comments Posted by on November 28, 2012

Baltimore County Settles Major ADA Case for Over $500k

Baltimore County has reached a settlement with the US Department of Justice and the EEOC over allegations that the county’s police and fire departments unlawfully discriminated against employees and candidates on the basis of disabilities.

The case arose out of a number of allegations and lawsuits dating back years that challenge the county’s approach toward compliance with the American’s With Disabilities’ Act. In 2006 the county required certain employees to undergo medical examinations and answer disability related questions about their medical history that were not job-related or consistent with business necessity. The DOJ alleges that the medical examinations and questions were “overbroad and wholly unrelated to the medical conditions for which the County was purportedly evaluating the employees’ fitness for duty.”

The complaint also alleges that the personnel officer for the Baltimore County Police Department, Robert H. Wickless, tried to raise concerns about the county’s ADA related practices, but was retaliated against in violation of the ADA.

The county is also accused of denying employment to two otherwise qualified EMT applicants for because they have insulin dependent diabetes (Type I Diabetes). This took place in 2010.

Initially, the EEOC sought a voluntary resolution of the case, but was unable to reach a settlement with the county. That prompted the EEOC to turn the case over to the Department of Justice for prosecution.

The county steadfast denied any wrongdoing, but apparently reached a settlement with the DOJ prior to the suit actually being filed on Tuesday. The settlement, filed at the same time as the complaint, requires the county to pay roughly $500,000 to 10 named plaintiffs, one of whom will also be hired as a probationary firefighter in December. The county also agreed to address the concerns that gave rise to the complaints, and submit reports to the DOJ at 6 month intervals on its compliance efforts.

Here is a copy of the complaint. US V Baltimore County COMPLAINT

Here is a copy of the consent decree. US V Baltimore County CONSENT DECREE

Note that the last 2 pages of the consent decree lists the specific awards made to the 10 injured parties.

 

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Posted in ADA, Civil Suit, Discrimination, Municipal Liability, Occupational Safety & Health

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No comments Posted by on August 9, 2012

Pittsburgh Captain Claims Withholding Severance Payout Violates First Amendment

A Pittsburgh fire captain who retired on June 1, 2012 has filed a lawsuit in Federal Court alleging the city wrongfully withheld payment of his accrued sick leave. How is that a Federal case? He claims the money was withheld in retaliation over him having exercised his 1st Amendment rights two days before while on duty.

David Cerminara, 56, filed suit yesterday alleging that the city and Public Safety Director Michael Huss were attempting to unlawfully punish him for comments he made to reporters on May 30, 2012 that were critical of the Pittsburgh Department of Public Works.

Captain Cerminara was on duty at the time and watched as one city crew painted lines on the roadway in front of his station. An hour later, a second crew came by and tore up the freshly painted surface in preparation for resurfacing. A news crew in the area covering the story asked Captain Cerminara what he had seen and he told them, including referring to the work as a waste of taxpayer funds. The news station then ran a humerous story about line painting/repaving incident.

When the story aired, it apparently angered city officials and prompted Public Safety Director Huss to order a disciplinary investigation of Captain Cerminara for having spoken to the media without permission.

Here is where the story gets kind of weird. Captain Cerminara retired June 1, 2012 at 08:00 hours. According to the lawsuit Huss rescinded Captain Cerminara’s retirement, and purported to order him to “remain on duty pending the outcome of a Trial Board hearing on June 21, 2012.”

In fact, according to the complaint, Huss himself went to Captain Cerminara’s house on June 1, 2012 at about 2:30 pm to personally deliver the order. According to the complaint: “When it was pointed out to Defendant Huss that he could not order a person who no longer worked for either him or the City of Pittsburgh to remain on duty, to attend a hearing, or indeed to not speak as a private citizen on a matter of public concern, he became enraged.”

The city and Huss have since refused to give Captain Cerminara his severance check, estimated to be approximately $20,000.

The lawsuit goes even a bit further and discusses a previous suit that Captain Cerminara filed against the department. In 2007, Captain Cerminara was suspended indefinitely without pay after he suffered a seizure. The department considered him to be medically unfit. He sued under the Americans with Disabilities Act and was reinstated with backpay. While the new lawsuit does not specifically allege retaliation over the prior lawsuit, the implication is clearly there.

Here is a copy of the 2007 ADA case. Cerminara ADA

Here is a copy of the suit filed yesterday.  Cerminara 1st Amend

This is the second story this week where disciplinary action has been taken against an on-duty firefighter for speaking to the media. Recall the DC case of Lt. Alvarado.

Once again we see the difficult questions associated with whether firefighters are speaking as “private citizens” – in which case they may have 1st Amendment protection, or whether firefighters are speaking as spokespersons for their fire department – in which case they do not. In between the two extremes of “private citizen” and “spokesperson” is a vast grey area… a 1st Amendment “no-man’s land”.

One tool we have to try to help sort through the 1st Amendment  quagmire is the Pickering Balancing Test… but even that test is not all that helpful in the private citizen-spokesperson dichotomy because it requires a determination that someone is speaking as a private citizen for it to even apply. Here is a concise restatement of Pickering Balancing Test:

If an employee is (1) speaking on a matter of public concern (2) as a private citizen, they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” in order to have 1st Amendment protection

And as I say at every opportunity – the Pickering Balancing Test a phenomenal test if you are a judge (in which case have the luxury to second guess everyone after the fact… who cares if no two judges can agree on the specifics of a given case) or if you are a law school professor (in which case you can create wonderful hypotheticals to dazzle your students)… but in terms of being a fire chief trying to establish reasonable boundaries, or the average firefighter trying to figure out where the boundaries are – the Pickering Balancing test is a huge disservice to us all.

More on the Cerminara case.

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Posted in ADA, Civil Suit, Constitutional Rights, Disciplinary Action, Discrimination, First Amendment, Municipal Liability, Politics, You Can't Make This Stuff Up

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6 comments Posted by on July 6, 2012

Oregon Firefighter With Pacemaker Settles Discrimination Suit

A female firefighter from Eugene, Oregon who was prohibited from returning to duty with a pacemaker, has settled a disability and gender discrimination suit against the fire department for $285,000.

Carolyn McCann suffered a cardiac event on December 6, 2006 while participating in training for the Seattle Firefighters stair climb. She subsequently required a pacemaker to be implanted, and was prohibited by the department from returning to full duty.

McCann claimed the Eugene Fire & EMS Department refused to allow her to return despite the fact that her doctor and the department physician concluded that she was capable of safely performing her duties. She filed suit in Federal Court under the Americans with Disabilities Act claiming she was discriminated against on the basis of having a perceived disability. She also alleged disability discrimination under state law, a violation of her equal protection rights, sex discrimination, and retaliation for having filed a workers comp claim for her heart condition.

Besides the fire department, also named in the suit were Fire Chief Randall Groves and Ops Chief Karen Brack. Both were sued in their capacity as officials of the department and personally.

McCann had previously filed a complaint with the Oregon Bureau of Labor & Industries over the matter. The bureau concluded in January 2010 that there was substantial evidence to believe McCann has been unlawfully discriminated against.

According to news reports, it was the city’s insurer, not the Eugene Fire Department, that agreed to the settlement. Claims manager Cathy Joseph said the company made its decision on a number of factors, including the costs of litigation.

Here is a copy of the original complaint that sets forth McCann’s version of the events leading up to the suit. McCann v Eugene

More on the story.

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Posted in ADA, Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Occupational Safety & Health

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6 comments Posted by on April 12, 2012

Erie Seeks Reversal of Verdict in Favor of Wolski

The city of Erie, Pennsylvania is asking a Federal court judge to reverse a jury verdict in the wrongful termination/discrimination case of female firefighter Mary Wolski. Recall two weeks ago the jury granted Wolski $206,000 in back pay and reinstatement finding her termination to violate the Americans with Disabilities Act.

Wolski was terminated in 2007 following her attempted suicide in December, 2006 by setting a fire. The city’s motion asks the court to find as a matter of law that the evidence was insufficient for a jury to rule in Wolski’s favor.

More on the motion.  For a recap of the case.

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Posted in ADA, Arson, Criminal Law, Disciplinary Action, Discrimination, Municipal Liability, Wrongful termination, You Can't Make This Stuff Up

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No comments Posted by on February 23, 2012

Erie Firefighter to Get Her Job Back

The Erie firefighter who was terminated from the department after she tried to commit suicide by setting fire to clothes in a bathtub, has won her job back. Mary Wolski, 45, the department’s first female firefighter, set the fire hoping that the smoke would kill her.

Wolski was suffering from severe depression and was under medical treatment at the time of the blaze. On December 28, 2006 she attempted suicide in her father’s vacant home by putting cloths into a bath tub and setting it on fire. She then tried to douse the fire with water and went on to cut her wrist. Meanwhile her family members found her and called for help.

Wolski underwent medical treatment, was able to recoup, and was later found fit for duty. In 2007 the district attorney opted not to press criminal arson charges against her. Wolski then sought to return back to duty, but instead the department terminated her. 

She appealed her termination to the Civil Service Commission, which upheld the city’s decision. Wolski then filed suit under the American with Disabilities Act (ADA) claiming stating that she was actually terminated by the city on account of her depression, and the city’s ungrounded fears that she might relapse into depression again.

Yesterday, an eight member Federal jury decided that that the city violated the ADA and Wolski’s rights. The city was ordered to pay back wages to Wolski and reinstate her with her seniority intact.

Assistant City Solicitor Gerald Villella said afterward that the city feared rehiring Wolski would impact the morale of the Fire Department, and that the City would consider filing an appeal.

More on the story.

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Posted in ADA, Arson, Civil Suit, Criminal Law, Disciplinary Action, Discrimination, Wrongful termination

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6 comments Posted by on February 7, 2012

Morphine Pumps and Driving Apparatus

Today’s burning question: I am a firefighter paramedic in a volunteer fire department. One of our ambulance drivers  was recently put on a morphine pump, and many of us are concerned about whether he should be allowed to drive, or even respond at all. The fire chief and the fire board are allowing it because he has a note from his doctor. Is this legal?

Answer: Let me ask the same exact question, but in a different way:

I am a volunteer ambulance driver and unfortunately I have a morphine pump. It is a low dose – so low that my doctor has concluded I can still drive and more importantly still drive the ambulance. The fire chief and the fire board have reviewed my doctor’s note and are allowing me to drive. However some members are complaining and are trying to get the department to make me stop driving. If that happens can I sue them and the department for violating my rights?

Which of these two questions is the correct question?

All kidding aside – if his doctor knows he drives an ambulance and says he can safely do so with a morphine pump, I am not sure the department can stop him without violating the American’s with Disabilities Act, and probably state disability discrimination laws as well.

Personally I am astounded that a doctor would say that someone with a morphine pump can drive an emergency vehicle – but that being said – it is not the chief or the fire board’s role to overrule the doctor. One thought might be to have the department doctor (assuming you have one) contact the member’s doctor just to confirm the note is accurate and that the member’s doctor understands the demands of the position. NFPA 1582, Standard of Comprehensive Occupational Medical Program for Fire Departments, would be a good resource for the doctor to use in making the determination.

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Posted in ADA, Burning Question, Discrimination, EMS, Occupational Safety & Health, Volunteers

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10 comments Posted by on February 5, 2012

Detroit EMT Sues For Sexual Harassment and ADA Discrimination

An EMT with the Detroit Fire Department has filed suit against the department alleging sexual harassment, sexual assault, and discrimination under the Americans with Disabilities Act.

EMT Kimberly Asaro alleges that she was sexually assaulted and harassed by Battalion Chief Jack Wiley on a number of occasions dating back to 2007. An internal investigation cleared Chief Wiley. Asaro’s suit alleges she was denied a copy of the investigation report, and was told informally that Chief Wiley “meant no harm”.

Asaro also alleges that she had a medical condition, irritable bowel syndrome, that the department refused to accommodate by requiring her to wear a belt. The belt allegedly aggravated her symptoms. Last June, the EEOC found reasonable cause for her ADA claim, and proposed a settlement in the case, but the department refused to accept it.

More on the story.

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Posted in ADA, Civil Suit, Sexual Harassment, You Can't Make This Stuff Up

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2 comments Posted by on December 23, 2011

Terminated Riverside Fire Chief Sues Under ADA

An Illinois fire chief who was terminated by the Village of Riverside last February has filed suit against the village and a fire officer who repeatedly complained about him drinking on duty.

Fire Chief Kevin Mulligan filed suit in Federal Court on November 16, 2011 under the Americans With Disabilities Act,  against the Village and Fire Captain Matthew Buckley. The suit alleges that the chief was terminated because the Village officials perceived him as being alcohol dependant based primarily on the repeated allegations of Captain Buckley.

According to the complaint, Buckley reported the chief’s drinking to the Village manager on at least three occasions, causing the Village leadership to conclude he had an alcohol dependency. On each occasion, Chief Mulligan submitted to an alcohol evaluation and was found to not be alcohol dependent. The Chief also alleges he offered to submit to alcohol testing, but was turned down.

Suing under the ADA is not usually a viable option for employees who are terminated for drugs and alcohol. However, the law recognizes an important distinction between someone who is impaired on duty and someone who is perceived as having a drug or alcohol dependency. The ADA offers no protection to someone who is impaired while on duty, even though it is the natural result of an addiction.

The ADA does protect someone who is discriminated against on the basis of a perception that they are disabled by a drug or alcohol dependency.  That is the theory Chief Mulligan’s attorneys are pursuing.

The complaint is a pretty easy read (very well drafted unlike many legal pleadings) and explains the circumstances better than any of the news articles I have seen on the case. The complaint also contains a count against Buckley personally for defamation.

Here is the complaint. Mulligan v Riverside COMPLAINT

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Posted in ADA, Civil Suit, Discrimination, Wrongful termination

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No comments Posted by on December 2, 2011

Baltimore Medics Deny Transport to Seeing Eye Dog

A Baltimore city paramedic crew is in hot water over their treatment of a blind veteran and his service dog after the man was struck by an auto.

Curtis Graham, Jr., a Vietnam Vet, was on his way to the Veteran’s day parade on November 11, 2011 when the injury occurred. Graham claims that city paramedics refused to transport him with his dog.

Both the Americans with Disabilities Act and Maryland state law prohibit discrimination against a disabled person with a service animal. Service dogs are allowed to go anywhere that a person can go. That means anywhere – including restaurants, airplanes, hotels, theaters, and – yes – ambulances.

This is from the Maryland Code, Title VII:

§ 7-705. Service animals

In general

(a) The following individuals have all the same rights and privileges conferred by law on other individuals:

(1) a blind or visually impaired pedestrian using a service animal …

(2) a deaf or hard of hearing pedestrian using a service animal …

(3) a blind, visually impaired, deaf, or hard of hearing pedestrian using a service animal in a place, accommodation, or conveyance listed in § 7-704(b) of this subtitle; and

(4) a service animal trainer who is accompanied by an animal that is being trained as a service animal.

Mobility impaired individual accompanied by a service animal

(b)(1) A mobility impaired individual may be accompanied by a service animal specially trained for that purpose in any place where a blind, visually impaired, deaf, or hard of hearing individual has the right to be accompanied by a service animal.

(2) This subsection does not require a physical modification of any place or vehicle in order to admit a mobility impaired individual who is accompanied by a service animal. …

Extra compensation prohibited; liability

(d)(1) A blind, visually impaired, deaf, hard of hearing, or mobility impaired individual who is accompanied by a service animal specially trained for that purpose in a place, accommodation, or conveyance listed in § 7-704(b) of this subtitle may not be required to pay extra compensation for the service animal, but the individual may be liable for any damages to the premises or facilities caused by the service animal. …

Violations; penalties

(e)(1)(i) A person may not deny or interfere with the admittance of a service animal that accompanies a blind, visually impaired, deaf, hard of hearing, or mobility impaired individual in violation of this section.

(ii) A person who violates subparagraph (i) of this paragraph is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $500 for each offense.

(2)(i) A person may not deny or interfere with the admittance of an animal being trained as a service animal that accompanies a service animal trainer.

(ii) Subject to subsection (c)(2) of this section, a person who violates subparagraph (i) of this paragraph is subject to a fine not exceeding $25 for each offense. 

§ 7-704. Rights of individuals with disabilities

(a) Individuals with disabilities and the parents of a minor child with a disability have the same right as individuals without disabilities to the full and free use of the roads, sidewalks, public buildings, public facilities, and other public places.

(b)(1) Individuals with disabilities and the parents of a minor child with a disability are entitled to full and equal rights and privileges with respect to common carriers and other public conveyances or modes of transportation, places of public accommodations, and other places to which the general public is invited, subject only to any conditions and limitations of general application established by law.

 

Graham has filed a complaint with the US Justice Department, and the Baltimore City Fire Department has launched an investigation. Incidentally, most states have a law similar to Maryland’s law that allows service dogs to go anywhere their master goes. The laws generally extend to all service animals, including USAR canines, police service dogs, arson dogs, and dogs for the visual, hearing, and mobility impaired.

If nothing else this story should prompt a brief training module on service dogs to be added to EMS training programs.

11/29/11  5:30 pm. The story was updated a few minutes ago when 2 Baltimore FD officials visited Mr. Graham to apologize, and assure him that additional training will be provided to all personnel on the proper treatment of service dogs.

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Posted in ADA, Disciplinary Action, Discrimination, EMS, You Can't Make This Stuff Up

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1 comment Posted by on November 29, 2011

Jeffersonville Settles Disability Discrimination Case

An Indiana firefighter who had a lung removed and suffered a heart attack but never the less wanted to stay on the job, has received a monetary settlement from the City of Jeffersonville following a Federal discrimination lawsuit.

Major Irvin “Mac” Kircher, a firefighter with the Jeffersonville Fire Department since 1971, had a lung removed in 2002 and suffered a heart attack July 20, 2008. Somehow his cardiologist approved him to return to work in November 2008. Kircher was assigned administrative duties until March 23, 2009, at which point he was terminated because the city concluded he would never be able to return to full duty.

The termination cost Major Kircher somewhere around $300,000 that he would have been entitled to had be been allowed to continue working under a drop program. He filed suit in state court and later in Federal court alleging violation of his due process rights (no hearing prior to termination) and discrimination under the Americans with Disabilities Act.

The settlement followed Federal court mediation efforts, and is reported to be for $130,000. For more on the story.

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Posted in ADA, Civil Suit, Municipal Liability

No comments Posted by on April 20, 2011

FDNY Medic’s IOD Complaint Becomes a Federal Case

A decorated FDNY medic has filed a lawsuit in Federal court alleging he has been discriminated against under the Americans With Disabilities Act (ADA). Paramedic Gary Smiley, 48, alleges that the city improperly denied him injured-on-duty status while he was recovering from reconstructive sinus surgery related to injuries suffered in the aftermath of the World Trade Center attacks. He also claims he was later retaliated against because he complained.

The suit was filed last May, but is making news again as the city is seeking to have the case dismissed.

The complaint refers to Smiley as an “elite” employee, “one of the most highly decorated Paramedics employed by” the FDNY, with over 100 documented pre-hospital resuscitation saves. Smiley claims following his initial compliant to superiors about his IOD status, he was removed from a “Special Operations” rescue assignment with a 12% pay differential, and also removed as a senior paramedic instructor from which he earned another $10,000 per year.

He further alleges that following his formal complaint to the EEOC about his IOD status, the city decertified him as a hazmat tech, and removed him from the “prestigious Haz-Tac Unit”.

FDNY alleges that Smiley was disciplined twice in 2009 for “performance related” issues, and that the he was properly charged sick leave for the absences related to his disability following surgery.

Here is a copy of the amended complaint, filed after the city’s motion for summary judgment.  AmendedComplaint

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Posted in ADA, Civil Suit, Discrimination, EMS

No comments Posted by on April 14, 2011

Fire Service Court: Psychological Testing for Firefighters

Here is the latest edition of Fire Service Court radio. This podcast is on the psychological testing of firefighters.

Please be sure to join the Fire Service Court (Brad Pinsky, Chip Comstock, John Murphy and yours truly) in Indianapolis next week for FDIC!

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Posted in ADA, Occupational Safety & Health

No comments Posted by on March 16, 2011

Lowell Captain Prevails in Unusual Discrimination Suit

A retired Lowell, Massachusetts fire captain has won a discrimination lawsuit against the Lowell Fire Department for refusing his request to be reinstated.

The complicated story began in 1997 when Captain James McLaughlin was given a disability pension due to an asthma condition. Four years later, when his condition had improved, he requested to be reinstated.

The fire department declined to rehire McLaughlin despite the fact that a state appointed "restoration to service" medical panel examined McLaughlin and found him to be fit.  The panel’s determination should have required to city to rehire McLaughlin to fill the next available captain’s position.

A Middlesex County Superior Court jury awarded McLaughlin $350,000 in damages earlier this month, finding the city illegally discriminated based upon his asthma condition.

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Posted in ADA, Civil Suit, Discrimination

No comments Posted by on December 27, 2010

Fire Prevention Chief Sues Under ADA Alleging Disability Discrimination

The chief of fire prevention in White River Township, Indiana, has filed suit alleging that the fire department discriminated against him under the Americans with Disabilities Act by suspending him and not allowing him to return to work after he suffered from seizures.

Eric Brown began having seizures in 2008 and was diagnosed with a temporal lobe seizure disorder. He was cleared to return to work by his doctor and the fire department doctor. After returning to work, the fire department suspended Brown without pay for four disciplinary actions allegedly related to the seizures.

In February 2009, Brown was placed on administrative leave, and underwent treatment for his seizures at the Mayo Clinic in Minnesota. The lawsuit claims that the Doctors in Mayo Clinic cleared Brown to return to work in May and June 2009 with restrictions, but the department did not allow him to return to work, suggesting that Brown retire and go on disability.

Brown’s attorney then asked the department to allow Brown to return with a reasonable accommodation, but the request was rejected. In October 2009, Brown’s doctor certified that he could return to work without restrictions, but the fire department placed certain restrictions on him.

Brown’s attorney alleges that as a fire investigator, a seizure disorder would not put other firefighters at risk, and that Brown just wants to be able to do his job.  White River Fire department disputes the allegations in the lawsuit, which is now pending in US District Court.

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Posted in ADA, Civil Suit, Fire Prevention

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No comments Posted by on October 5, 2010

Oakland Settles Discrimination Case: Seizures

Captain Vicky Evans-Robinson, 55,  who worked as a spokeswoman for the Oakland Fire Department, recently settled a disability discrimination lawsuit with the city for $245,000. The law suit had alleged that the department refused to allow Evans-Robinson to return to active duty on three occasions from 2005 to 2008, following seizure episodes despite medical clearance from her neurologist.

City officials denied the allegations and said that they provided Evans-Robinson with time off for her medical condition so that she would be able to perform her duties without endangering herself or others. Robinson has been back to work since last year and now works with the hazardous materials division.

On November 13, 2009, Judge Ronni MacLaren ruled in Alameda County Superior Court that the city was not liable for disability discrimination but left it to the jury to decide if Evans-Robinson was subjected to "adverse employment actions because of a medical condition." Choosing not to risk a jury verdict, the city agreed to compensate  Robinson  with $245,000. The council is expected to formally ratify the agreement on Dec. 8.

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No comments Posted by on December 1, 2009