FDNY has settled a gender discrimination case with five female EMS officers for $1 million. The women claim they were wrongfully passed over for promotion by lesser qualified males.
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FDNY Pays $1 million on Gender Discrimination Claim
Posted in Civil Suit, Constitutional Rights, Discrimination, EMS, Municipal Liability, Promotions
Sacramento Metro Sex Scandal Case Heads to Trial
A seven-year-old wrongful termination suit arising out of a nasty sexual misconduct scandal is finally headed to a federal jury.
The suit was brought by Fire Captain Mark Thomsen, a 19 year veteran with the Sacramento Metro Fire Department who was assigned to the special investigations (internal affairs) unit. He claims he was terminated in retaliation for refusing to remain silent about a “cover up” of a sexual misconduct scandal, as well as his involvement in investigating a number of other scandals, including one involving bogus college degrees and another involving financial crimes by high ranking department officials.
Thomsen was terminated on March 26, 2007 allegedly because he changed a department record at the direction of a district commissioner.
The sex scandal involved a former female employee who complained about both consensual and forced sex acts involving some fifteen employees. According to the complaint a private investigator hired to assist with the investigation told Thomsen that “the former female employee had been subjected to a series of sexual assaults by a number of District employees, and mentioned that he believed she had been raped, sodomized and sexually assaulted while on duty over a span of several months”. The complaint states that a union official was allegedly among those involved in the scandal.
Thomsen claims he was given a “direct order” by the Fire Chief to “keep your mouth shut”, and admonished that the case had the potential to “bankrupt the district”. Thomsen felt that the matter should have been handed over to the police for investigation and prosecution. The woman’s claims were settled in 2006 by paying her $550,000.
The suit was originally filed in state court back in 2008 naming the department, the firefighters union, and ranking officers of each. It was removed to federal court in 2009. The complaint contains 24 counts, including wrongful termination, breach of the covenant of good faith, intentional infliction of severe emotional distress, negligent infliction of severe emotional distress, civil conspiracy, denial of due process, state labor law violations, and breach of the union’s duty of fair representation.
Here is a copy of the complaint (Amended): Thomsen v Sac Metro
Here is a copy of an earlier ruling in the case on the union’s motion to dismiss a number of counts. It contains a pretty concise overview of the allegations. MemoOrder
The trial starts this week.
No Discipline for Miami Dade Captain in Helicopter LZ Yelling Match
The Miami-Dade fire captain who attempted to stop a photographer from filming at a med flight helicopter landing will not face disciplinary action for his behavior.
Captain Greg Smart yelled at and later pushed photographer/blogger Taylor Hardy in an attempt to get him to stop filming the transfer of a patient from an ambulance to a helicopter. The March 21, 2013 altercation was recorded by Hardy and became somewhat of an Internet sensation when posted on YouTube.
Hardy filed a complaint with MDFR over Captain Smart’s behavior and the matter was investigated. The investigation concluded that disciplinary charges were “not sustained”.
Today, CBSLocal.com in Miami was unusually critical of the investigation characterizing it as a “cover up”. The news outlet cited the fact that the investigation neglected to even consider Captain Smart’s requesting police assistance “Code 3” and mischaracterizing Hardy’s behavior as “combative”, something that is clearly refuted by the video. They also interviewed Hardy, who said he was never informed that his complaint had been dismissed, nor had he received an apology.
The investigation did conclude that Captain Smart acted unprofessionally, but found that “He was under a great deal of stress on this call and acted in an aggressive nature when challenged by the bystander. … Capt Smart agrees that he overreacted and caused embarrassment not only to himself but to the department. I feel that in the future he will have a different perspective as to how we need to act regardless of the severity of the call.”
Incidentally, CBSLocal.com’s news outlet’s sympathies are understandable given the obvious First Amendment issues that are such a huge concern to those in the media. From a Fire Law perspective, I am concerned that by not taking a clearer stand on what (IMHO) was a pretty obvious First Amendment violation MDFR may in fact provoke a totally unnecessary federal lawsuit.
The reality is many in the media feel so passionately about the First Amendment that they are highly motivated to teach governmental actors (such fire departments and firefighters) a lesson… a very expensive lesson that in this case seems to have been missed by MDFR.
Often after a possible liability causing event attorneys take a conservative approach: admit nothing, deny everything and force the bastards to prove their case. Many enlightened leaders are realizing that a simple and sincere apology is often a better solution… one that in the long run can even be cheaper!!!! This case would seen to be a prime candidate for such an approach.
The ball is now in Taylor Hardy’s court. I’d be surprised if First Amendment groups do not rally around Hardy and help bankroll his cause.
Boston Fire Chief Threatens to Sue His Deputy Chiefs
Boston Fire Chief Steve E. Abraira has threatened to file suit against the 13 deputy chiefs who criticized him in a letter to Mayor Thomas M. Menino following the Boston Marathon bombing.
The threats were contained in a letter was sent last week by Attorney Louis M. Ciavarra to the deputies. Among the quoted parts of the letter:
- “Your conduct is nothing more than a transparent effort to hide the inadequacies of your own performance and to interfere with my client’s efforts to improve the Boston Fire Department”
- The “timing of your letter, and in particular linking it to the tragedy of April 15th, is reprehensible”
- It “was a misplaced and frankly outrageous attack intended to strengthen your ability to reject and obstruct Chief Abraira’s efforts to bring the BFD in line with modern fire fighting practices.”
Ciavarra’s letter characterized the letter sent by the deputy chiefs to Mayor Menino on April 26, 2013 as defamatory and threatened to file suit “should any further such conduct occur.”
The letter sparked a strong rebuke by the attorney for the deputy chiefs, Joseph G. Donnellan, who today characterized Ciavarra’s letter as an effort to prevent them from testifying at a Boston City Council hearing scheduled for June 18, 2013.
According to Donnellan, “Each and every one of them saw it that way… They saw it as a direct attempt to make sure [the deputy chiefs] don’t go to that hearing and don’t speak their mind.”
Donnellan issued a threat of his own: “Most assuredly, if the chief’s lawyer follows through on his threat to sue the deputy chiefs of the Boston Fire Department, we will react very strongly and very swiftly.”
Note: If any of my friends from Boston can supply a copy of the letters, I’d be much obliged.
FDNY Facing Gender Discrimination Suits
FDNY is currently facing two gender discrimination claims, one from a medic who alleges she was required to perform CPR for 4 hours straight during a training session. Eileen Dechbery also alleges that she fell in a station while 7 months pregnant, and had trouble getting anyone to assist her.
Fire Law Headlines in FDNY and Dallas
Its been a busy few days from the Fire Law perspective and I am trying to catch up with some of the major headlines from across the country.
The city of New York received a favorable ruling from the 2nd Circuit yesterday in the historic FDNY race discrimination lawsuit. The FDNY had been crucified for the past three years in Federal District Court by the trial judge, Nicholas Garaufis.
Judge Garaufis ruled that not only had the city committed unintentional discrimination (disparate impact… ie. statistical discrimination) in its selection process for FDNY, but that by continuing to use a selection process that showed a disparate impact over the course of decades the city committed intentional (disparate treatment) discrimination.
Based on the unintentional (disparate impact) discrimination, Judge Garaufis invalidated the use of tests that showed a disparate impact, and ordered the appointment of a Special Master to oversee the hiring process. Due to the intentional (disparate treatment) discrimination finding he ordered a more “robust” array of remedial actions, including racial preferences/hiring quotas, $128 million in damages to be paid to minority applicants who were not selected, and the creation of an oversight monitor for 10 years to ensure necessary changes were implemented.
The city did not appeal the disparate impact finding, but rather focused narrowly on Judge Garaufis’ disparate treatment finding. The city also alleged that the judge had lost his objectivity in the case.
The 2nd Circuit agreed with the city that the finding of intentional discrimination (disparate treatment) was improper, and sent that part of the case back for a trial on the merits. The court concluded Judge Garaufis had not lost his objectivity, but ruled he should not preside over the trial.
The court reversed all of Judge Garaufis’ remedies associated with the disparate treatment finding, although the court agreed the oversight monitor should remain in effect for five years.
Since the ruling both sides have been declaring victory. New York City Corporation Counsel Michael A. Cardozo released a statement saying: “We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case.”
An attorney for the plaintiffs, Dana Lossia, countered that “The court monitor will oversee the FDNY’s hiring practices until 2017. That type of order is only issued and affirmed if there is a true serious issue.”
Here is a copy of the ruling. US v City of New York
And briefly…. Dallas Fire-Rescue reached a settlement in the 2009 sexual harassment suit filed by Leanne Siri-Edwards. Siri-Edwards was the civilian executive who was brought in to help newly hire Fire Chief Eddie Burns manage the department.
The lawsuit claimed that “Pervasive, severe, outrageous and obscene acts of discrimination, hostility, disrespect and harassment by [Dallas Fire-Rescue] leaders have slowly dismantled [Siri-Edwards’] reputation and her spirit."
The settlement calls for Siri-Edwards to be paid $390,000.
For my homies… I will get to the North Kingstown ruling by weeks end. I am still trying to digest the ruling… despite the sense of nausea I get reading it… I keep telling myself "we are a country of laws, not men"… but all too often we see judges who let their political ideology corrupt their reasoning… but I digress.
Facebook Post Prompts Discipline for Five DC Firefighters
Five DC firefighters are in hot water over some controversial comments they posted on Facebook.
The controversy began when a firefighter posted a photo of a DC police officer who had just issued the firefighter a traffic ticket. Along with the photo the firefighter included a comment to the effect "This is why we should be careful and take our time getting to incident scenes."
The comment was understood to refer to a March, 2013 incident where an injured DC motorcycle police officer had to wait 20 minutes for an ambulance. Following the initial post, four other firefighters added their thoughts.
Due to the inflammatory nature of the posts, Fire Chief Kenneth Ellerbe transferred the five members to desk jobs while the matter is investigated.
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This will be an interesting case to follow as both the First Amendment and the right of unionized employees to engage in “concerted activities” in social media, are implicated. We will have to await more detail to be able to fully analyze both aspects.
The following is taken from the NLRB’s August 18, 2011 memo on social media, outlining the approach it applies when looking at whether employee speech in social media is protected under either of two tests it applies in such cases: Atlantic Steel and Jefferson Standard. The case involved a car salesman who posted photos and comments about his dealership that his employer took offense to.
Although the employee posted the photographs on Facebook and wrote the comments himself, we concluded that this type of activity was clearly concerted. We found that he was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when [coworkers] raised their concerns at the staff meeting. Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. …
Atlantic Steel is generally applied to an employee who has made public outbursts against a supervisor, while Jefferson Standard is usually applied where an employee has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties.
Applying Atlantic Steel, we found that the employee’s Facebook postings … were not so opprobrious as to lose the Act’s protection. The activity concerned a subject matter protected under Section 7. Further, although the activity was not provoked by any unfair labor practice committed by the Employer, the nature of the outburst was much less offensive than other behavior found protected by the Board. …
Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management. We found it irrelevant that the postings did not clearly indicate that they were related to a labor dispute given that they were neither disparaging nor disloyal.
UPDATE: May 15, 2013
Jury Awards Two Camden Firefighters $596k for Discrimination
Two Hispanic firefighters from Camden have been awarded $596,000 by a New Jersey jury for discrimination.
Firefighters Andres Nieves, 48, and Samuel Munoz, 34, claim they were subjected to a hostile work environment and they were unfairly passed over for promotion to captain in 2009 because they are Hispanic.
Back in 2009 Nieves and Munoz were next up on the promotion list when it expired. There were vacancies at the time but the promotions were not made until a new list was established.
Among the other allegations according to Philly.com, Munoz claims at fires he was unfairly required to spend too much time on the nozzle without a break. [Did I really say that with a straight face…]
Last Thursday, a state court jury awarded Nieves $390,000 in damages and Munoz's $206,000. The awards were intended to compensate the firefighters for lost wages, compensation for retaliation, and damages for having to work in a hostile environment.
Chicago Settles Sex Discrimination Suit Over Abilities Test
A settlement has been announced in the 2011 gender discrimination case involving the Chicago Fire Department.
The suit, Vasich v. City of Chicago, alleged that the department’s physical abilities test unlawfully discriminated against women because it had a disparate impact on women candidates and was not sufficiently job related.
The lead plaintiff, Samantha Vasich, claims she rigorously prepared for the test, including hiring a personal trainer to assist her, to no avail. The class action suit was filed in federal court.
Attorney Marni Willenson, who represents the plaintiffs, said that under the settlement 138 women who previously failed the physical abilities test will be allowed to reapply or receive a portion of a $2 million payment.
As part of the settlement the city has agreed to adopt the Candidate Physical Ability Test (CPAT), developed by the IAFF.
Despite the fact that the settlement still must be approved by the city council and the judge, the women have been informed that may reapply beginning Monday, May 6, 2013
It is unclear from the news reports whether this settlement will resolve the 2012 suit Godfrey vs. City of Chicago. That suit was brought by twenty African-American female firefighters who where granted a preference under the Lewis v. City of Chicago (race discrimination) settlement, but failed the physical abilities test. All twenty Godfrey plaintiffs are plaintiffs in the Vasich case.
First Amendment, Fire Scene Photos and Road Closures
Today’s burning question: I live in a rural area where it is common practice at vehicle accidents and fire scenes for the road leading to the scene to be shut down by fire police (members of the fire department who are peace officers). Because this is a rural area the road may be shut down a mile or more away from the incident so that traffic may be diverted onto an alternative routes.
Do fire police (or anyone for that matter) have the authority to stop someone from passing them for the purpose of photographing the incident in cases like this (they do not let the public through typically)? Would this be considered a legitimate exclusionary zone, considering the distance from the incident or would it violate the photographer’s First Amendment Rights?
Answer: Great question in light of our recent First Amendment discussions.
If the road is closed and traffic is diverted a mile from the scene, but local traffic is allowed to proceed past the fire police, then it would probably violate the photographer’s First Amendment Rights to exclude him/her from being allowed to proceed closer to the scene.
If the road is closed to ALL traffic (even local traffic) due to safety concerns – or even due to operational work zone concerns such as congestion, hose lines, tanker shuttle operations, etc., then photographers could be prevented from proceeding by vehicle. The fire police would not be able to stop them from parking outside the traffic exclusion zone and proceeding on foot, unless there is a safety issue or work zone concern.
Where a department could get themselves in trouble is if they use safety or the work zone exception as a pretext to exclude photographers, reporters, or even members of the public from covering a newsworthy event. The First Amendment’s protections to extends to everyone, not just photographers or the media.
Posted in Burning Question, Constitutional Rights, First Amendment, Volunteers
Arbitrator Overturns Demotion in Miami Dade Facebook Rant Case
Miami Dade’s Brian Beckmann is once again a captain, courtesy of a long awaited arbitrators ruling handed down today.
Just about a year ago, the case made news when Captain Beckmann posted some remarks about the Trayvon Martin shooting case that many took to be racist. The remarks themselves did not reference race but in the context of the thread were understood by some to be offensive. For the record those remarks were:
"I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents."
While the remarks were initially shared with a limited number of his Facebook friends, an “offended” co-worker of Captain Beckmann’s forwarded the post to others causing the statement to go viral.
Riding a wave of public anger over the posting, Miami Dade Mayor Carlos Gimenez directed Fire Chief William W. Bryson to terminate Captain Beckmann. Chief Bryson felt a 14 day suspension was more in order but relented to the demotion when he realized his own job was on the line.
The arbitrator’s ruling issued today reversed the demotion and imposed a 14 day suspension concluding that the Mayor exceeded his authority in dictating the punishment which by law was delegated to the Fire Chief.
The Mayor made the decision to demote Mr. Beckmann, and Chief Bryson carried out the Mayor’s decision by signing the demotion letter. Chief Bryson did so only because he believed that he had no discretion to do otherwise. …
The Arbitrator deems it self-evident that the [city’s personnel] directives – that [dictate that] the demotion decision must be made by a Department Director – refers to who must make the decision and not to who must sign the paperwork. The latter without the former would be an empty clerical gesture, unworthy of memorialization in the CBA. …
Under CBA Article 4.8, Chief Bryson alone was to have made the decision to demote…
[T]he Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent….
In reinstating Captain Beckmann the arbitrator also awarded him back pay for the nearly eleven months he was paid at firefighter’s rate.
Here is a copy of the ruling: Arbitrator's Decision – Beckmann Facebook Posting Demotion
I have to admit, I am somewhat disappointed that the case focused solely on the role of the mayor in overreaching the fire chief, and not on what is a more important issue: the First Amendment rights of an off duty firefighter to discuss a non-work related matter of public concern as a private citizen.
Perhaps that will have to await a civil suit.
Illinois Sexual Harassment Suit Removed to Federal Court
An Illinois sexual harassment case originally filed in state court, is now headed to federal court along with some nasty allegations.
Lieutenant Terri Simone Lorenz of the Orland Fire Protection District claims that her sexual harassment problems began shortly after Fire Chief Bryant Krizik and Deputy Chief Joe Madden were placed on administrative leave in May, 2011. She alleges that the newly appointed acting fire chief, Raymond Kay, and Battalion Chief Nicholas Cinquepalmi embarked on a malicious campaign to drive her from the department.
Quoting from the complaint:
Defendants subjected Simone Lorenz to a long standing pattern of discrimination based on her sex (female), retaliation because she complained, and created and perpetuated a hostile work environment, including but not limited to the following:
a.Maintaining pornographic, sexually graphic, and other inappropriate material in the women’s bathroom and in other places in the fire house;
b.Making derogatory comments about women, including about Simone Lorenz, other women firefighters, and other women generally;
c.Singling Simone Lorenz out on drills;
d.Shunning and ostracizing Simone Lorenz and encouraging other firefighters to do the same, which for a firefighter can be a safety issue on fire calls, which are inherently dangerous;
e.Spreading malicious and sexually based rumors about Simone Lorenz;
f.Subjecting Simone Lorenz to unwarranted scrutiny, criticism, and false allegations;
g.Subjecting Simone Lorenz to a notice of interrogation based on false and malicious accusations and without cause, when other employees were not subject to interrogation for similar or more egregious allegations against them;
h.Subjecting Simone Lorenz to unwarranted disciplinary action, and discipline for which male employees were not subjected to for far more egregious allegations made against the male employees; and
i.Denying Simone Lorenz assignments and special projects that she had previously done.
The six-count, 46 page complaint includes some 199 paragraphs, alleging gender discrimination under state and federal law, hostile work environment, retaliation under the Illinois Human Rights Act, discrimination on the basis of union affiliation, and Constitutional violations (42 USC 1983) of the Equal Protection Clause and the First Amendment.
Included in the specifics of the claims:
- Chief Kay initiated an unwarranted investigation into whether Simone Lorenz cheated on her promotional exam even though she was promoted in 2009, two years before he became the acting chief. The investigation did not result in charges and Simone Lorenz insists the allegations were fabricated.
- Simone Lorenz received a one day suspension for “giving the finger” to another lieutenant while both were off duty at a union function. The charge was later reversed by an arbitrator who heard testimony that included:
- [Chief Kay] admitted that he had never recommended or issued discipline for that kind of conduct – except for against Simone Lorenz.
- Defendant [BC] Cinquepalmi gave “the finger” to Simone Lorenz’s entire crew during roll call, and was never disciplined
- Defendant [BC] Cinquepalmi instructed [the other lieutenant] to document the incident, so that Defendants could then charge Simone Lorenz with misconduct and discipline, demote her, or fire her from the District
- Management admitted that giving “the finger” to one another commonly occurs “on duty” in the firehouse
- Simone Lorenz was suspended for 1 day for sending an email to “all users” (subsequently reversed by an arbitrator after it was revealed there was no rule that prohibited it and that others who did the same thing were not disciplined).
- Repeated requests for help from human resources went largely ignored.
The case was originally filed in Cook County Circuit Court, and was removed to federal court at the request of the Fire Protection District.
Here is a copy of the complaint. Complaint
While there are a number of troubling aspects to the allegations in the compliant, there is one issue that stands out to me that is worth discussing from a leadership perspective: Lt. Simone Lorenz made repeated allegations that male subordinates were rude and disrespectful towards her, and that Chief Kay and Cinquepalmi did nothing to address the insubordination when told.
Who bears the responsibility for this, Lt. Simone Lorenz or the chiefs? Is it enough for a lieutenant in this situation to claim that “they” know about it?
Washington Firefighters Victorious In Retaliation Suit
Seven firefighters from Pullman, Washington have been awarded $1 million in damages in a mind-boggling case worthy of a novel, if not a movie. The case included allegations of a workplace affair, vindictive retaliation, sexual harassment, an officer asking subordinates to provide naked photos of their wives, and counter allegations of a vengeful witch hunt by city officials against union officials.
The lawsuit was brought by Captain Eric Reiber, president of Pullman Firefighters IAFF Local 1892, and six other members who claim they were wrongly disciplined for standing up for Captain Reiber. The suit alleges due process violations, First Amendment violations, conspiracy, defamation, false light privacy violations, intentional infliction of severe emotional distress (outrage), and a state law retaliation claim.
Captain Reiber alleges that one of his subordinates, a female, was having an affair with a married firefighter and that the relationship was creating turmoil in the workplace. When he reported the affair, the pair fabricated allegations of misconduct by Captain Reiber. The fire chief and the city allegedly seized on the allegations as an opportunity to weaken the union’s bargaining position and retaliate against Captain Reiber for his past union activities.
The 28 page complaint can be downloaded here – in two parts. It is a very interesting read.
Part I Reiber v Pullman -1.pl
Part 2 Reiber v Pullman -2.pl
Between the allegations and counter allegations, we will never know where the truth lies. However, the case points out the importance of conducting a thorough and impartial investigation when firefighters are accused of misconduct.
Among the mistakes made by the Pullman Fire Department in investigating the allegations and imposing discipline – at least according to the complaint:
- The fire chief instructed a member to prepare a written statement implicating Captain Reiber. When it did not provide “sufficiently negative” information, the chief directed the member to redo the statement incorporating negative comments the chief supplied.
- The fire chief and the city’s investigator developed a list of “highly inflammatory and suggestive” questions that were given to a large number of employees about the Captain Reiber “making sexual comments and leering overtures to women”. The questions together with his suspension created the impression “that City officials already held evidence of serious wrongdoing”. One question in particular "Have you or anyone you know ever been requested to provide Captain Eric Reiber with sexually suggestive photos?" allegedly defamed Captain Reiber. The questioning of the employees coincided with contentious contract negotiations.
- When Captain Reiber’s accusers made their claims the investigators did not require them “to provide any specifics as to what was said, or when” and the city “exercised no diligence whatsoever in ascertaining the context or assessing the truthfulness of these charges. Their failure to properly investigate was willful and malicious.’
- At Captain Reiber’s disciplinary hearing on the original charges the city “refused to allow testimony from the many Local 1892 members present and announced that they would accept only written submissions in support of Reiber.”
- Following the hearing the city sent the union a letter threatening “members with discipline should they question the allegations” by submitting written statements in support of Captain Reiber’s version of the events.
- During the grievance arbitration that followed Captain Reiber’s demotion and discipline it was disclosed that the city “willfully withheld … a document seminal to the investigation …. The City's willful concealment of evidence constitute[d a] deprivation of Reiber's due process rights”
- After disciplining Captain Reiber for his original alleged misconduct, the city then took disciplinary action against him and six firefighters who submitted written statements on his behalf alleging that Captain Reiber’s defense – which contradicted the allegations of his accusers – constituted unlawful retaliation against the accusers.
The six day jury trial in US District Court ended with a verdict in favor of Captain Reiber for $325,800 and $135,000 each to Rudy Fisher, Christopher Volk, John Gollnick, Jason Wilkins and Christopher Wehrung. The jury delivered the verdict on April 2, 2013.
The city of Pullman and the estate of Fire Chief Pat Wilkins were held liable. Chief Wilkins passed away last year while the case was pending. Other city officials, including the city’s HR director who served as the primary investigator, were not held personally liable.
For those who have been through the Fire Department Administrative Investigations and Enforcing Discipline Program, this case is certainly one to study for your ongoing professional development. Many of the best practices we discuss in class were not followed and the consequences are evident in the verdict.
First Amendment and the Press’s Right to Take Photos
I received a question that was posted as a comment to one of the stories on firefighters interfering with the public’s right to cover news worthy events. I have paraphrased what was asked… and turned it into today’s burning question:
Is safety a legitimate reason to exclude the press from parts of an emergency scene? Excluding the public, yes, but I don't think safety should be grounds for excluding the press. According to all of the PIO classes I have attended safety cannot be used as a reason to exclude press. PIO's are being told that the only exclusions allowed for the press (leaving out the question of "who is the press") are (1) private property (trespass), (2) interference (reasonable work zone) and (3) exclusion from a crime scene.
Not that I don’t believe you, but is there a statutory provision or case law that you are using when you tell us we can exclude the press because of safety concerns?
Answer: It sounds to me like members of the press may have been involved in teaching your PIO classes, which is entirely understandable. They have an invaluable perspective to share with the fire service – and we need to listen. However, along with that perspective comes a certain bias in favor of the media that the law does not share.
So let me get this straight: according to these “instructors” we cannot deny the press access to a location based on safety concerns? Seriously? That means I could be advancing a hose line into a structure and have a news camera team along side of me? I cannot order them to stay outside? Or entering a hazmat hotzone in level A we might find a cameraman sauntering in? And we’d have to rely on the crime scene or work zone exclusion? I’m not even sure we can enforce the trespass exclusion – that is up to the property owner. What if the property owner gives the news team permission to trespass? Seriously? Your instructors told you we cannot stop the press over safety concerns?
Let’s assume your “instructors” are correct (they are not but play along). The Supreme Court has made it abundantly clear – the right to film and cover the news is not limited to the media – it extends to everyone … EVERYONE… so if we have to allow the media to go somewhere that is unsafe… then the public has the same right… an 18 year old with an iPhone camera has the exact same rights to cover the news as a fully credentialed NBC news team.
OK… enough of the fun stuff… let’s get to the law. The issue is really cut and dried. We can establish and enforce a safety zone for both the public and the press. In Branzburg v. Hayes, 408 U.S. 665 (1972) the US Supreme Court said “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” In other words, the press’s right of access is no greater that the public’s right of access. That means if we can deny the public access to a certain area out of concern for the public safety, we can deny it to the press as well.
If you are following this discussion… you will notice another interesting question is raised: if we give the press access to a scene (think the TV show COPS), then can any 18 year old with an iPhone demand the same access??? …. The answer to that is going to have to wait til next time.
Phoenix Deputy Chief Claims Harassment and Retaliation
A deputy chief from Phoenix, Arizona has filed a rather unusual sexual harassment suit against the department: he claims that he was harassed by members and retaliated against by the department because he reprimanded officers who allowed sexually inappropriate drawings and items to be displayed in a fire station.
The case began in November, 2009, when Deputy Chief Frank Cheatham observed “several inappropriate, sexually suggestive drawings and items—specifically, two depictions of a penis and testicles—openly displayed in the workplace at Fire Station 1.” At the time Chief Cheatham was the South Side Shift commander, in charge of roughly 440 firefighters. He “admonished the supervisors at Fire Station 1 that such drawings were inappropriate and would not be tolerated in the future.”
Thereafter, Chief Cheatham was informed he was no longer welcome at meals at the station, and that “the firefighters at Fire Station 1 would never trust Chief Cheatham’s assistant again and considered him to be a spy for Chief Cheatham.”
Chief Cheatham claims that he then subjected to harassment, including:
- “a t-shirt bearing another drawing of a penis and testicles [being] draped over a piece of gym equipment” where he was working out;
- “a large brown envelope in interoffice mail containing two small pieces of pasta, one of which resembled a penis and the other of which resembled a vagina. … The piece of pasta resembling a vagina had Chief Cheatham’s first name (“Frank”) written on it.”
- “rumors … that he would be removed from his position as Deputy Chief Shift Commander of South Shift Command.”
In March, 2010 Chief Cheatham was involuntarily transferred to the safety division, an assignment that he referred to as having “less favorable working hours … than the hours that he enjoyed in his position as Deputy Fire Chief Shift Commander of South Shift Command… and far less prestige…”
The complaint characterizes the transfer as retaliation, and demotion. It claims ‘The City of Phoenix Fire Department is engaging in a pattern and practice of retaliating against its employees who complain of discrimination in the workplace…. [and that the] harassment and retaliation summarized above had a substantial negative impact on Chief Cheatham's employment and psychological wellbeing and continue to do so.”
Here is a copy of the suit, filed last week in US District Court in Phoenix. Cheatham v Phoenix
Another First Amendment Issue
I wanted to follow up on Dave Statter’s post about the Miami Dade helicopter video and the possible violation of the photographer’s First Amendment Rights.
From a legal perspective – everyone – all of us – have a Constitutional Right to cover the news. The right is not limited to members of the press, but extends to everyone.
Included in that right is the right to photo and video things that happen in public, and particularly the right to film government employees doing their jobs.
When a government employee interferes with the exercise of that right, it violates the First Amendment rights of the photographer. Anyone who violates a photographer’s First Amendment rights could be facing a costly lawsuit in federal court.
Having said that, there are some things we as emergency responders are allowed to do with regard to photographers. We are allowed to create safety zones to protect members of the public. We are also allowed to establish reasonable work zones so that members of the public are not interfering with our operations.
These safety and work zones cannot be established just for photographers. They have to be zones that all members of the public are excluded from. Once they are established we can require that photographers remain on the side of the line where the public is allowed.
The video certainly shows how things can become ugly when the establishment of those zones is not made clear. I am not going to speculate on who was right or who was wrong in this case. Take away number one is – we need to avoid getting in this kind of situation in the first place!!!!
Take away number two is once we find ourselves in this situation we need to have some prepared language to use to explain what we are doing and why… such as “Sir, I need you to step back for your own safety… that prop wash could harm you. We need to move everyone back. This is for your own safety”.
Most professional photographers and many amateur photographers are well versed on their First Amendment rights – and know once you mention safety… and enforce the safety zone to everyone… they have to comply. Anything short of that is likely to result in some pushback as was the case here. “Because I said so”… is probably not a satisfactory response when someone’s Constitutional Rights are involved.
Posted in Constitutional Rights, First Amendment
Two Feuds in the Fire Law News
There are two fire department feuds in the fire law news today, one in Louisiana and the other in Pennsylvania.
In Louisiana, a dispute between elected officials in two communities threatens to disrupt emergency services in the City of Broussard.
Lafayette City-Parish President Joey Durel says that if Broussard Mayor Charles Langlinais refuses to drop a lawsuit over the annexation of a golf course, he will block the renewal an agreement for the Lafayette Fire Department to provide dispatch services for the Broussard Fire Department.
The agreement is set to expire at the end of April, and will potentially leave residents of Broussard with no way to obtain fire and rescue services.
The political finger pointing is going hot and heavy. Mayor Langlinais accuses President Durel of playing politics with peoples safety, and his attorney Gerald deLaunay told reporters "By trying to deny emergency fire service to family homes, schools and nursing homes, Mr. Durel and those who support him show their willingness to sacrifice human life for political reasons."
Not to be outdone President Durel replied "There is no health and safety issue here. … Anyone who says that is distorting the truth to the citizens of Broussard. If they truly believe there is a health and safety issue and they don't drop the lawsuit, that should outrage the people of Broussard. Life is full of choices. Their choice is lawsuit or services."
Politics, Louisiana style. Here is more on the story.
In Pennsylvania, an ongoing dispute in Bensalem Township made its way into federal court when a former fire chief and his son filed suit against township officials alleging false arrest, malicious prosecution, and violation of constitutional rights.
The suit was filed by David Jerri Sr., the former chief of the Union Fire Company, and his son, David Jr., who was charged with fraud over an alleged fire department workers comp claim. He was acquitted of all charges.
The men accuse Bensalem Township director of public safety Frederick Harran, of directing police to fabricate a story to substantiate the criminal charge. The suit also alleges that Harran twice shut down the fire company termorarily.
Posted in Civil Suit, Constitutional Rights, Municipal Liability, Politics, Volunteers
NJ Police Union President In Hot Water Over Rap Video
So it is not a fire story… but the issues are all too familiar: Do public employees have any First Amendment Rights… and if so do they include the right to artistically express oneself?
View more videos at: http://nbcnewyork.com.
Georgia Firefighter Settles Sexual Harassment Case for $350k
There has been a settlement in the case of a Peachtree City, Georgia firefighter who alleged that her fire chief had pressured her to have sex with him.
As we reported last December, Peachtree Fire Chief Edwin Eiswerth was accused of repeatedly propositioning Martine Piers. Within hours of the allegations becoming public, Chief Eiswerth announced his retirement effective January 1, 2013.
The settlement calls for Piers to receive $350,000, with $300,000 being paid by Georgia Interlocal Risk Management Agency (GIRMA), the city’s insurer, and $50,000 paid by the city.
In exchange, Piers has agreed to dismiss her complaint with the EEOC, and relinquish her right to file future lawsuits over the matter.
Ohio FD Tagged for $1.7 Million in Sex Discrimination Suit
An Ohio jury has awarded a former female firefighter $1.7 million for sex discrimination. They also ordered her Lieutenant to pay $75,000 for his role in the case.
Raechel Sterud, 32, alleged that Orange Township Fire Department and her officer, Lieutenant Keith Myers, discriminated against her leading to her termination in January, 2008. She was still on probation at the time.
Sterud claims that she complained to Lt. Meyers about being harassed, and that not only did he fail to address it, he maliciously recommended her termination prior to her completing probation and having union protection.
In the trial, a key piece of evidence was an email from a firefighter to Lt. Meyers that warned that Sterud planned to file a formal complaint once she had union protection. Sterud was terminated two weeks prior to her completion of probation.
There was also testimony that:
- during sexual-harassment training, videos were shown on a split screen television so firefighters also could watch a NASCAR race;
- one firefighter told other firefighters that he transferred to work with Sterud so he could sleep with her;
- the same firefighter moved his sleeping quarters closer to Sterud’s and persisted in using the fire station’s womans’ bathroom.
The case was tried last week with the verdict being rendered this week.
Florida Firefighter Gets Workers Comp Limitation Overturned
A St. Petersburg, Florida firefighter has successfully challenged a pro-employer worker’s compensation reform that limited the duration of temporary disability benefits to 104 weeks.
Bradley Westphal was injured in the line of duty on December 11, 2009. He ran out of temporary disability comp benefits two years later, and was medically unable to return to work. Because he had not reached his maximum medical improvement he was deemed ineligible for permanent disability benefits. As a result he received no compensation despite the fact that his disability was directly attributable to a line of duty injury.
Westphal appealed the denial of his permanent benefits arguing that the 104 week limitation on benefits as unconstitutional under the Florida state constitution. The Article I, Section 21 of the Florida constitution states:
Access to courts. The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
Here is the court’s analysis in its own words:
Westphal, a firefighter and paramedic, injured his back and knee in the course of his employment. Westphal suffered severe injuries, resulting in nerve damage in the legs and requiring spine surgery and other medical treatment… .
The [fire department and the workers comp insurer] accepted the injury as compensable and paid Westphal temporary total disability benefits… .
While recovering from the most recent surgery, and while on a total disability status as declared by his workers’ compensation doctors, Westphal’s entitlement to the 104 weeks of temporary total disability benefits expired… . At this point … Westphal was incapable of working or obtaining employment, based on the advice of his doctors and the vocational experts that examined him.
In an attempt to replace his pre-injury wages that he was losing because of his injuries, approximately $1,500 per week, Westphal … filed a claim for permanent total disability benefits—a classification of benefits available to workers who have a disability total in quality and permanent in duration.
[The workers comp court] properly denied Westphal’s request for permanent total disability benefits, finding that because Westphal had not reached maximum medical improvement, it was too speculative to determine whether he would remain totally disabled from a physical standpoint after his maximum medical improvement status was reached…. [The court] acknowledged, Westphal fell into the “statutory gap” for indemnity benefits: He could no longer receive temporary benefits, and he was not yet eligible for permanent total disability benefits…. “
When the 104-week limit on Florida’s temporary total disability is compared to limits in other jurisdictions, it becomes readily apparent that the current limit is not adequate and does not comport with principles of natural justice…. The overwhelming majority of jurisdictions—in excess of forty—allow a minimum of 312 weeks, three times the benefits provided to Florida’s injured workers, up to a maximum entitlement of unlimited duration (i.e., for the duration of disability). Only five jurisdictions limit disability benefits to 104 weeks, and one of those has enough exceptions to allow for the receipt of disability benefits for up to seven years. …
The natural consequence of such a system of legal redress is potential economic ruination of the injured worker, with all the terrible consequences that this portends for the worker and his or her family.
A system of redress for injury that requires the injured worker to legally forego any and all common law right of recovery for full damages for an injury, and surrender himself or herself to a system which, whether by design or permissive incremental alteration, subjects the worker to the known conditions of personal ruination to collect his or her remedy, is not merely unfair, but is fundamentally and manifestly unjust.
We therefore conclude that the 104-week limitation on temporary total disability benefits violates Florida’s constitutional guarantee that justice will be administered without denial or delay.
Further, we hold that there is simply no public necessity, much less an overpowering one, that has been demonstrated to justify such a fundamentally unjust system of redress for injury. In fact, workers’ compensation insurance premiums have declined dramatically in Florida since 2003, falling 56%. …
[T]he 104-week limitation is not an adequate substitute for the benefits provided to seriously injured workers in 1968, and no public necessity can justify the unjust nature of the system of redress available today. …
In striking down the 104 week limitation, the court referred to the provision as “draconian”, and rejected the Solicitor General’s argument that the limitation was a “public necessity” to help employers manage insurance costs.
The decision was issued last Thursday, February 28, 2013. Here is a copy of the ruling. Bradley Westphal v.City of St.Petersburg
Posted in Civil Suit, Constitutional Rights, Line of Duty, Workers Compensation
YCMTSU New Jersey Secretary Claims Officer Made Death Threat
A fire district secretary in New Jersey has filed suit against the district, a volunteer fire company, a former commissioner, a current commissioner and a deputy chief alleging she has been sexually harassed and had her life threatened, all because she reported the former district official for watching child pornography and masturbating in her office.
The bizarre suit was filed by Deborah Nelson, 53, last week. It names the Board of Commissioners of Franklin Fire District 1, the Millstone Valley Fire Department, former Fire Commissioner Robert R. Scheer Jr., Fire Commissioner James Wickman and Millstone Valley Deputy Chief Douglas Walp as defendants.
The suit is Nelson’s second harassment suit against the district. She filed the first one back in 2009, shortly after former Commissioner Scheer was accused of watching child pornography and other inappropriate conduct. In 2011 as part of a settlement, Scheer resigned and Nelson received a $150,000 settlement .
The second suit was prompted by what Nelson claims is a workplace that continues to be sexually hostile and retaliatory against her. Principal among the specific allegations is a death threat allegedly made by Deputy Chief Douglas Walp in December 2011.
According to myCentralJersey.com, Chief Walp was accused of saying: “The (expletive deleted) better watch her (expletive deleted) or I’ll put a bullet in her head and burn the place down.” Chief Walp was a captain at the time.
Nelson reported Chief Walp’s threats to the Franklin Township Police Department, who investigated and declined to press charges.
UPDATE: Here is another story about the case. It includes a number of additional disturbing details that I won’t go into here – but read them for yourselves.
I’m Suing, You’re Suing, We’re All Suing In Utica
A new lawsuit has been filed in the aftermath of a fire in Utica, New York in 2009 that claimed the lives of four people. By my count, this is at least the sixth suit to come out of the blaze… and I freely admit I may have missed a few.
The fire at 102 James Street on September 20, 2009 killed Bruce Bush, 41; Douglas Crane, 24; Glenard Drake, 44; and Terry Singh, 28.
The first suit was filed by the landlord, Timothy Klotz, who alleged the fire department was negligent in fighting the fire, defamed him, and caused him to have a stroke and PTSD. Klotz is seeking $4.5 million in damages. In the second suit, Klotz sued his insurance company.
The third suit was filed by the city of Utica against Klotz for the cost of demolishing his building after the fire, an estimated $130,000.
The fourth suit was filed by the families of three of the deceased victims against the city and Klotz in state court. The fifth suit was brought last September by the families of all four deceased victims who filed a federal civil rights suit against the city and Fire Chief Russell Brooks alleging a denial of due process (deliberate indifference).
The sixth and most recent suit was brought in state court by the last remaining victim’s family. Here is more on the story.
I knew I should have taken the New York bar exam…. I wonder if Brad Pinsky has a spare office….
Footnote: Unfortunately I could not ascertain which of the families filed the latest suit… Apparently it was not “newsworthy” enough to be included in the news reports… Isn’t it amazing the details some reporters choose to leave out… For the record I spent 2 hours trying to track down that “minor detail” – if even the names of the three families who filed suit previously was listed somewhere – to no avail.
I did find two complaints for the complaint junkies out there:
Bush, et al v. City of Utica, et al Bush v City of Utica
Klotz v. City of Utica, et al Klotz v City of Utiica
Second footnote: the six cases listed above are not numbered in the order in which they were actually filed – they are listed in the order that I added them to my database. Sorry for any confusion. I have no way to determine the order they were filed in.
Louisiana Discrimination Case Wraps Up 32 Years Later
How long is too long? When it comes to the duration of consent decrees intended to address discriminatory practices in fire departments, that is a question that many firefighters ask. In the case of Leesville, Louisiana it took 32 years for the city and the US Department of Justice to finally put an end to a discrimination suit.
The action dates back to December 9, 1980 when the DOJ filed suit alleging that the police and fire department’s’ hiring practices violated Title VII of the Civil Rights Act of 1964. The city and the DOJ entered into a consent decree intended to address concerns over the hiring of African Americans and females.
Last November the DOJ announced that it was lifting its demand for a consent decree noting that the hiring practices in both departments had improved significantly. Last Wednesday, the city announced that the case had been finally settled, ending the 32 years of court oversight.
Leesville’s mayor, Robert Rose, commended the work of both departments and the leadership of Police Chief Greg Hill and Fire Chief Dewaine Lawson, in bringing the matter to a close.
Facebook Arbitration Begins for Miami Dade Captain
It has been a long wait, but Miami Dade Fire Captain Brian Beckmann finally had his day in court… or more correctly his day before an arbitrator… to review his Facebook related demotion.
Last spring, Captain Beckmann posted a comment that sparked outrage in the community still raw from the tragic shooting incident of a young African American, Trevon Martin, in Sanford, Florida. Amidst demands for his termination, Captain Beckmann was demoted back to firefighter.
The arbitration began on January 14, 2013 and is expected to continue on February 5, 2103. Some interesting facts came out at the first hearing, raising some pretty tough questions.
First of all, Captain Beckmann’s comments were posted on his personal Facebook page while he was off duty using his home computer. At the time he was not identifiable as a member of the department. Can/should a firefighter be disciplined for comments posted in such a manner?
Second, the comments, while offensive, do not specifically reference or denigrate any minority group. Here is the text of his comments: ”I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents.” The lack of a direct reference to any minority group directly contradicts much that has been written about the case that refers to the remarks as blatantly racist.
Third, the comments were posted in such a way that they were only visible to roughly 300 of Captain Beckmann’s friends. The comments only became widely known after another firefighter took a screen shot of them and forwarded them on to a blogger who then publicizing them in an inflammatory way.
One would think based on these facts, that the firefighter who caused the posting to go viral should at least bear some responsibility for what happened. Captain Beckmann’s attorney, Matthew J. Mierzwa, Jr., made that very point to the arbitrator, laying the blame at the foot Captain Faye Davis. “We believe that the issue really arose here because of other employees, Faye Davis in particular, taking that herself in violation of county policy to publish it throughout the community. This is Faye Davis’ manipulation.” Captain Davis has not been disciplined for her role in the event.
The First Amendment aspects of this case are of enormous importance. To date, the US Supreme Court’s analysis of public employees’ right to free speech has been anything but coherent.
On the one hand are the numerous Court pronouncements that public employees do not surrender their basic First Amendment Rights by virtue of their employment, nor are they subject to a “watered down” version of protection. But all too often the end result of the cases belies the rhetoric.
Some of the First Amendment issues that are in play in Captain Beckmann’s case:
Was his speech work related or non-work related. Generally a public employee’s First Amendment Rights are the broadest when discussing matters unrelated to work. Arguments can be made both ways in Captain Beckmann’s case. There are cases that say that public employees do not have the right to “insult those they are hired to serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). Insulting the people you work for can take a case that would otherwise be non-work related and place it back under the realm of being work related.
There are also cases that say that the reason we have a First Amendment is to protect people who say things that will offend people (ie. we don’t need a First Amendment to protect people from saying things everyone agrees with). Consider this: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Isn’t punishing Brian Beckmann for saying what he said essentially telling him what is orthodox? …. Hard questions….
Then there is the question of whether his comments pertained to a matter of public concern. Some will argue yes, the cause of the shooting, problems with urban youth, racial profiling, etc. all are matters of public concern even if you disagree with his conclusion. Others will say no, racism or racial insensitivity has no place in public discourse… and should not be given protection under the First Amendment.
Next is the issue of whether Captain Beckmann made the comments as a private citizen. No doubt the captain believes he spoke as a private citizen when he posted his comments, but we have seen other cases where courts have found grounds to conclude otherwise on even less. See San Diego v. John Roe, 543 U.S. 77 (2004), and Locurto.
And then… if we get that far… we have the test of all tests… the Pickering Balancing Test. Stated as succinctly as humanly possible, that test states: If an employee is (1) speaking on a matter of public concern (2) as a private citizen, he must prove his 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”. Got that? Clear as… mud…
And then there is the role of Captain Davis. Is an employee who is offended by a private comment made by a co-worker, who proceeds to make that comment widely known (in this case to millions of people), entitled to protection by the First Amendment? If so, how can Captain Beckmann be denied that same protection?
Are you starting see the problem we are facing with public employees and the First Amendment? Given the emerging role of social media and the internet – this First Amendment quagmire needs to be addressed. We are not living in the 1800s where someone needs to take out a newspaper ad in order to reach hundreds to thousands of people… nor the mid 1900s where someone would have to take out a television ad to reach thousands to millions. This is the age of the internet and anyone can instantly reach millions just by clicking “send”… or pressing “enter” on a keyboard. The law needs to catch up with the technology.
Captain Beckmann’s case may the be one to help us get some closure from the courts on some of these open questions… It almost makes me hope the arbitrator rules against him so the case can move forward through the courts…. but that would not be fair to Captain Beckmann.
