Here is a follow up to a story we covered two weeks ago. The Tucson captain who was accused of committing lewd acts on a subordinate that led to a $125,000 settlement, has had his rank restored by the local civil service commission following a hearing.

Paramedic firefighter Cody Jenkins claims that he was physically assaulted and harassed three times by Captain Roger Tamietti on November 9, 2012 while working at Station 7. Jenkins filed a $500,000 civil claim against the city in February that was just settled for $125,000.

Captain Tamietti was demoted to firefighter and charged criminally with three misdemeanor counts of assault and harassment.

Yesterday, the civil service commission concluded that the punishment imposed was excessive. Quoting from the Arizona Daily Star:

Tamietti fought back tears while testifying Monday. He said he was "embarrassed" and "ashamed" when he found out allegations were leading to a demotion. But he defended himself throughout the ordeal by saying "horseplay" and "roughhousing" are a normal part of life at a Tucson firehouse, and he never intended to hurt or humiliate anyone.

During his hearing, numerous fellow firefighters' testimony confirmed Tamietti's description of firehouses. Firefighters from paramedics to battalion chiefs who were sworn under oath said roughhousing was part of the culture.

While Tamietti admitted to throwing Jenkins on the couch, he denied ever performing a lewd act.

The civil service commission cited the lack of even one corroborating witness to support Jenkins’ allegations, “dubious” investigative methods employed by those who investigated the allegations, and improper application of the department’s own rules in rendering their decision to restore Captain Tamietti’s rank.

Captain Tamietti still faces the three criminal charges.

More on the story.

Firefighter Paul Way, a 28 year veteran of the Shawnee Township Fire Department, was terminated last December for abusing his sick leave. He was observed to have been drinking beer in a sports bar while off sick on September 12, 2012 and again on September 14, 2012.

The sick leave was taken just days after Way had been demoted from platoon chief to firefighter for what has been characterized by the department as his spreading negative information within the department via emails. He received a written warning about the emails in July of 2012.

Way’s attorney, Fazeel Khan, claims his client was wrongfully terminated over relatively minor disciplinary offenses in retaliation for his complaints about blatantly offensive and discriminatory conduct with the department. He claims that Fire Chief Todd Truesdale is routinely given a “Heil Hitler” salute by members of the department, and was once given a cake adorned with a Swastika. That cake included small figurines that were “marching into an oven”.

Way and his attorney have provided the EEOC with a number of photos of members giving Chief Truesdale the salute (exhibit A, exhibit B), as well as photos of the Swastika cake as proof of what he alleges is occurring. They claim the department discriminates against religious minorities, homosexuals and women.

According to attorney Khan “We believe Mr. Way was targeted, harassed and treated unjustly simply for his opposition to discriminatory practices and a general culture of bigotry rampant at the Fire Department.”

However, platoon Chief John Norris provided an entirely different version of events to reporters from Channel 4 in Columbus earlier this month. Chief Norris claims that  Way was the one who started Nazi salute for Chief Truesdle. Quoting from a transcript of the Channel 4 interview:

Norris: "Mr. Way started this over 10 years ago as a joke against his shift officer, who is now the chief of the department."

Norris also claims that it was Paul Way who instigated the "Heil Hitler" salutes

As for this cake, which is now part of the EEOC complaint, Norris says it is 10 years old. He admits it was made for Todd Truesdale, before he was chief, and claims Paul Way was instrumental in acquiring it.

Norris: "Everybody knew he was not happy at all with that. And chief has told me that right after that, he talked to Mr. Way in regards to that being inappropriate and that was to never happen again."

Way denies Chief Norris’s claims. The EEOC filing is a necessary predicate to filing a discrimination claim in court.

More on the story.

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

Timothy and Jennifer Kolodychak filed suit last week in Westmoreland County Common Pleas Court against Rostraver Township, Rostraver Central Volunteer Fire Department, and Assistant Chief Justin Shawley alleging negligence.

Eight-year-old Logan Kolodychak suffered traumatic brain and facial injuries hat required reconstructive surgery and left him permanently scarred. His mother Jennifer, who was driving at the time, was also injured in the crash. Logan’s 11 year old sister was also in the vehicle and is alleged to have been traumatized but was physically uninjured.

The accident occurred on July 4, 2012 as Chief Shawley was driving a ladder truck on a run. The firefighters on board stated their emergency lights and siren were activated. According to police reports, the ladder approached the intersection where the accident occurred cautiously due to a red traffic light. When traffic was stopped Chief Shawley proceeded slowly through the intersection and was halfway through when the Kolodychak’s vehicle collided with the ladder.

The Kolodychak’s suit claims that Chief Shawley was driving at an unsafe speed, failed to maintain proper lookout, and failed to properly control the vehicle. They also allege the ladder was not responding to a fire or emergency at the time, and failed to use audible warning devices.

Neither driver was cited by police for the accident.

More on the accident.

More on the suit.

The case has been in the news here on several occasions, beginning last year when the town unilaterally increased the hours that firefighters work each week from 42 hours to 56 hour per week.

For those not familiar with labor law 101, any unilateral change in “wages, hours, or other terms and conditions of employment” (unilateral meaning one side imposes the change without negotiating it) is illegal and an unfair labor practice. Changes to  mandatory subjects must be bargained – and wages and hours are two subjects that are about as mandatory as it gets.

The union challenged the move on a number of levels and not surprisingly has prevailed at each. Last December, Superior Court Judge Brian Stern “directed the town to “‘unring the bell … as to wages, hours, and other terms and conditions of employment [and to] go back to the state that existed pre-unilateral implementation.”

Facing a multi-million dollar bill to compensate the firefighters for all the extra hours they were forced to work, plus adding back an entire fourth shift that had been eliminated, the town appealed.

In a ruling last week the Rhode Island Supreme Court reversed Judge Stern on three grounds. First, the court concluded that Judge Stern’s order to “unring the bell” was – and I quote – “an unrequested mandatory injunction”.

The court did not elaborate on how it reached that conclusion the injunction was “unrequested” stating only in a footnote that “At the time the hearing justice issued his decision, the union had not yet filed an answer to the town’s amended complaint. This Court has consistently stated that ‘a party should not be granted relief that it did not request.’”

The court’s other two grounds for the reversal were that Superior Court lacks jurisdiction “to determine what, if any, agreement is in force between [management] and [a] union”, and that Judge Stern’s order was issued without requisite findings and notice to the town.

Did you ever find yourself in a school yard controlled by bullies, and it doesn’t matter what you do, the bullies are going to have their way?

Here is a copy of the ruling for anyone so inclined. Town of North Kingstown v IAFF Loacl 1651

The case has been returned back to Judge Stern for additional proceedings. The State Labor Board is also expected to rule on the town’s unilateral action.

Tagging on to Dave Statter’s extensive coverage of the latest Cleveland indictments.

The city of New York received a favorable ruling from the 2^nd 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 2^nd 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

More on the story.

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.

More on the story.

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.

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.

View more videos at: http://nbcwashington.com.

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

Michael Claude Watson, 45, was the fire chief of the Bangor Fire Department until last year. He allegedly used fire department funds for personal expenses such as cell phones and plans for family members, and personal electronic devices. Allegedly approximately $3,000 worth of cellphones and plans, and $5,000 worth of electronics were involved.

Watson is being held at the Blount County Correctional Facility in lieu of $90,000 bond.

More on the story.

Paramedic firefighter Cody Jenkins claims that he was physically assaulted and harassed three times by Captain Roger Tamietti on November 9, 2012 while working at Station 7.  The three incidents were:

• At about 10:00am when Jenkins returned from a run, Tamietti tackled him knocking him onto a couch where he "forcibly humped and ground" against Jenkins while holding him on a couch.
• Jenkins claims after the first incident, he felt dirty and violated so he took a shower.  He claims that while walking back to his room wrapped in a towel, Tamietti swatted him on his buttocks.
• The third incident allegedly occurred when Jenkins was working on the computer in Captain Tamietti's office. Jenkins said Tamietti came up behind him and rubbed his groin against the back of Jenkins’ head. When Jenkins pulled his head away Tamietti allegedly pulled it back against his groin.

Jenkins filed a complaint against Captain Tamietti and an investigation was initiated. Tamietti claimed he was merely engaging in “horseplay”, denied committing any lewd acts, and said he was just trying to make Jenkins feel like one of the guys.

According to the Arizona Daily Star, the investigation concluded that:

• “Homophobic and racial slurs [are] used frequently by TFD employees.
• “Tamietti once jumped out of the shower naked and surprised a firefighter. He called the firefighter a "meat-gazer" for looking at him.
• “Tamietti exposed himself to another firefighter for no apparent reason.
• “Tamietti and two other firefighters did a gyrating dance in their underwear two to three inches from a firefighter who was making a salad dressing for dinner.
• “Butt-slapping was common.”

Tamietti was demoted to firefighter for acting “inappropriately”.  He is appealing the demotion claiming the penalty is “excessive” and based on exaggerations by Jenkins. He has also been charged criminally with three misdemeanors alleging assault and harassment.

Last February, Jenkins filed a $500,000 civil claim with the city, alleging he "sustained serious and ongoing psychological damages and injuries" and "sustained a loss of earnings and is psychologically unable to go back to work due to his fear of further retaliation."

The claim also alleges Jenkins was bullied and harassed several years ago at Station 7 while on probation. Jenkins claims he was duct-taped to a pole, intentionally tripped by other firemen, and subjected to verbal abuse.

While normally a civil claim is merely a procedural formality necessary before someone can file a lawsuit against a governmental entity, the Tucson city council took up the matter and agreed to compensate Jenkins $125,000

The Arizona Daily Star quoted Councilman Steve Kozachik as saying "These guys need to act like professionals and not adolescents. … It's not summer camp. That childish behavior is costing taxpayers $125,000."

More on the story.