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.
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.
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.
A former FDNY firefighter and now practicing attorney, Peter J. Gleason, has filed a comprehensive, 18-page lawsuit in Federal court against City of New York, FDNY, former Battalion Chief George Belnavis, Lieutenant Edward Boles, Fire Marshal Brian Grogan , Captain Patrick Reynolds, former Fire Commissioner Nicholas Scoppetta and the Uniformed Fire Officers Association alleging that the defendants tried to discredit his campaign for City Council in 2009 by releasing his confidential medical records to the press to show that he spent most of his ten year tenure with the department on medical leave.
The complaint includes a “Preliminary Statement” that explains the basis for the suit and is quoted here at length [Note that the bullet points and the paragraph breaks are mine – added to make it a bit easier to read]:
- Plaintiff is a retired firefighter now admitted to practice law in New York. This action, is based on the New York City Fire Department (FDNY) and its officials’ unlawful search, seizure, and subsequent publication and public dissemination of Plaintiffs confidential medical records and information derived therefrom in retaliation for Plaintiff acting as legal counsel for a plaintiff in an action against the FDNY. The FDNY acts as legal custodian of medical records of former firefighters maintained in a depository in Kings County.
- Firefighters have constitutionally protected liberty and property interests in the confidentiality of their medical records that are protected from unlawful searches and seizures, publications and public disseminations, and deprivations without notice and a meaningful opportunity to be heard. These medical records are confidential and protected from unlawful government search and seizure and public dissemination by federal statute and by the Fourth Amendment to the U.S. Constitution. Additionally, Plaintiff has a property interest in the medical records protected by the Due Process Clause of the U.S. Constitution. Defendants owe firefighters a duty of care to maintain the confidentiality of such records.
- In early 2006, Plaintiff filed a notice of claim against the FDNY and certain of its officers on behalf of William Kregler, who was also a retired firefighter. Kregler claimed that the FDNY violated his First Amendment rights by retaliating against him by terminating his application for appointment to the position of City Marshal because of his public support of Robert Morgenthau who was then a candidate for District Attorney. Kregler v. City of New York, 375 Fed.Appx. 143 (2d Cir. 2010).
- On or around July, 2009, Plaintiff was a candidate for City Council for the First Councilmanic District (lower Manhattan). As part of the process, Plaintiff sought the endorsement of the Uniformed Fire Officers Association. During an interview with officers of that Association, Plaintiff was bombarded with hostile questions regarding his representation of Kregler.
- Shortly thereafter, on or around August 19, 2009, the FDNY unreasonably searched and seized Plaintiff’s confidential medical records without a search warrant. The FDNY then released Plaintiffs medical records to the Village Voice, a supporter of Plaintiff’s principal political adversary. By releasing Plaintiff’s confidential medical records, the FDNY intended to and did retaliate against Plaintiff for speech that is constitutionally protected; inflicted an adverse employment action on Plaintiff; maliciously inflicted extreme emotional, financial and reputational damage upon Plaintiff; and substantially interfered with Plaintiff’s rights of political association, public association, and liberty to effectively represent the individuals and entities of his choice guaranteed by the First Amendment to the United States Constitution.
- The unlawful search, seizure, publication and public dissemination was arbitrary, served no legitimate governmental interest and was motivated solely by a desire to punish Plaintiff for his representation and to serve the FDNY’s political animus and that of individual defendants named in this action. Defendants also republished the Village Voice article to firefighters by forwarding a link via email blast.
- In accessing Plaintiff’s medical records without court authorization and without any legitimate government interest and then publishing Plaintiff’s medical records, the FDNY wanted to punish Plaintiff for his representation of a client and did so, effectively destroying his candidacy and damaging his reputation. The FDNY’ s behavior was extreme and outrageous, warranting punitive damages. Four aggravating factors show an absence of mistake and calculated malice.
- First, the FDNY released the records shortly prior to the election in such a manner that Plaintiff would not have the time to respond to or correct misleading published statements.
- Second, the FDNY released the records to a Village Voice reporter known for vitriolic personal attacks on political adversaries. The FDNY’s leak was a dirty trick that effectively destroyed Plaintiffs political campaign and sent a chilling message to any former firefighter willing to speak out against the FDNY.
- Third, the FDNY’s retaliation against Plaintiff is extreme and outrageous because it shows contempt for judicial proceedings and a willingness to use confidential medical records for unlawful purposes and to reward its officers engaging in such illegal conduct.
- Fourth, the FDNY’s retaliation is part of a municipal policy and a pattern and practice of retaliation against former and current firefighters who exercise their First Amendment and other Constitutionally-protected rights.
The suit alleges HIPAA violations, as well as due process (liberty and property deprivations), First Amendment, and Fourth Amendment violations. It seeks compensatory damages, punitive damages, costs and attorneys fees.
Here is a copy of the complaint filed on August 17, 2012. Gleason v Scoppetta
A state court judge in New York has ordered the city of New York to release copies of a consultant’s report on the city’s 911 system and response times.
The Uniformed Fire Officers Association and the Uniformed Firefighters Association filed suit under the state open records law to obtain copies of the report. The consultant was hired following concerns over the December 2010 blizzard debacle where EMS responses were delayed between 1 to 5 hours, and some patients died waiting hours for ambulances to arrive. In numerous instances patients were transported to the hospital on FDNY fire trucks rather than waiting for ambulances.
The Bloomberg administration sought to block the release of the report claiming it was still in draft form. The city also objected to the unions’ request for not only the most current version of the report, but all the various drafts that had gone back and forth between the consultants and the city.
Attorney Joshua Zuckerberg, representing the Uniformed Fire Officers Association, accused the city of engaging in a “coverup . . . plain and simple”, and argued that by labeling the report a “draft”, the city was attempting to keep it from the public “in perpetuity”.
Manhattan Supreme Court Justice Arthur Engoron overruled the city’s objections and ordered the city to produce all the drafts. The city has until April 16, 2012 to release the reports.
In a long anticipated ruling, Federal District Court Judge Nicholas Garaufis has ordered the city of New York to pay damages to past minority applicants to FDNY a total of up to $128,696,803. The ruling is part of the 2007 discrimination suit brought by the United States and the Vulcan Society alleging decades of discriminatory hiring.
The total amount that claimants could receive will likely be less than the full $128M, because it will be offset by any income that the claimants actually made during the interim years.
Tensions continue to increase between the city and Judge Garaufis. City officials have publically alleged that the judge has abandoned his role as a neutral and become an advocate for the plaintiffs. They have even asked an appellate court to remove Judge Garaufis from the case. In his ruling, Judge Garaufis appointed four special monitors to oversee the awarding of back pay, and ruled that hearings may not be delayed while the city appeals.
Here is a copy of the decision. Damage Order. It is 64 tortuous pages.
In the decision, the judge spent considerable time reviewing the facts leading up to his ruling, including an in depth discussion of the statistical disparity of the (a) pass-fail rates and (b) hiring rates of black and Hispanic candidates. This data led him state: “The court concluded that the evidence for a prima facie case of disparate impact was “overwhelming.””
In stark contrast to the judge’s in-depth statistical analysis of evidence tending to prove race discrimination, the court in just one paragraph summarized the city’s arguments, which were rejected as “nothing more than metaphysical doubts about the nature of statistical evidence that were unsupported in law.” The court also summarily rejected the city’s “business necessity defense”… that written examinations are necessary and written examinations inherently tend to disfavor minority applicants.
Missing from the discussion was any mention of job requirements or applicant qualifications. In other words there continues to be an implicit assumption that, on average, the white applicant pool was equivalent in terms of aptitude to the black candidate pool and the Hispanic applicant pool, and that it was the exam alone that caused the statistical difference between what otherwise are equally qualified groups.
The willingness to accept that assumption seems to be at the heart of much of the out of court rhetoric and debate over the decision. Yet that issue continues to be overlooked in the court’s analysis.
The remainder of the decision focuses of the minutia of how back-pay should be calculated, the identification of various sub-groups among the minority candidates, and the procedure to be followed by the special masters in evaluating and awarding damages. Its a tough read for firefighters and lawyers (and firefighter-lawyers) who lack a degree in statistics…
The Uniformed Firefighters Association of New York has taken the unusual (if not unprecedented) step of ordering its membership to disregard a directive issued by the Fire Department that seeks to limit the posting of “opinions” in fire stations… Yes… no “opinions”… posted in fire stations…. anywhere in the city of New York…
The order in question, identified as DO 89, instructs members to comply with an already existing regulation (Section 19.2.2, 5th Paragraph). The language at the heart of the controversy reads as follows:
“Bulletin boards in facilities shall be used only for official Department business or important information relating to approved Departmental organizations. In addition to applicable EEO restrictions, material presenting opinions or viewpoints is not permitted anywhere in quarters. It does not matter whether such opinions or views concern Department matters or non-Department matters. NO articles/material may be posted from any publications, internet or other sources.”
Here is the Original DO 89: FDNYOrder89
Here is the union’s memo: UFA Memo
The Fire department subsequently released a new policy, but the controversy seems only to have grown. new-fdny-posting
The situation raises some significant First Amendment issues, as well as collective bargaining issues (concerted activities, unilateral changes to working conditions, etc.). Here’s a link to a video on the story, including some interesting comments by the union’s First Amendment lawyer.
What do you think. Will the no posting of opinion rule fly? Or how soon before the rule is overturned?
An FDNY Fire Inspector has been charged in a massive bribery scheme involving Brooklyn day care centers.
Inspector Carlos Montoya was arraigned last Friday in Federal District Court in Manhattan, and released on $100,000 bond. The investigation, dubbed “Operation Pay Care”, involved a joint investigation led by the U.S. Attorney’s Office for the Southern District of New York and New York City Department of Investigation. It exposed a 1 million dollar scam affecting a city subsidized day care program.
Montoya’s role in the scheme was to ignore safety violations so that permits for the day care centers could be issued or renewed. He worked for the FDNY as a Fire Protection Inspector since 1993 and served as Supervising Inspector since 2003. He oversaw fire inspections of all day care centers in the City.
Montoya has been charged Federally with conspiracy to commit mail fraud and conspiracy to receive bribes in connection with a federally-subsidized program. No word if he will be charged with any state law crimes.
Five FDNY electricians have filed a race discrimination lawsuit against three coworkers and the FDNY. The 36 page complaint alleges that supervisors and coworkers subjected the employees to ridicule, scorn, threats, and retaliation, and that they were denied overtime and promotional opportunities.
The case made headlines over a year ago when the plaintiffs, Gregory Seabrook, Ismael Ortiz, Edward Pitre, Joe Adams, and Dudley Placide, filed their administrative complaints with the New York State Division of Human Rights. At that time Seabrook alleged that a noose was left near his locker, and they all claimed that they were being harassed because of their race. Seabrook, Adams and Placide are black, while Ortiz and Pitre are Hispanic.
The five allege that two supervisors, Robert Zerillo and John Forrentino, and a co-worker, Richard Cassidy, were among those responsible for the harassment. All three were named personally in the suit as defendants, as was the FDNY. The suit was filed on December 20, 2011, less than 2 weeks after they received their right to sue letter from the EEOC.
The complaint sets forth a number of detailed allegations, including:
- Supervisors not posting information about promotional opportunities
- Over $200,000 in overtime being worked by a white supervisor and his son-in law, that should have been distributed among all employees
- Collective bargaining agreement violations
- Excessive work demands, threats, ridicule, and verbal abuse
Here is a copy of the complaint: Seabrook v FDNY
The suit joins several other race related suits pending against the FDNY, including:
- A major suit by the EEOC and the Vulcan Society alleging race discrimination in hiring that has prompted major changes in the hiring process for FDNY;
- Suit by the wife of recruit Jamiel Sears who died during training that alleges discrimination;
- Suit by EMS Lt. Valarie Brancato alleging discrimination.
Incidentally, the Seabrook complaint cites to the EEOC/Vulcan society suit, and Judge Garaufis’s finding that the FDNY was guilty of an “pattern, practice, and policy of intentional discrimination”.
Several EMS and New York news sources reported today that a female EMS lieutenant with FDNY has filed a race discrimination suit against the city. Lt. Valarie Brancato actually filed the suit on June 24, 2011. What occurred recently (September 30th to be exact) was that the city of New York answered her complaint by denying all of her allegations and asserting 12 separate defenses.
The timing of the recent news interest in this four month old story is curious. It coincides with considerable media attention on the FDNY race discrimination case being handled by Judge Nicholas Garaufis. Judge Garaufis has ordered FDNY to hire 3 minorities for every 5 new hires, and awarded millions of dollars in reparations to past minority applicants.
Lt. Brancato’s suit consists of 14 counts, including allegations of Federal and state race discrimination, retaliation, hostile work environment, and disability discrimination under state law. Some of her allegations sound unfortunately all too familiar, in particular – fellow students, firefighters and EMS personnel engaging in hazing and harassment in the presence of instructors and officers, who did nothing to stop or punish the behavior.
Consider the following allegation from the complaint:
“15. While Plaintiff was in paramedic school she was subjected to harassment based upon her race by white male classmates, including but not limited to: being asked if she would go to their homes to clean their windows; being subjected to gestures that made fun of the size of the lips of African Americans; being subjected to a fellow classmate wearing a gorilla mask in class and saying that it was what African Americans looked like; being subjected to two fellow classmates wearing white hoods with cutouts for their eyes and nose.
16. The instructor was aware of the comments and treatment of Plaintiff and did nothing to stop it or alleviate it.”
That issue is a pet peeve of mine. Many officers believe that if the victim of pranks and hazing (whether friendly or mean spirited) does not complain, they do not have to intervene. WRONG! Observing such conduct and doing nothing is condoning the conduct!
Lt. Brancato’s biggest problem may be the 300 day rule for filing discrimination claims under Federal law. Allegations of discrimination must be filed within 300 days of their occurrence. Some of her allegations go back to 1986, when she was first hired. However, when discrimination is so pervasive that it constitutes “a continuous pattern and practice” a court may consider acts that occurred outside the 300 days under the continuing violation doctrine.
Here is a copy of the complaint. Brancato Complaint
Here is a copy of the FDNY’s answer. Brancato Answer
An FDNY captain has filed suit against the city alleging negligence following an in station accident involving the decon unit.
Captain Frank Sorito was injured on December 10, 2010 when the Decon Shower Unit housed at Engine 160 suddenly moved and pinned him. According to reports he was crushed, suffering numerous lower back fractures.
The decon unit was apparently not chocked and was being serviced at the time. Captain Sorito’s suit includes an allegation that the mechanic was not properly trained, and that the unit was not properly secured.
Most negligence suits by employees against their employer and/or co-workers are prohibited by a principle known as workers compensation exclusivity. In essence, workers compensation benefits are considered to be the “exclusive remedy” for injured workers. New York recognizes an exception when the negligence is associated with the violation of a statute. (more…)
An FDNY firefighter has been suspended following a domestic dispute under some rather peculiar circumstances. Taylor Murphy, who appeared as Mr. March in a 2011 firefighter calendar, was arrested last week following a domestic assault incident with girlfriend.
Apparently two weeks ago, Murphy and his girlfriend were at a strip club. That seems to be contributing factor number 1. Murphy’s girlfriend is actually a stunningly beautiful model named Claudia Charriez. In fact, she was on America’s Next Top Model in 2006. See her photos. Let’s call that contributing factor number 2.
Contributing factor number 3 occurred when several patrons asked Charriez to dance. Contributing factor number 4 arose when the owner of the club offered her a job on the spot as a dancer. Murphy got jealous, the dispute turned violent and spilled into the street outside the strip club. Murphy allegedly bit, slapped, choked and kicked Charriez, dragging her several blocks by her hair. Murphy is reported to weigh roughly 245 pounds while Charriez weighs a mere 124 pounds.
Had the story ended there, it most certainly would have qualified as one of the more bizarre “You can’t make this stuff up” stories of the year. But news sources are reporting an additional twist: Charriez used to be a male. In fact, she was disqualified from America’s Next Top Model when it was disclosed she was born a man.
Murphy has been suspended from the FDNY and faces several assault, criminal mischief and obstruction of justice charges. He was released on personal recognizance. More on the story.
One of the FDNY EMTs who failed to come to the aid of a dying woman in an Au Bon Pain last December, has been charged criminally. Melissa Jackson was arrested and arraigned in Brooklyn today, ten months after the fateful December 9, 2009 incident.
Jackson and fellow EMT Jason Green, apparently snuck out of work as dispatchers to grab a bagel while an Au Bon pain employee, Eutisha Rennix, was experiencing an asthma attack. The exact details of what occurred in the resturant remain somewhat sketchy, but the pair did not treat Ms. Rennix, although Jackson did call 911 for an ambulance.
Rennix, who was 25 years old and 8 months pregnant, died. Her baby girl was delivered via c-section and also perished.
Green was shot and killed in an unrelated incident last summer. Jackson is charged with “official misconduct”. Under New York Penal Law, the offense reads as follows:
§ 195.00. Official misconduct
A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:
1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or
2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
Official misconduct is a class A misdemeanor.
Outside the courtroom, Jackson’s lawyer, Benjamin Heinrich, made an ironic observation: Jackson was the only person in the Au Bon Pain that morning who did anything to aid Rennix. Neither the manager, co-workers, nor even Rennix’s boyfriend did anything for the woman. Rennix herself declined suggestions that an ambulance be called because she needed the hours at work.
Jackson faces a maximum sentence of two years.
The family of a pregnant woman who accused two FDNY EMTs of refusing to come to her aid in her final moments, have filed suit against the city and one of the EMTs.
Eutisha Rennix died on December 9, 2009 after she suffered an asthma attack at work in an Au Bon Pain in Brooklyn. Immediately after her death, her family began accusing the two EMTs of refusing to help Ms. Rennix, stating publically on television that the EMTs sat in the restaurant and had coffee and bagels while Rennix died in the back room because they were on a "coffee break".
While most of the allegations leveled by the family have been refuted by the facts, the lawsuit alleges that the failure of EMTs Jason Green and Melissa Jackson to assist, coupled with the initial dispatching of a BLS unit, and the delayed response of ALS care, contributed the Ms. Rennix’s death
The incident took place across the street from a dispatching center for ambulances where the two EMTs worked as dispatchers. Green and Jackson, who were dating, stopped in to pick up coffee and were in line when they were informed someone was feeling ill and needed an ambulance. Jackson used her personal cellphone to call in the request. Neither Green nor Jackson were ever asked to examine the patient nor informed that the patient was seriously ill. They left with their order to return to work and did not, as alleged, sit and eat.
Green was subsequently shot and killed in what appears to be an unrelated act of violence on July 18, 2010 outside a Manhattan nightclub.
Among the allegations in the suit are that the city should have provided a better-equipped ambulance.
Controversial Judge Nicholas Garaufis has dropped another depth charge on the FDNY, blocking the department from hiring 300 new firefighter recruits. Judge Garaufis has previosuly ruled that FDNY purposefully discriminated against minority applicants in its earlier tests. The proposed 300 new firefighters would have come from a brand new testing process.
In his latest decision he said the city offered no proof that the new test was free from discrimination or sufficiently job related to pass muster. Interestingly, 35% of the new class would have been minority candidates. However, under a previous order Judge Garaufis ruled that 3 of every 5 new hires be a minority as a remedy for past discrimination.
A brawl between two firefighters in their Queens fire station on July 30, 2009 has resulted in a lawsuit being filed in Queens Supreme Court. FF Keith Thompson alleges that FF Stephen Buonavita assaulted him, and that their Lieutenant, Charles Piranio, attempted to cover up the incident.
The beating was so bad that Thompson allegedly needed reconstructive surgury. Piranio allegedly ordered firefighters to take Thompson to the hospital in a personal vehicle and to say he was injured in a bar brawl.
Buonavita has already pled guilty to assault and disorderly conduct charges, and was required to reimburse Thompson for his uncovered medical bills and attend an anger-management program. Disciplinary charges against Buonavita and Pirano are expected.
The details of the case and the coverup sound eerily familiar to the New Years Eve, 2003 assault on Firefighter Robert Walsh that resulted in a great deal of negative publicity, numerous disciplinary actions (including the termination of FF Michael Silvestri, demotions and forced retirements), and a $3.75 million settlement for Walsh.
Both cases are consistent with the Robin Hood Syndrome that exists in many fire departments across the country. The firefighters view themselves as noble and good (which – by the way – most are), and cast the city administration into the role of the Sherriff of Nottingham (which by the way…..). Under what possible set of circumstances would one of Robin Hood’s men surrender one of their own to the evil Sherriff?
Last spring at the EFO Symposium, Dr. Denis Onieal recommended a pretty decent book for all to read, titled How the Mighty Fall, by Jim Collins. The book talks about the 5 stages of decline – for an organization as well as for a person. I was particularly struck by a quote about how a common element in the decline process is self-deception: we deceive ourselves – and in the process contribute to our own demise:
“Whenever people begin to confuse the nobility of their cause with the goodness and wisdom of their actions… they can … easily lead themselves astray.”
Given the current polarization that exists in so many fire departments across the country – looking the other way at wrong doing may seem like the right thing – the noble thing – to do… but it just perpetuates the problem. It is part of that self-deception that can contribute to a "Fall", personally or organizationally. For some more thoughts on the problem of looking the other way…. and the extent of wrong doing….. Download The Problem Lite (give it a second to load).
There has been another abrupt change in the FDNY discrimination litigation. On June 1, 2010 Judge Nicholas Garaufis announced that Mary Jo White, a former Federal prosecutor, would take over the role of special master from Robert Morgenthau, who decided to withdraw. Judge Garaufis appointed Morgenthau to serve as special master on May 26, 2010, but the decision came under heavy criticism immediately by the Bloomberg administration.
In a letter to the judge, Morgenthau wrote "the city’s Law Department has now objected to my service, claiming I will be perceived as biased against the current administration…[I] request that the Court relieve me of the duties I undertook to perform." Morgenthau also wrote "Although there is no basis whatsoever for this charge, it does appear that the current administration harbors resentment against me".
White was a U.S. attorney with the Southern District of New York, and most recent has been in private practice.
There has been alot written in the press about this latest turn of events – but nothing beats reading the words right from the horse's mouth. No spin, no hype – just the facts.
Read Morgenthau’s letter Download Morgenthau_Letter
Read Judge Garaufis’s scathing order Download Court_Order_Morgenthau
Read the Order Appoint Mary Jo White, including the details of her responsibilities to FDNY Download Order_Appointing_White
The ongoing saga of the FDNY employment discrimination case took another turn yesterday, when Federal District Court Judge Nicholas G. Garaufis appointed Robert M. Morgenthau as a special master to address the FDNY’s hiring practices.
In remarkably blunt terms, Judge Garaufis explained why he appointed Morgenthau, who recently retired after 35 years as the district attorney of Manhattan: “The city does not appear to understand that it already lost this case, and that its obligation now is not to fight tooth and nail against the possibility of change, but to move with alacrity to cure its illegal practices. Put bluntly, the constitutional rights of thousands of its citizens are at stake.”
In January, Judge Garaufis concluded that the city had intentionally discriminated by continuing to use an exam that it knew had a disparate impact on black applicants. Since that time, the judge’s patience with city lawyers has been strained. For example, he threatened to sanction the city after lawyers suddenly produced thousands of documents related to the case more than two years late. In appointing the special master, Garaufis hopes to provide “steady, vigilant, immediate and comprehensive oversight” to effect the needed changes.
One of four survivors of a fatal apartment fire in Queens last November, has filed a claim against the city alleging that a dispatching error contributed to his burn injuries. Shafin Ahhamed has incurred over $50,000 in medical bills for treatment of his injuries. The November 7, 2009 fire claimed the lives of three Bangladeshi nationals, and seriously injured several others.
The dispatching error was attributed to a typo sending units to 62nd Steet instead of 65th Street. Ahhamed’s is claiming the mistake led to a 15 minute delay, while FDNY reports indicate the mistake was promptly discovered resulting in a total response time of just under 5 minutes. He says that as a result he was force to try to rescue the trapped victims and was injured in the process.
Reports say that the occupants’ escape was blocked by construction materials, and smoke detectors in the building were non-functional. Ahhamed’s claim described the apartment building a nuisance and firetrap and accuses the Department of Buildings (DOB) of failing to inspect the building properly and the fire department for negligence in dispatching procedures and for failing to put out the fire quickly enough. The claim is essentially a procedural requirement to formally put the city of notice of the allegations prior to suit being filed. The city would have the option of settling the claim at this point, but as a matter of course that is not likely to happen.
It appears that the apartment building was illegally converted from a two family into a five-family dwelling by creating seven additional rooms out of existing space. The top floor was subdivided into two living units with a total of three bedrooms and the basement had four bedrooms. The three victims who died were in the basement at the time of the fire, which had only one way out. The tragedy caused the DOB to issue several violations.
Ok, so maybe it was not a hammer that dropped, it was a gavel, but the metaphor is clearly there: something big happened in the Big Apple on January 21, 2010.
Just one week after Judge Nicholas G. Garaufis determined FDNY had intentionally discriminated against minorities in the 1999 and 2002 hiring processes, he ordered the remedy… and it will no doubt be a bitter pill for many to swallow: for every five firefighters the department hires, two must be black and one must be Hispanic. The remedy will last at least until 293 identified minority applicants are hired, and those applicants will be entitled to retroactive seniority.
In addition, the court is ordering the department to develop a new non-discriminatory hiring process, and compensate roughly 7,400 minority applicants who took the 1999 and 2002 tests in question.
The judge declined to order a formal hiring quota that had been sought by the Vulcan Society, a fraternal organization of black firefighters who joined the suit along with the United States and the Center for Constitutional Rights (CCR).
By various accounts, FDNY is between 91-93% white male and the long-standing disparity in pass rates between white and minority applicants have resulted in two determinations of disparate impact discrimination (in 1972 and again in July, 2009), and a precedent setting finding of disparate treatment (intentional) discrimination by Judge Garaufis on January 13, 2010.
An appeal would appear to be imminent.
A major decision in the FDNY race discrimination hiring case was delivered yesterday, January 13, 2010, and it’s impact is only now starting to sink in. In a 70 page ruling, Judge Nicholas G. Garaufis lambasted FDNY for ignoring statistical imbalance numbers for years, and continuing to use hiring policies and procedures that resulted in a workforce that was approximately 93% white male.
The lawsuit, filed in May, 2007, challenged two examinations administered in February, 1999 and December, 2002, as part of the hiring process. In July, 2009, Judge Garaufis ruled that the examinations were discriminatory under the disparate impact theory. The ruling yesterday was important because FDNY was also being accused of deliberate, purposeful discrimination. There are two basic types of discrimination, disparate treatment and disparate impact.
Disparate treatment is the most easily understood type of discrimination, but often the hardest to prove. It occurs when someone acts intentionally and deliberately to discriminate. For example, an employer who refuses to accept an application from a black applicant, or who purposefully destroys an application once filed, would be guilty of disparate treatment. Usually, disparate treatment cases are few and far between these days.
Disparate impact occurs when despite the fact that there is no clear evidence of intent to discriminate, a statistical imbalance exists that is evidence that some neutral appearing factor must be causing the imbalance, and thereby results in unlawful discrimination. The July, 2009 ruling determined that the 1999 and 2002 examinations had a discriminatory impact. The ruling yesterday was nothing short of historic in so far as it concluded that the continued use of such tests despite a longstanding knowledge that they had a disparate impact, constituted disparate treatment. In other words, the judge ruled that FDNY purposefully discriminated against minorities.
A recent incident in New York City once again raises the question of duty to act. Does an off-duty EMT have a duty to render aid to a citizen in distress? While it will take years for the legal issues to play themselves out, the tragedy is being played out in the press damaging the reputation of FDNY and EMS workers in the process.
On December 9, 2009, at about 9:00 am two EMTs walked into an Au Bon Pain coffee shop. While there, an employee began experiencing shortness of breath and abdominal pains. The woman, who was pregnant at the time, was reported to have been unconscious and turning blue. Other employees, seeing the two FDNY employees, asked them to help. According to witnesses, the pair declined, suggesting merely that 911 be called. 911 was called, a crew arrived, but the woman and her unborn baby died.
And now the questions start…….