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Maryland Suit Alleges Pregnancy Discrimination

A Maryland firefighter-paramedic who was terminated in 2011 following her use of sick leave for her pregnancy has filed suit alleging pregnancy and gender discrimination under state and federal law.

Robin Lancaster filed suit against the Sykesville-Freedom District Fire Department in Carroll County Circuit Court last month. The case was removed to federal court earlier this week at the request of the department.

Lancaster was terminated in November 2011, one month after giving birth to her son. However, her problems began about seven months earlier when she began using sick leave on account of morning sickness and pregnancy-related medical appointments. A fire department board member, Bill Luebberman, cautioned her about her sick leave usage suggesting she may be written up if it continued.

In May of 2011, Lancaster was advised not to lift more than 40 pounds. When she notified Luebberman he informing her via email:

If you have a doctor's note saying that you can not [sic] function as a Paramedic, then it's now time for you to go on sick leave. When sick leave is gone, then revert to annual leave. When that runs out apply for short term disability. We do not have light duty status at Sykesville.

Lancaster was also advised that she was being treated the same as male employees. That issue remains a point of contention between the parties.

After Lancaster had her son in October, 2011 she sought permission to return to work. She emailed Lubberman who replied: "What makes you think that you still have a job at Sykesville?"

The two exchanged additional emails and quoting from the complaint:

Mr. Luebberman responded, "I'm not sure we want you back with us at this time. Board meeting tonight." Mr. Luebbennan never offered any explanation for why SFDFD did not "want her back"- he never referenced poor performance or any elimination of her job. Similarly, the Minutes from the SFDFD Board of Directors meeting offer nothing more than, "EMPLOYEE: We wilI be hiring a full time ALS provider." There is no reference to any performance issues on the part of Ms. Lancaster and it is clear that SFDFFD was looking for a replacement for her position. Ms. Lancaster received a letter from Kevin M. Shiloli (President) on  November 15, 2011 stating, '"The-Employee Board along with the Board of Directors of The Sykesville Freedom District Fire Department regrets to inform  you that your employment with the Sykesville Freedom District Fire Department has been terminated effective November 15, 2011. We however, wish you success in your future endeavors."

The two count complaint alleges that Lancaster’s termination was due to her pregnancy, constituting discrimination under Title VII of the Civil Rights Act of 1964 as well as under Title 20 of the “Maryland State Government Article”.

Here is a copy of the complaint: Lancaster v Sykesville

More on the story.

Incidentally, it appears that Lancaster was the first pregnant employee that Sykesville Freedom District Fire Department has had to deal with. It would also appear that the department was in a reactionary mode in dealing with the issues that commonly arise with pregnant employees.

Departments in such a reactionary mode may be tempted to try to address pregnancy-related leave issues with a cost-management approach in mind. Hint: that is probably not a good idea. Getting good HR and legal advice is critical in such situations.

The best course of action for any fire department is to think through all the implications associated with pregnant employees well in advance of such a situation. That way a policy can be developed at a point in time when there is no particular employee – with the history and baggage that real life employees inevitably introduce – that can add a whole other level of complexity to policy development.

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Posted in Civil Suit, Discrimination, Municipal Liability, Wrongful termination

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5 comments Posted by on May 23, 2013

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.

More on the Vasich case.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Negligence, Politics

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4 comments Posted by on May 5, 2013

Another Gender Discrimination Suit For Chicago Fire

Twenty African-American female applicants to the Chicago Fire Department who are already plaintiffs in two other discrimination suits against the city, have filed yet a third suit against the city, this time challenging a physical abilities test that was used to hire African-American firefighters as part of a settlement of the well known race discrimination suit, Lewis v. City of Chicago.

The twenty women filed the class action lawsuit on behalf of “similarly situated” women applicants for CFD.  Each had passed the written exam for the department, but failed the physical abilities test. The 17 page complaint was filed last Friday, October 26, 2012, in US District Court for the Northern District of Illinois.

The women are all plaintiffs in the Lewis case, as well as a separate gender discrimination case filed last year, Vasich v. City of Chicago.

The suit alleges that the city used a physical abilities test to hire 111 African American firefighters that discriminated against women. It is the same test that is the focus of the Vasich suit. The Chicago Sun Times quoted lead attorney Marni Willenson  as complaining “It’s a test that doesn’t really test for the abilities you need to become a firefighter and screens out women needlessly and unjustifiably.”  

The new case is titled Godfrey v. City of Chicago. Here is a copy of the complaint. Godfrey v City of Chicago

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

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1 comment Posted by on October 28, 2012

Ohio Firefighter Settles Discrimination Suit Over Tattoo

A female firefighter who claimed she was being discriminated against by being ordered to cover her tattoos has reached a settlement with her department.

Firefighter Linda Goetz sued the city of Forest Park claiming that she was being unlawfully singled out to cover her tattoos while male employees and even an African American female employee were not.

The tattoos in question were a dragonfly tattoo on the left side of her neck, a dandelion tattoo on the right side of her neck, a cross on the inner side of her left bicep, lightning bolt on the upper inner portion of her right forearm and Indian feathers on her right foot.

Goetz alleged that in 2010 she was ordered to wear turtlenecks to cover her neck tattoos, and on one occasion had to be hospitalized for heat exhaustion in 100-degree heat [Note: I’ll bet that allegation plays better to civilians than it does to firefighters…].

When she refused to cover her tattoos, she was disciplined, prompting her suit in Federal court.

US District Court Judge Michael R. Barrett recently issued a split decision on the City’s motion for summary judgment, ruling in favor of the fire department on allegations of direct sex or race discrimination, but finding there to be a triable question of fact as to whether the disciplining of Goetz was merely a pretext for sex or race discrimination.

Judge Barrett concluded that under the pretext theory, it should be up to a jury to decide if other employees should have been disciplined for their tattoos and if so, whether the basis for not disciplining them was their sex or race.

Here is a copy of the ruling, which undoubtedly played a role in the parties reaching a settlement.  Goetz v City of Forest Park MSJ

The settlement makes those issues moot. The terms of the settlement have not been released.

More on the story.

Here is a copy of the original complaint. Goetz v City of Forest Park

October 25, 2012: followup story about the former Forest Park fire chief who was involved with the Goetz case:   http://www.journal-news.com/news/news/administrator-unaware-of-lawsuit-involving-interim/nSn2L/

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Posted in Civil Suit, Disciplinary Action, Discrimination, Municipal Liability

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4 comments Posted by on October 24, 2012

Florida Fire Department Reaches Settlement with DOJ Over Pregnancy Discrimination

A settlement has been reached in a lawsuit brought by the US Justice Department against the town of Davie, Florida over the fire department’s treatment of pregnant employees.

According to the suit, the department prohibited pregnant employees from being placed on light duty status until they reached their second trimester, irrespective of their ability to perform their jobs or their doctors’ orders. In addition, the department required pregnant employees to leave active duty positions upon the start of the second trimester.

Both of these requirements are clear violations of the Pregnancy Discrimination Act of 1978.

The act prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work”

While the town denied all accusations of discrimination, it entered into a consent decree with the US DOJ requiring it to treat pregnancy the same as any other condition that people may have. Pregnant women shall be allowed to be assigned light duty or full duty status to the same extent as other employees who have other conditions.

Assistant US Attorney General for the Civil Rights Division Thomas E. Perez said “Decisions about how and when to restrict a pregnant woman’s work duties should be made by the woman and her doctor, and employers must make certain that their policies and practices treat pregnant women the same as people who are similarly able or unable to work.… We will not tolerate public employers engaging in this type of unlawful discrimination.”

Under the terms of the consent decree the town has 120 days to amend its policies to eliminate all sexual and pregnancy based discrimination. The town also consented to an injunction that prohibits any further discrimination or retaliation against any employee over the litigation or who exercises their rights under the pregnancy discrimination act. It is worth noting that should any town official or employee retaliate, it would be within the court’s discretion to find the guilty parties in contempt of court.

Here is a copy of the DOJ’s complaint. Davie FD Complaint

Here is a copy of the consent decree. Davie Consent Decree

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

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1 comment Posted by on June 25, 2012

San Jose Settles Sex Discrimination Suit

The city of San Jose has agreed to settle a sexual discrimination suit brought last year by two female fire captains who claimed they were wrongfully denied promotions.

Captains Debra Ward and Patricia Tapia filed the suit in state court alleging that despite their high scores (Ward came out 1st and Tapia number 8th on the objective portion of the process) the city promoted nine men to battalion chief. The women were graded down during the subjective interview phase.

According to the suit, a number of the males who were selected were close friends of the fire chief and belonged to a Christian firefighter group led by a deputy chief. In addition, they alleged that after they were turned down for the promotion they were asked to train one of the men who was promoted.

The case has been settled for $395,000. Tapia, who also alleged race discrimination based on her Latino heritage, has already been promoted to Battalion Chief.

The settlement is the second sex discrimination suit settled by the city in recent years. Recall in 2009, the city settled with firefighter Julie LaBlanc, whose son came out of a fire station bathroom with a pornographic magazine in hand following a visit. When LeBlanc complained she was harassed by co-workers. Leblanc received a $200,000 settlement.

LeBlanc’s attorney, Angela Alioto, also represented Ward and Tapia. The settlement is expected to be approved by the city council on June 19, 2012.

More on the story.

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

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1 comment Posted by on June 14, 2012

Oregon Firefighter With Pacemaker Settles Discrimination Suit

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

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

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

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

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

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

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

More on the story.

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

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6 comments Posted by on April 12, 2012

Iowa Firefighter Alleges Pregnancy Discrimination Over Denial of Light Duty

A Clinton, Iowa firefighter has filed a gender and pregnancy discrimination suit because she was not granted a light duty position to accommodate her pregnancy.

Karen McQuistion is a firefighter with the Clinton Fire Department who became pregnant last spring. On May 11, 2011 she notified Fire Chief Mark Regenwether, and requested that her condition be accommodated by a transfer to a light duty position. That request was denied due to the financial condition of the city, and McQuistion continued to work on the line until September 29, 2011 when her doctor advised her to take leave.

In October 2011, McQuistion filed discrimination charges against the city with the Iowa Civil Rights Commission, and received a right to sue letter.

The lawsuit, filed in Clinton County District Court on March 28, 2012, contains three counts: (1) gender and pregnancy discrimination under state law, (2) a violation of the Iowa state constitution’s equal protection clause, and (3) a violation of Iowa constitution’s due process clause. In what is no doubt a strategic move to keep the case out of Federal court, the complaint DOES NOT allege gender discrimination under Federal law, a violation of the Federal Pregnancy Discrimination Act, nor violations of McQuistion’s Federal Constitutional rights.

The suit alleges that Clinton police officers receive light duty accommodations for pregnancies, and that the fire department allows firefighters who are injured on the job to perform light duty, but denies that accommodation to pregnant firefighters.

The suit names City of Clinton, City Attorney Jeffrey Farwell, City Administrator Jeffrey Horne, and Fire Chief Mark Regenwether, who recently retired. It seeks compensatory damages to cover McQuistion’s lost wages, plus punitive damages “in an amount sufficient to punish the defendants and deter the defendants and others from the same or similar wrongful conduct.”

Here is a copy of the complaint. McQuistion v Clinton

As for the law in a nutshell: As a general rule, a pregnant employee cannot force an employer to create a light duty assignment. Thus if a fire department had no light duty positions, a pregnant firefighter would be out of luck. However, if an employer grants employees light duty assignments for medical and other reasons, it cannot refuse to accommodate an employee who seeks a light duty position on the basis of pregnancy.

More on the story.

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Posted in Civil Suit, Constitutional Rights, Discrimination

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No comments Posted by on April 9, 2012

Station Modifications and Gender Discrimination

Today’s Burning Question: My department is an all career medium sized department in the mid-west with 7 firehouses. We recently promoted several engineers, which prompted a series of transfers. In the process a female firefighter (engineer) was denied a transfer to a single engine firehouse because it has no female locker room or restroom facilities. The firehouse has always been an all-male station and the department has publically stated that it needs to remain this way for now in order to avoid any problems due to the lack of female facilities. The department’s plan to renovate the stations had to be placed on hold due to budget constraints.

The female firefighter was advised of the reason that her transfer request was denied, and she promptly filed a grievance with the union. The union went directly to the city’s law department bypassing the fire chief – and I don’t know what was discussed but the previous transfers were summarily changed to accommodate her request to be reassigned to this firehouse.

It seems to me that the fire administration was in a no-win situation, and did everything they could to avoid having to make costly renovations we cannot afford. Can she really force the city to put her in a situation that may then lead to further gender based problems? And can she force the city to renovate a station when it lacks the funds to do so?

Answer: Wow… that is a long question. Do you want the short answers? Yes to the first… and to the second, no but it would sure be advisable.

The long answer – that is going to take some time. First of all, gender based employment discrimination is illegal. I am sure that is no surprise, right? In 2012 that is common sense. What may be surprising to your fire chief and his administration (how did I know your fire chief is male…. call it attorney’s intuition) is that treating a female firefighter differently than a similarly situated male firefighter is discrimination. Good intentions (“we did it for her own good”) really don’t count for much when the solution to possible discrimination is itself discriminatory. My guess is the conversation between the law department and the fire chief focused on that aspect a bit.

If a male engineer of a given level of seniority would have been given an assignment to the station in question, it would constitute gender discrimination to deny the assignment to a female. The fact that the station has no facilities for females is irrelevant… well, maybe irrelevant isn’t the right term – because the fact that the fire station cannot ALREADY accommodate females can be – in and of itself –  evidence of gender discrimination… So there is no need to wait until a female is assigned to the station and has a problem for there to be a problem.

The second part of your question asks about “costly renovations”… there is no requirement that fire stations be retrofitted with separate male and female facilities. In fact, many fire departments have been able to accommodate women simply by adding locks to bathroom doors and requiring the doors to be locked when in use. OK, it is not perfect but it is cheap and certainly is viable as a short term interim measure.  However, if you have had women in your department for very long – these types of problems should have been addressed long ago. There are cases where the failure to make reasonable accommodations for females in the workplace over the course of time have contributed to large verdicts against fire departments for sex discrimination… much larger than the cost of renovations.

BTW… I would like to have been a fly on the wall when the union met with the city lawyers… or even better listened in on the conversation between the city lawyers and the fire chief…

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Posted in Burning Question, Constitutional Rights, Discrimination, Promotions

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5 comments Posted by on March 6, 2012

EEOC Investigating Florida Fire Department Following Complaints

Eight firefighters from Davie Fire Rescue have filed a comprehensive 87 page complaint with the EEOC alleging sex discrimination and retaliation. The complaint comes on the heels of two pending gender-based lawsuits against the department.

As best I can tell the cluster of cases began in 2009 when Fire Inspector Linda Stokoe was terminated. Stokoe sued claiming she was discriminated against, and subjected to a hostile work environment. She alleges that supervisors went so far as to time her bathroom breaks, and did not similarly time the bathroom breaks of male personnel.

Retired Lieutenant Larry Pasko sought the open position as a fire inspector and contends that the town hired a woman, Susan DiPuglia, who lacked the requisite certifications in an effort to conceal its previous discriminatory termination of Linda Stokoe. Pasko’s suit is set for trial in December 2012.

The eight members who filed the most current discrimination complaint with the EEOC include both male and female firefighters, and one retired member. They allege that female personnel in DFR face harsher discipline, are promoted less often, and confront a hostile work environment. The complaint also alleges that anyone who speaks out, male or female, faces retaliation.

Attorney Erik Nelson is representing Stokoe for her termination, Pasko for his discrimination case, and the eight complaining firefighters.  He was quoted as saying “We are fully and actively participating in the administrative process with the EEOC and the Department of Justice with the hope that these issues may be resolved without further court action. However, if they are not, we are ready, willing and able to proceed to court.”

More on the story.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, You Can't Make This Stuff Up

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1 comment Posted by on December 17, 2011

New Jersey VFD Sued for Sex Discrimination

The Cape May County Herald is reporting that two women have filed a sex discrimination suit against the City of North Wildwood and the North Wildwood Volunteer Fire Company. According to the news report, the women were denied membership.

City Solicitor William Kauffman has confirmed receipt of the summons and complaint, but declined to comment on the allegations. No additional details are available.

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

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No comments Posted by on December 15, 2011

Kansas Chief Seeks $1.3 million for Sex Discrimination

A deputy chief who was laid off by the Topeka Fire Department in 2010 due to budget cuts, has filed a claim for $1.3 million alleging that the elimination of her position, and the refusal to rehire her for a training position, was gender based and retaliatory.

Kathy Petty was one of Topeka’s first female firefighters, and the first to reach the rank of deputy chief. She had been in the cross-hairs of the union, with 86% of the rank and file having expressed their dissatisfaction with her performance in a 2006 poll.

Her position was eliminated in February, 2010. The city claims the position was eliminated to save money, but Chief Petty disputes that fact. She also claims she was fully qualified for a training officer position that became available in 2011, but was passed over.

Chief Petty’s $1.3 million claim is an administrative request for payment filed in advance of filing a suit. The city council will consider the claim at its next meeting but is expected to deny it, forcing her to file suit.

More on the story.

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Posted in Civil Suit, Discrimination, Wrongful termination

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1 comment Posted by on October 28, 2011

You Can’t Win Them All

A retired battalion chief from the Kansas City (Missouri)
Fire Department who won two previous Federal court cases for sexual
discrimination in 1999 (Kline I) and 2006 (Kline II), finally lost a case (Kline
III). On December 22, 2009, a Jackson County Circuit Court jury ruled against Chief
Kathleen Kline’s claims of sex discrimination.

Chief Kline's previous lawsuits were instrumental in highlighting the challenges faced by women in the fire service. They addressed an overall lack of concern that many fire departments showed toward female firefighters, from providing ill-fitting protective clothing to totally inadequate facilities for showering, changing, and sleeping.

The basis of Chief Kline’s latest suit was that the city’s
continued failure to provide adequate facilities for female firefighters in its
stations was discriminatory (an issue she has previously prevailed upon in
Kline I and Kline II) and retaliatory toward her. Chief Kline also alleged that the department retaliated
against her because of her previous lawsuits by denying her permission to trade
assignments with another chief.

After the verdict, Chief Kline is reported to have told reporters that her lawyer may file a
motion for a new trial. Given that both Kline I and Kline II were appealed, it
seems a good bet that Kline III will not end here. Stay tuned!!!!!

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Posted in Discrimination, Sexual Harassment

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1 comment Posted by on December 30, 2009

$2.5 Million Verdict Against Fresno

A Federal District Court jury in California awarded a mother $2.5 million for sex discrimination arising from her departure from the Fresno Fire Department. The woman, Michelle Maher, was a Fresno Fire recruit in 2005, but alleges she was discriminated against and forced to leave the fire academy in part because she was a single mother.

The verdict was announced on Friday, November 13, 2009 after a three week trial. Channel 47 has video coverage of the verdict including a brief interview with Maher.

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Posted in Civil Suit, Discrimination

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No comments Posted by on November 15, 2009