Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
An EMT with the Wayne Township Fire Department has filed suit contending that her discipline for failing a random breathalyzer test was substantially harsher than that given to similarly situated males. Kimberlie Neal filed suit in US District Court for the Southern District of Indiana.
The suit contends that male firefighters received suspensions of 23 and 48 hours for the same infraction while Neal was suspended for 144 hours. Quoting from the complaint:
- On or about March 10, 2020, at 7:40 am, Defendant randomly administered a test to Neal at her station house. Under the Defendant’s policy, an employee must blow below .02. On said date, Neal failed said breathalyzer test.
- Per the Defendant’s policy, Neal was transported to Concentra for a “certified breath test” on the same day. At 8:33 am, Neal was administered a test and blew a .044. At 8:49 am, Neal was administered a second test and blew a .037.
- On or about March 10, 2020, Neal sought an evaluation and treatment for alcohol use, per the Defendant’s policy, at Rainbow Recovery. Said evaluation and treatment plan were approved by the Defendant.
- At the time, Chief Randy Adams, who is a male, was the Chief of Defendant. Chief Adams stated that since Neal was the first failed breathalyzer under the Defendant’s new administration, he was going to, “make an example of her.”
- On March 17, 2020, Defendant sent a “Confidential Agreement” …. [that] required the following:
- a. Defendant required successful completion of the Initial Treatment Plan, AOP Program and all objectives identified.
- b. Defendant required weekly Compliance Follow-up Letters to Chief Lang stating that Neal was in compliance with her treatment plan. Due by 4pm each Friday.
- c. Defendant required Neal to completely suspend all forms of social media while enrolled in treatment until released to return to duty.
- d. Defendant required Neal to remain in the status Leave-Detail while attending treatment at Rainbow Recovery. Neal’s point of contact was with Chief Lang.
- e. Defendant noted that upon Neal’s completion of her treatment plan and release to return to work, she would immediately serve 144 hours of discipline.
- f. Defendant required Neal to submit up to twelve additional random drug and alcohol screen tests over a two (2) year period, outside the regularly scheduled random drug and alcohol screenings. If during these additional tests, Neal tested positive for alcohol or illegal drug usage, she would be brought up for immediate termination following Defendant’s current policies and procedures.
- g. Defendant noted that any failure by Neal to remain in compliance with Rainbow Recovery’s Initial Treatment Plan shall be grounds for immediate withdrawal of the terms of the Agreement and further disciplinary actions may be taken.
- On May 29, 2020, a “Suspension Without Pay” notice was provided to Neal. In said notice, it reiterated that Neal was to be suspended without pay for a total of 144 hours.
- Additionally, Neal was prohibited from working overtime.
- On or about September 6, 2020, Lieutenant Ryan Rowley (“Rowley”), who is a male, failed a random breathalyzer test. The Defendant disciplined Rowley by only subjecting him to 23-hours of unpaid leave and required him to complete an online mental health course.
- Additionally, another male firefighter (name unknown) failed a breathalyzer test in or about 2020/2021. The Defendant disciplined said individual by only subjecting him to 48-hours of unpaid leave.
The complaint contains a single count of gender discrimination under Title VII of the Civil Rights Act of 1964. Here is a copy of the complaint:
