Preventing Legal Fires 2018 - Year in Review

I always like to review year end legal issues for the fire service, even as I routinely write about them, as
an interesting study in firefighter legal behavior over the past year. It is a reflection of where we are and
where we are going. The short story is our behavior is not changing as fast as the fire service would like
as we still see complaints and litigation popping up every week.

We continue to see patterns of bad legal behavior, in spite of the frequent lectures and articles written
by my cohort attorneys, Pinsky, Varone and Comstock, the fire services continue to wallow in the muck
and mire of legal jeopardy.

During my Preventing Legal Fires and Legal Jeopardy lectures affecting the fire service, I discuss the
importance of not violating established Constitutional, Federal or state law protections the fire
Department has an obligation to uphold. I believe the fire Department as the institutional form of our
collective personalities by in large does the honorable thing by respecting the rights and privileges of our
firefighters and the community we protect. Remembering, the fire service is a homogenous group of
primarily white men, that is ripe for these types of legal conflict. The culture of the organization needs
to change to prevent many of the lawsuits affecting the fire service.

Unfortunately, we have a history of suing each other and a majority of the largest lawsuits with large
payouts to the aggrieved firefighter involve our own people in the form of harassment, discrimination,
bullying and violations of Constitutional protections under the Civil Rights Acts and its sub parts to
include Age Discrimination under ADEA, Pregnancy Discrimination under PDA, rights to return to work
after military deployment under USERRA, Gender or Sex Discrimination, pay under FLSA, family leave
under FMLA including gender identity or transgender status under the Civil Rights Act, Title VII and other
violations of the law. These claims against the department costing our industry millions of dollars in
settlement claims or court decisions and polarizes the members of that particular fire department.

Much of Preventing Legal Fires has to do with the creation and enforcement of your department policies
preventing such behavior. “If only” is an often heard statement when the department is sued for
violating its own policies or trying to sweep bad behavior “under the rug.” “If only we had acted
sooner”, “if only we listened to that firefighter” or “if only we had a policy”. Create your “if only”
statements and fix the issue.

Let’s look at a few cases from 2018:

Discrimination refers to the treatment or consideration of, or making a distinction in favor of or against,
a person or thing based on the group, class, or category to which that person or thing belongs rather
than on individual merit.
 Such a case in Kennewick (WA) involves both discrimination and retaliation. The firefighter sued
the city and several Kennewick Fire Department supervisors, claiming she was unfairly passed
over for promotion and that her complaints about working conditions were ignored. She was
hired in 2004, alleging that she became the target of offensive acts, behavior and comments
because she’s a woman. She said the behavior began about two years after she started working
for Kennewick as one of two female firefighters at the time. She also filed a second lawsuit
claiming the city withheld records she believes would show a pattern of gender discrimination
within the department and settles for $600,000.00 and resigns from her job.
  In Cook County Illinois, a jury awarded a female firefighter over $11 million in her sexual
harassment lawsuit against her former department after filing a lawsuit against Country Club
Hills for gender discrimination, sexual harassment and retaliation. She was a long term
employee of the department starting work for the fire department there in 1998 and has been
on paid administrative leave since 2015. See Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y.
2004).
 In a case of reverse discrimination, a white firefighter in Mississippi filed a discrimination lawsuit
against city officials claiming he was passed over for a job despite being the only certified
firefighter among four candidates who were black firefighters. The lawsuit also says that the
black selectmen referenced a “quota system,” in which city officials tried to balance out the
number of black and white firefighters by hiring more black applicants despite their
qualifications. See Davis v. West Point

Sexual Harassment is defined as behavior characterized by the making of unwelcome and inappropriate
sexual remarks or physical advances in a workplace or other professional or social situation. Your
department must have a Policy related to the prevention of harassment in all forms to include a Code of
Conduct for your firefighters.

 The Colorado River Fire Rescue is facing a sexual harassment suit by a female firefighter who
claims she was harassed virtually her entire ten-year career. The firefighter naming the Colorado
River Fire Rescue as the defendant to include accusations a number of male firefighters
committing an assortment of acts, including: changing the background screen on her computer
from a picture of her family to pornography; telling her women do not belong in the fire service;
sexually explicit comments and conduct and one firefighter assaulted her during a training
exercise. She claims she reported the misconduct to ranking officers but the members were
either not punished, not punished adequately, or only punished after she filed a complaint with
the EEOC. She also claims that she was passed over for promotion and denied training
opportunities on account of her gender and/or because she previously reported sexually
harassing behavior (retaliations). There were three charges including: sexual harassment, sexual
discrimination and retaliation, all under Title VII of the Civil Rights Act of 1964.
 In Washington State, two women firefighters are suing South Kitsap Fire and Rescue, alleging
sexual harassment by a battalion chief who retired in January 2017 after the district notified him
the fire chief was proposing his termination. An internal investigation found the former
Battalion Chief made inappropriate and degrading remarks and actions toward the women – at
times repeating them to others – and once made sexually-charged comments in front of one of
the women’s children.
 In San Francisco, the Board of Supervisors approved a $575,000 settlement of a sexual
harassment lawsuit filed by firefighter Suzanne Montes, who alleged she faced repeated
harassment at Chinatown Station 2 where she was assigned. She was only the sixth female to
serve on a truck in the San Francisco Fire Department, according to the lawsuit filed in May
2017. “Many of her co-workers at Station 2 were opposed to a female being assigned to the
position and started a campaign of harassment aimed at forcing her to leave the station,” said
the lawsuit. “She was ostracized, constantly degraded, and had feces spread in her bathroom.
She crawled into her bed to sleep one night only to find that one of her co-workers had urinated
in her bed.”

Pregnancy discrimination Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make
clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex
discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). The fire service is not the
only profession violating the PDS. Whether women work at Walmart, Wall Street or the fire service,
getting pregnant is often the moment they are knocked off the professional ladder and many times
terminated. Throughout the U.S. workplace, pregnancy discrimination remains widespread. It can start
as soon as a woman is showing, and it often lasts through her early years as a mother.

 Chicago Fire and the City has agreed to settle a lawsuit brought by a fire department paramedic
over how she was treated during her pregnancy and while nursing. In violation of the PDA:
learning of her pregnancy, she was placed on leave, requiring her to exhaust nearly all of her
available sick leave time even though she could have continued working with accommodations;
when she returned to work after childbirth, CFD denied her requests for breaks to express
breast milk on her first day back, causing her pain and humiliation when she leaked through her
shirt in front of her colleagues; the department denied her access to private, non-restroom
space for pumping, requiring her to express breast milk in dirty firehouse restrooms for several
months, and retaliated against her for complaining about CFD’s violations of the law.
 In Tampa (FL) Firefighter Tanja Vidovic’s career as a Tampa firefighter was cut short when she
says she officially complained about being harassed on the job. "As soon as I came forward as
being pregnant she was harassed and after complaining was fired. The mother of three sued the
City of Tampa awarded a $245 thousand dollar settlement federal court and through court
action was reinstated to her job.
 A great case to review for PDA discrimination is the outcome in Davie Florida fire department
where the Department of Justice became involved in a pregnancy discrimination and retaliation
claim. See https://www.justice.gov/iso/opa/resources/9792012621175626541417.pdf

Embezzlement usually is a premeditated methodical crime with precautions to conceal the criminal
conversion of the property occurring without the knowledge or consent of the affected department or
person. Often it involves the trusted individual embezzling only a small proportion of the total of the
funds or resources they receive or control, in an attempt to minimize the risk of the detection of the
misallocation of the funds or resources. We are seeing this action in small to medium sized departments
involving Fire Chiefs or treasurers with sole control of the money. The charge of embezzlement consists
of four factors: 1) there must be a fiduciary relationship between the two parties; i.e. there must be a
reliance by one party on the other like the fire chief or treasurer of the fire organization given
responsibility for the money. 2) The fire chief or treasurer must have acquired the property through the
business relationship of the fire department. 3) The fire chief or others must have taken ownership of
the property or transferred the property to someone else or for personal use, and 4) the actions were
intentional. Thanks to Curt Varone’s Fire Law Blog, here are a few of the numerous events of
embezzlement occurring every year.
 Former Akron IAFF Local 330 treasurer Joseph Ruhlin, 41, was sentenced to two years in prison
for stealing an estimated $500,000.
 A Pennsylvania firefighter John Montgomery age 76 has been charged with stealing $140,000
from the Castle Shannon Volunteer Fire Department and was arraigned on two felony counts of
theft and two misdemeanor counts of misappropriation of funds.
 A part-time administrative assistant, Kristie L. Howard, for the Falls Township Fire Department
pled guilty to stealing more than half-a-million dollars from the fire department and pled guilty
to felony counts of theft, telecommunication fraud, and eight counts of forgery.
  Here are some simple prevention methods contained in this article:
https://community.fireengineering.com/profiles/blog/show?id=1219672%3ABlogPost%3A6201
08

Social Media and First Amendment Rights. Yikes, we are here again reporting on the numerous social
media career suicides committed by our very own firefighters. Yes, there is a First Amendment Right to
speak your mind. However there is a limitation for firefighters free speech related to their jobs and as
firefighters. Not all speech is free in the fire service and most of the entries are because there is no self-
discipline on your social media sites. The test to determine if your speech is protected under the 1st
Amendment, the courts turn to the Pickering Test (Pickering v. Board of Education, 391 U.S. 563 (1968).
The test applied to free speech by government employees is: 1) the firefighter must be addressing a
matter of public concern, 2) the speech must not interfere with the employee’s job duties, and 3) the
firefighter must be speaking as a private citizen. Each 1st Amendment case is unique depending on the
factors contained in your speech or rights to post on your social media. Your department must have a
policy on social media, and there are a number of them available at Lexipol, VFIS, your attorney or other
sites available to fire department administrators.
See: https://www.lexipol.com/resources/blog/firefighters-and-social-media-does-the-first-amendment-
protect-you/.

 Fire Chief of Cannon Beach (Ore) fired for wife’s social media postings criticizing the Fire District
Board
 A Boston firefighter posting a cartoon image of a muscular black man carrying the severed head
of a white man, has been terminated
 Three Columbia (SC) firefighters and a paramedic have been fired over things they posted on
social media about a Black Lives Matter protest. With some of the protesters blocked a street at
one point, Columbia Fire Department Capt. Jimmy Morris posted on Facebook, "Idiots shutting
down I-126. Better not be there when I get off work or there is gonna be some run over dumb
a****."
 These few examples of the tip of the iceberg when it comes to terminations related to social
media. Every day it seems one of our firefighters loses their job over a moment of irritation
broadcast over their social media sites.

Volunteer Firefighters are an important part of the Nation’s fire service where over 55% of the fire
service provided is provided by volunteers. What is their status as “employees” and are they subject to
discipline and litigation? The “employment” status of volunteer firefighters are defined by state and
federal law’s related to volunteers in general. In the purest sense, “volunteers are volunteers”. See
(https://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp) however there are always exceptions to
the rule.

 In Mendel v. City of Gibraltar (6th Cir, Aug 2013), the court determined that "volunteer"
firefighters who receive $15 per hour are employees for purposes of federal employment laws.
In the case, the plaintiff dispatcher, brought a civil action against Defendant city alleging
violations of the Family Medical Leave Act (FMLA). On appeal, the decisive issue in the case was
whether so-called volunteer firefighters were actually employees as defined by the FMLA and
the Fair Labor Standards Act (FLSA). If the firefighters were employees, then the city employed
more than 50 individuals and was required to provide Plaintiff benefits under the FMLA.
  One would look to the Supreme Court’s broad "economic reality" test and looked at a variety of
factors in determining whether the firefighters were employees. Among other things, the court
considered that: The firefighters were required to complete training on their own time without
compensation; They were not required to respond to any call; When they did respond, they
were paid $15 per hour for the time they spent; The city kept personnel files on the firefighters;
and The city could discharge or promote the firefighters.
 Please check with your attorney on this question of “are volunteers employees” for your
department.
 An interesting case from Washington State, the City of Lynden has agreed to a $250,000
settlement in a lawsuit by a volunteer firefighter accusing the City and its assistant fire chief of
discrimination and creating a hostile work environment. Damon Winters, a volunteer firefighter,
filed the lawsuit against the city and Assistant Chief Robert Spinner in 2016. Winters, who was
born in Egypt, also holds citizenship in Canada. He became a U.S. citizen in March 2016. After a
series of illegal activities on the part of the department such as a selection for an open full time
position, rescinded the offer due to his lack of U.S. citizenship at the time made him ineligible.
Winters was again denied a full-time position after a second offer. The part-time position
Winters had was also eliminated. The city and AC Spinner, said the position was temporary
which was contrary to Winters understanding of the position. After notifying the city of his
discrimination claims he additionally claimed he was wrongfully denied a job and the complaint
also called into question Spinner’s conduct. For example: Spinner “has a history and pattern of
ignoring, manipulating, bending and breaking” hiring policies to select firefighters he personally
wants to hire; Spinner is “perceived by coworkers as a deeply racist man;” Spinner has made
“highly inappropriate” comments about black people, Mexicans, women and members of the
LGBT community; Spinner “routinely” belittled Winters, and called him a “terrorist;” Spinner
often complained that Winters “stinks up” the station’s kitchen with “ethnic food,” even though
Winters cooked the same or similar food as the other firefighters; and Spinner said Winters’ “life
would really be miserable around here” if he was given a full-time position. The City approved
the settlement, Winters remains as a volunteer and Chief Spinner was to be promoted to the
Fire Chief’s position after the retirement of the Fire Chief. Unfortunately Chief Spinner died from
a heart attack soon after being placed in the interim fire chief’s position.

Finally:

Although not in the legal category and wearing a few professional hats, suicides and cancers are taking a
number of firefighters in addition to the steady state of heart attacks per year. Being married to a
psychologist, I become very aware of the issues of stress and depression facing firefighters from on and
off the job trauma. Balancing our professional life and personal life takes a toll on our personnel and
there is no shame in asking from help. I urge firefighters to examine their own stressors and seek help
from internal resources such as EAP or peer support groups, or find a qualified mental health
practitioner to help you through your crisis. Even when we can see our fellow firefighters in crisis, please
step in and intervene in that crisis by offering assistance and support.

As a health care practitioner (my other hat) there is an increasing incidence of cancers in the firefighters.
Are the numbers actually greater, or is there an increased awareness that cancers are killing us? I
believe it is the latter, but none the less, take care of yourself. You will need to provide adequate
documentation of your exposures and developing cancers even if you live in a presumptive illness
covered state as each case is unique and scrutinized by your third party claim managers or your state
industrial insurance providers.
Decon, shower, wash your hands, wear your protective clothing, breath no smoke or contaminates in
post-fire overhaul, and most of all, get periodic checkups from your physician. Any lumps, bumps,
coughs, swelling of body parts or unusual moles or lesions need to be examined and cancers ruled out.
Periodic colonoscopies, PSA tests and prostate examinations, breast examinations and pelvic
examination for female firefighters are a must to ensure your continuing health. Exercise, eat healthy
and have a life outside the fire service will ensure longevity.

It is your responsibility to be safe, both in health and legally. Until next year, be safe.

Endnotes
Firelawblog.com – Curt Varone
Statter911 - Dave Statter
Firefighter Close Calls
Lexipol
Numerous Fire Periodicals
News Papers – Real News
Rumors and Beanery Conversations
Google