The year 2010 has passed, leaving the fire service with a number of interesting and important cases ranging from ground-breaking U.S. Supreme Court decisions to social media nightmares that cost firefighters' their jobs. The following is a fire lawyer's assessment of the most interesting and...
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Fourth: Nov. 9, 2010 — New York: The mass tort litigation arising out of the World Trade Center attack on 9/11 was finally settled for an estimated $625 million to $712.5 million. The unprecedented suit was filed in 2003 on behalf of thousands of firefighters, police officers, and construction and emergency workers who were exposed to toxic substances at the site. There were 10,043 eligible plaintiffs and payouts were expected to begin last month.
Third: Jan. 13, 2010 — New York: Federal District Court Judge Nicholas G. Garaufis ruled that the City of New York was guilty of "intentional discrimination" for not correcting a statistical imbalance between whites and minorities in the FDNY. The ruling essentially held that the failure to address disparate impact (unintentional statistical imbalance) discrimination over a long period constitutes proof of disparate treatment (intentional) discrimination. On Jan. 21, 2010, the judge ruled that the FDNY must hire two African American applicants and one Hispanic applicant for every five firefighters hired, change its hiring process, grant compensation to 7,400 minority applicants of the 1999 and 2002 exams, and give retroactive seniority to 293 individuals. The Jan. 13 and 21 rulings followed Garaufis' July 22, 2009, decision concluding that the city was liable for disparate impact discrimination.
Second: March 10, 2010 — Massachusetts: The U.S. First Circuit Court of Appeals handed down a decision in Foley v. Town of Randolph governing the First Amendment rights of high-ranking government officials such as fire chiefs. Following a house fire that claimed the lives of two young boys on May 17, 2007, Randolph Fire Chief Charles Foley made a public statement to the media that was critical of the town's poor staffing and inadequate funding of the fire department. The town suspended him for three weeks, and Foley responded with a federal lawsuit claiming his statements were protected by the First Amendment. The First Circuit upheld the trial court's dismissal of the case, concluding that Foley was not acting as a citizen when he made the comments, but rather as a public official pursuant to his official duties. Statements made by high-ranking public officials in their official capacities do not have First Amendment protection. The parties later settled the case.
First: May 24, 2010 — Illinois: The U.S. Supreme Court ruled that a discrimination case brought by African American applicants to the Chicago Fire Department in 1995 may go forward. The case focused on the 300-day time frame in which an aggrieved person must file a complaint with the Equal Employment Opportunity Commission (EEOC) following an alleged act of discrimination. The plaintiffs alleged the selection process was biased against minorities. The city denied any wrongdoing, but also argued that any act of discrimination that did occur took place when the test scores were announced. In the city's view, the plaintiffs filed their complaint outside of the 300-day period. The U.S. Supreme Court concluded that separate acts of discrimination occur each time individuals are hired off of a list that was based on a discriminatory process. Because plaintiffs filed their complaint within 300 days of a new class of recruits, the court ruled their case should be allowed to proceed. The case has been remanded back to the lower courts to determine whether indeed the process used was discriminatory.
Like the ocean, the legal landscape that confronts the fire service is in constant motion. Congress and state legislatures pass new laws, various agencies pass new regulations, and courts at federal, state and local levels make decisions that impact the fire service. What will 2011 bring us? Stay tuned.
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CURT VARONE has more than 38 years of experience in the fire service, retiring in 2008 as a deputy assistant chief (shift commander) with the Providence, RI, Fire Department. He is now the director of the Fire Service Division of Legal and Liability Risk Management Institute and most recently was the director of the Public Fire Protection Division at the National Fire Protection Association (NFPA). Varone is a practicing attorney licensed in Rhode Island and Maine and is the author of two books, Legal Considerations for Fire and Emergency Services and Fire Officer's Legal Handbook.