Legal Lesson Learned: Two dispatchers for the New Orleans Department of Fire, who were suspended 60 and 30 days each, win their appeal in court; discipline should only be imposed on those who were notified of the return-to-work deadline and could have reasonably returned to New Orleans on time.
On September 19, 2007, in Eddie Fuller and Wanda Newsome v. Department of Fire, the Court of Appeals of Louisiana, 2007 La. App. LEXIS 1895 (can be read at www.lexisone.com) reversed the discipline, writing in a 3 to 0 decision, "In our opinion, these two firefighters, both with unblemished disciplinary records, did the best they could under horrific circumstances to return to work as quickly as possible. To apply an across-the-board deadline for return was arbitrary and capricious."
Evacuations
Dispatcher Eddie Fuller was on duty when the hurricane struck. His firehouse flooded, and he was evacuated first to Delgado Community College, and then to Baton Rouge. Dispatcher Wanda Newsome was on vacation when Hurricane Katrina struck. She evacuated to Atlanta, along with her daughter and grandson.
The New Orleans Fire Department decided that September 22, 2005 was the deadline for all personnel to return to work. While volunteer dispatchers from other departments were helping out, the department decided a "deadline" needed to be imposed for all employees to return to work.
Dispatcher Fuller returned on September 30, and after a Peer Review Board hearing, the fire department superintendent suspended him for 60 days. Dispatcher Newsome returned on September 29, and was suspended after a board hearing for 30 days. They both appealed to the city's Civil Service Commission, which sustained the discipline on these two employees, finding the September 22 return to work date was reasonable and uniformly imposed on all fire department personnel.
No Knowledge Of Deadline
The Court of Appeals disagreed since neither dispatcher had ever been informed of the deadline. Under Louisiana law, the reviewing court should not reverse the decision of a civil service commission "unless the decision is arbitrary, capricious or an abuse of the commission's discretion." Arbitrary or capricious means "there is no rational basis for the action taken by the Commission."
The Court cited the testimony of Dispatcher Eddie Fuller. After he was evacuated to Baton Rouge, "He testified that (his chief) told him that he was 'on his own' at that point. Mr. Fuller specifically asked (the chief) if that meant not to return to duty, and was told that only Suppression (not Communications) was being let into the city." Fuller then contacted his wife, who had driven to Dallas with their three children, and she picked him up in Baton Rouge. Thereafter he continuously tried to reach his chief by cell phone or text messaging, but to no avail. He did reach other dispatchers, who told him that dispatchers would not be allowed back into New Orleans. After the hurricane passed, he rented a one-way car and reported back to work on September 30. Only then did he learn of the September 22 deadline.
Dispatcher Wanda Newsome had driven to Atlanta with her daughter and grandson. A fellow dispatcher told her on September 9 about a city contact number to call. She called the number for a week, and was never able to get through and leave a message. On September 14, she was finally able to reach the assistant supervisor of communications. He informed her to return to work "when you can." When she tried driving back, another dispatcher warned her that the city was being shut down because of the approach of Hurricane Rita. When this passed, she left her daughter in Atlanta, who was already enrolled in a school, and drove her grandson to his mother in Houston. She then drove to Baton Rouge for inoculations, and returned to work on September 29. She then learned for the first time of the "deadline" of September 22.
Arbitrary and Capricious
The Court concluded that the Civil Service Commission's decision to uphold the discipline of these two dispatchers was indeed "arbitrary and capricious." The Court wrote, "Every person in and around this City during the onslaught of Hurricanes Katrina and Rita is aware that communications, especially by cell phone, was practically non-existent." Therefore "we reverse the decision of the Civil Service Commission upholding the suspensions."
Larry Bennett is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, Prentice Hall/Brady (2007), that was recently selected for use by the National Fire Academy in its distant learning program. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page. You can contact Larry by e-mail at: [email protected] or at the University of Cincinnati at 513-556-6583.
