Posts Tagged ‘firefighters’

Ct.: timed test for fire captain violates ADA

Lt. David Lenotti says the fire department of Stamford, Connecticut improperly denied him extra time on its test for promotion to captain even though he had a diagnosis of learning disability. A state human rights investigator has backed Lenotti’s complaint, which is scheduled for a Jan. 23 hearing, but the Stamford authorities beg to differ:

The city has never granted anyone extra time on the lieutenant’s or captain’s exams, said Felicia Wirzbicki, human resources generalist. … The reasoning is that lieutenants and captains are in charge at emergency scenes and have to make split-second decisions, Wirzbicki and other city officials said. Those decisions often are based on floor plans, hazardous material reports and similar documents, they said. Speed is an “essential function of the job,” the city argued. … “You don’t get extra time at a fire scene,” Wirzbicki said.

None of which seems to cut much ice with disabled-rights advocates:

“You’re supposed to give accommodations, period,” said Suzanne Kitchen, a clinical instructor and consultant for the Job Accommodation Network, a federally funded non-profit that provides employers with advice on disability rights. “No is never the right answer.”

That last sound bite is actually quite false as a legal matter; in fact Ms. Kitchen herself is described elsewhere in the article as correctly noting that accommodations may sometimes be refused under the law. But it does have quite a ring to it, though, doesn’t it? (Zach Lowe, “State official: Disability rights apply on fire captain test”, Norwalk Advocate, Jan. 15). Jeff Hall at Created Things comments (Jan. 16).

All of which is very much business as usual in today’s employment discrimination law. Long before the disabled-rights suits came along, fire departments had came under intense attack by feminist litigators seeking to invalidate testing of applicants’ physical strength, agility and so forth, particularly when timed tests were involved. I wrote about this history at some length in The Excuse Factory, a few of the highlights figuring in this 1997 magazine piece. An excerpt:

[In Brunet v. Columbus] Judge Kinneary also disallowed the city’s practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs’ lawyers, testimony had been given that “sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand.” In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, “anecdotal.” Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they’ve heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say “speed is critical” in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. “Opponents argue that it is not.”

Welcome O’Reilly Radio Factor listeners

I was a guest just now on the radio O’Reilly Factor, guest-hosted by KABC’s Doug McIntyre, to discuss the L.A. firefighter dog food hazing suit. A couple more background links on the story, to go with those collected by Ted above: Christine Pelisek, “Dog food caper”, L.A. Weekly, Nov. 21 (“for nearly a week after the original story hit the papers — a tale of racist America making a black man eat dog food — the print media all but squelched the ensuing developments. The only hint of a brewing debacle was an almost invisible, 2-inch-long “brief” in the Los Angeles Times on November 15.”) and Eric Berlin, Nov. 21 (discussing several stories on this site, and disputing the notion that dog food somehow historically evokes slavery) and Nov. 22.

Dog food suit update

We’d like to take credit, but: After talk-radio-flamed outrage over the City Council’s approval of a $2.7 million settlement for “racial harassment” for a 6’5″ African firefighter nicknamed “Big Dog” who was pranked with a meal of dog-food-spaghetti-sauce, the mayor vetoed the settlement. The “John and Ken Show” website posted photos of the plaintiff, Tennie Pierce, engaging in other pranks. Five council members backtracked after voters started sending cans of dog food to the politicians as a protest, which makes it unlikely the veto will be overridden, even though the settlement was approved 11-1. Hurt politically: the office of city attorney Rocky Delgadillo, whose office continues to defend the settlement. (Sandy Banks and Steve Hymon, “Fury on the airwaves undid bias settlement”, LA Times, Nov. 22)

Taxpayer bill for dog food meal: $2.7 million

Not including defense attorney costs. Jorge Arvelo served spaghetti with a dog food sauce to Tennie Pierce at his firehouse as a prank, and alleged racial discrimination. The three firefighters behind the joke said it was just firehouse tomfoolery, but Pierce’s attorney found a professor willing to say otherwise: “The association of a black man and dog food resonates with the deep historical roots of slavery and the corresponding dehumanization,” said sociologist David Wellman, who further opined that “[Blacks] have a gyroscope that picks up hostile stuff that somebody else would not see as hostile.” The City Council voted 11-1 to settle for $2.7 million; it’s not their money, after all. Pierce also gets to take a year off on fully paid administrative leave, and then collect a full pension. The LA Fire Department is 47% minority. (Sandy Banks, “Black firefighter settles suit over racial prank”, Los Angeles Times, Nov. 9).

Note to Los Angeles residents: I’ll eat dog food and let firefighters laugh at me for doing so for a tenth that price.

Update, November 22: Mayor vetoes settlement in response to taxpayer outrage.

Transit union not liable for bicyclist’s accident

New York City: “A judge has dismissed a lawsuit that claimed the union representing the city’s bus and subway workers was responsible for an accident that left a firefighter critically injured because workers went on strike. Matthew Long, 39, was run over by a private bus while he was bicycling to work during the December walkout. He sued the Transport Workers Union Local 100 in February, arguing the accident would not have happened had the union not gone on strike.” (“Judge dismisses firefighter’s lawsuit claiming strike responsible for injury”, AP/CourtTV, Jul. 7). For more on the lawsuit, see “Firefighter wants transit union to pay”, Gothamist, Feb. 14.

“Drunk driver sues truck maker”

By reader acclaim: an FBI agent who was pulled unconscious from his burning truck with blood alcohol level of 0.306, and subsequently pleaded guilty to drunken driving, “has sued the maker of his pickup because it caught fire after he passed out behind the wheel.” The lawsuit, against General Motors and dealership Bill Heard Chevrolet, says Clymer “somehow lost consciousness” — possibly the empty bottle of Captain Morgan Rum found on the passenger seat had something to do with that? — and that while he lay there with the engine running the 2004 Chevy Silverado “somehow” began to give off smoke from some sort of combustion, which may or may not be code for “theory to be filled in later”.

At sentencing in November — he drew a suspended 30-day jail term and 48 hours community service — “Clymer’s lawyer said his client wanted to take responsibility for his actions.” (Brian Haynes, Las Vegas Review-Journal, Apr. 14).

First things first

Not long after some 1,000 firefighters sat down for eight hours of training, the whispering began: “What are we doing here?”

As New Orleans Mayor Ray Nagin pleaded on national television for firefighters – his own are exhausted after working around the clock for a week – a battalion of highly trained men and women sat idle Sunday in a muggy Sheraton Hotel conference room in Atlanta. . . .

The firefighters, several of whom are from Utah, were told to bring backpacks, sleeping bags, first-aid kits and Meals Ready to Eat. They were told to prepare for “austere conditions.” Many of them came with awkward fire gear and expected to wade in floodwaters, sift through rubble and save lives.

“They’ve got people here who are search-and-rescue certified, paramedics, haz-mat certified,” said a Texas firefighter. “We’re sitting in here having a sexual-harassment class while there are still [victims] in Louisiana who haven’t been contacted yet.”

How much fear of litigation do you need to let a city burn to ensure no one accuses you of failing to protect against sexual harassment? We might be hearing more stories like this, except FEMA, again with its priorities straight, has told firefighters not to talk to reporters. (Lisa Rosetta, “Frustrated: Fire crews to hand out fliers for FEMA”, Salt Lake Tribune, Sep. 6 (via Instapundit)).

Chicago firefighters exam

In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score “well-qualified” as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, “Judge rules city fire exam biased”, Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, “Exam bias ruling may cost city $80 million in firefighter lawsuit”, Chicago Sun-Times, Mar. 24).

A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, “City ordered to promote white firefighters”, Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I’ve opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.

Update: the 2002 decision’s reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).

The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.

To protect, and serve, and sue

The traditional “firefighter’s rule” holds “that firefighters, police and rescue personnel accept an inherent risk of injury or even death in their jobs and generally cannot sue those they’re hired to protect. Their recourse is worker’s compensation claims, according to the rule. But lobbying by powerful unions and court decisions have led some states to limit the rule’s scope or rescind it altogether.” I’m quoted in the article criticizing recent moves away from the rule. “New Jersey is one of 11 states that allow police officers, firefighters and rescue personnel to file civil lawsuits when they’re injured through the negligence of individuals or entities.” (Tim Zatzariny Jr., “Police officers sue over injuries on job”, Camden (N.J.) Courier-Post, Aug. 30). For more, see Sept. 30, 2003; Apr. 1 and Jul. 16, 2004.

Sue the fire-shelter makers

Central Washington state: “Nearly three years after four local firefighters died in a wildfire, some family members are suing the manufacturer of the fire shelters they were using. … They claim the instruction manual for the shelters encouraged the firefighters to set them up on rocky terrain. But hot gas from the fire was able to seep in and kill them. The lawsuit names the manufacturer and the National Association of State Foresters, which helped write the manual.” (Craig Galbraith, “Thirtymile Fire Lawsuit”, KIMA-TV (Yakima, Wash.), Jul. 9). According to a Sept. 2001 press release from the office of Sen. Maria Cantwell (D-Wash.), the Forest Service report on the incident found that the deaths were not caused by faulty equipment. “According to this investigation, these deaths occurred due to poor judgment at several critical junctures and a failure to follow established procedures”. (USFS fire investigation reports).