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Lawsuit Accuses FDNY of Discrimination Against Vietnamese Firefighter

A man claiming to be FDNY’s only firefighter of Vietnamese descent has filed a lawsuit against the city in Manhattan Supreme Court. Minh-Bao Pham claims he has been subjected to a hostile work environment, race discrimination and retaliation since he was hired in 2005.

The suit names Lieutenant Peter Sollene, Deputy Chief Michael McPartland, Deputy Chief Robert Carroll, and Captain James Sheridan as defendants and alleges they "participated directly in the unlawful discrimination, retaliation and other unfair employment decisions and actions taken against the Plaintiff.”

The complaint also names an unspecified number of “John Does and Jane Does”, members of the FDNY as defendants. According to the complaint, Pham claims:

  • “[H]is colleagues constantly referred to him by using racially derogatory names, such as "Charlie," "Chink," and "Gook." These highly offensive slurs were used in front of Mr. Pham's supervisors despite his complaints against the usage of such racist slurs. Instead of properly addressing this discriminatory behavior, his supervisors condoned and encouraged the disparate treatment of Mi. Pham by laughing at the harassment.
  • “In addition to the derogatory names, several firefighters engaged in malicious and harmful behavior against the Plaintiff by frequently throwing firecrackers at him. Although his superiors witnessed the blatant unlawful treatment of Mr. Pham, they refused to reprimand any of the culprits.”
  • “[I]n 2006, the Plaintiffs wife went into pre-term labor and delivered a stillborn child. Because of his loss, Mr. Pham was granted two weeks of leave. When he returned to work after his leave, he was publicly chastised by his colleagues. They referred to him as "lazy" and accused him of using his loss as a means to miss time off of work. Notably, when a similarly-situated non-Asian colleague of his, had a wife that suffered a miscarriage in her first trimester, the members of the firehouse amicably organized their schedules allowing him to take off as much time as he needed. Further, they sent him flowers and gift baskets whereas Mr. Pham never received such support.”
  • “As a result of his supervisors condoning the discriminatory treatment the Plaintiff was forced to endure, the Plaintiff was continually segregated and tormented by his colleagues due to his race. Such behavior included a coworker removing Plaintiffs full dinner plate away from him while he was eating, and throwing it into the garbage.”

In 2007, Pham filed an EEO hostile work environment complaint, and was placed on light duty for stress. He alleges his complaint was never investigated. In 2008 he  filed a second EEO complaint which prompted an immediate escalation in  the harassment he received at his firehouse. Pham then requested a transfer.

  • “In anticipation of being transferred from Engine 207, the Plaintiff went to his assigned firehouse to collect his gear. When he arrived at the firehouse, his gear was hanging from a noose. Such an action was in retaliation for his complaints of discrimination.”
  • “Prior to his transfer, Mr. Pham went to speak with Engine 55's Captain after learning it was one of the firehouses he may be transferred to. During this meeting, the Captain at Engine 55 told Mr. Pham that he was not wanted at Engine 55 since he has heard negative reports about him.”
  • “The racial discrimination and retaliation continued unabated at Engine 55. Mr. Pham was again subjected to a pervasive pattern of disparate treatment as the only Vietnamese firefighter. Specifically, Mr. Pham was denied scheduling privileges enjoyed by his similarly situated non-Asian firefighters such as being able to work 24 hour shifts. Mr. Pham was only allowed to work a 24 hour shift when it benefitted a non-Asian colleague.”
  • “Moreover, the Captain and supervisors of Engine 55 discriminatorily excluded him from the firehouse's mural. The mural contains pictures of all members of the firehouse. A space was purposely left blank for where the Plaintiffs picture was to be. This signified his supervisors' discriminatory and retaliatory animus against him, and that he was unwelcome.”
  • Throughout his time· at Engine 55, his supervisor, Defendant Somme, a lieutenant, and his colleagues constantly used the derogatory term "Chink" in Mr. Pham's presence. Despite Plaintiffs many complaints, his colleagues and Defendant Sollene continued using these slurs.

Pham filed a third EEO complaint in October, 2012, and sought help from the Counseling Services Unit.

  • In discriminatory and retaliatory fashion, an EEO attorney responsible for investigating Plaintiffs complaint accused Mr. Pham of "playing the system," downplaying the effect the torment that Mr. Pham was enduring.

Pham was then given a light duty assignment at FDNY headquarters where he claims:

  • Defendant Sheridan, a Captain, ordered Mr. Pham to work in the tool room. Mr. Pham notified Defendant Sheridan that he was unable to do so because he had a lifting restriction. Defendant Sheridan refused to acknowledge his restriction and forced him to work in the tool room.
  • On or about November 20, 2012, Mr. Pham was injured while working in the tool room. He exacerbated prior work-related injuries to his neck and back.
  • On or about February 1, 2013; M. Pham went to his Firehouse Engine 55 to retrieve his helmet and uniform gear. Soon after, Mr. Pham discovered a noose located inside the pocket of his jacket uniform and knife slashes inside his helmet.
  • Mr. Pham… was subjected to an interrogation on or about February 5, 2013 by Kevin K.anesaka, Esq. Throughout the interrogation, Mr. Pham was treated with great hostility and subjected to false accusations that he was at fault for the noose and his helmet being slashed, and that the discrimination and retaliation the Plaintiff was being subjected to was his own fault. Undoubtedly, this interrogation was punishment for speaking out against the unlawful employment actions he was experiencing on account of his race.

Pham’s complaint lists six counts:

  • Count I – Race discrimination and harassment under state law
  • Count II – Retaliation under state law
  • Count III – Aiding & abetting violations of state Human Rights Laws
  • Count IV – Race discrimination under city law
  • Count V – Retaliation under city law
  • Count VI – Aiding & abetting violations of city Human Rights Laws

The complaint seeks unspecified compensatory damages, injunctive and declaratory relief, as well as punitive damages, costs and attorneys fees.

Unlike many of the discrimination cases that we see that are brought initially in state court, this case is not going to be removed to federal court: the plaintiffs only alleged discrimination under state law.

Here is a copy of the complaint. Pham v New York

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Comments - Add Yours

  • Andrew

    Be interesting to find out why he didn't press Federal claims as well.

    • http://firelawblog.com Curt Varone

      Andrew

      I am assuming because his attorneys did not want the case to be removed to federal court. There are a couple of reasons why that might be:  jury make up, procedural strictness (federal court is pretty strict and the judges more demanding than state court), and rules of evidence. Federal discrimination law also requires the victim to have filed an administrative complaint with the EEOC or state counterpart within 180/300 days of the first act of discrimination. State law claims often do not have that limitation.

       

  • Vince

    Curt,

    thanks for the insight on how and why claims are filed in state or federal court. With consideration of the Vulcan Society case, and it being tried in Federal court, with the more stringent rules, seems to further buttress the fact that FDNY has some serious diversity issues. 

    • http://firelawblog.com Curt Varone

      Vince

      I don't think there is any serious debate on that issue. The only debate is as to the cause for the diversity issue – and the city's efforts to address the problem.

      I cannot imagine that case being brought in state court. As a matter of fact, my recollection is that it was brought by the US government and the Vulcan Society intervened as a plaintiff.