Headlines Versus Reality: A Tale of Two Cities

A veteran FDNY Firefighter has been terminated and the headlines claim it is because he was wearing a shirt that was offensive to minority firefighters. What is the truth behind that headline, and why do so many of us stop with the headline?

It seems to have become a part of our American culture to accept headlines as fact, despite the fact we know we shouldn’t! Deflategate is a prime example where the headlines proclaiming “cheaters” doesn’t quite hold up under close scrutiny. That hasn’t stopped the haters from hating!!! From TV commentators to Jerry Rice and Joe Montana the lie gets repeated. To quote Adolf Hitler “If you tell a big enough lie and tell it frequently enough, it will be believed.”

That fact is even evident here at Fire Law Blog where folks read a headline, assume they know what happened, and without taking the time to read the post – let alone the court’s decision in a case – share their perspective on what they assume happened.

Maybe it is a function of our digital-age/ADD world where all we have the capacity to listen to are sound-bites. In a world were people skim a headline and assume they know the rest – we become easy prey for the spin-doctors. Control the headlines and you can make folks believe what ever you want them to believe. Keep repeating it and it becomes the truth.

Two weeks ago I posted about the decision of Administrative Law Judge Alessandra Zorgniotti in the case of FDNY FF Thomas Buttaro. Afterwards a number of folks commented and emailed me indicating that it was the first time the details of what ACTUALLY occurred had been aired publicly. The traditional media had been much too caught up with the sensational headline “Fireman Faces Axe Over Anti-Affirmative Action T-Shirts” to investigate the facts too deeply. Ironically, had they investigated, the story might have been a little inconsistent with the headline.

According to Judge Zorgniotti’s decision, it was not so much about the offensive shirts that FF Buttaro was wearing that caused her to recommend his termination, it was more about his blatant disregard of the orders of his superiors to stop wearing the shirts on duty that led to his termination. There were also some other things that went beyond the shirts that concerned Judge Zorgniotti and that were detailed in her 34 page ruling.

Fire Commissioner Daniel Nigro accepted Judge Zorgniotti’s recommendation last week and fired FF Buttaro. The headlines proclaimed the EXACT SAME THING they proclaimed when Judge Zorgniotti issued her ruling: “Brooklyn Firefighter Fired Over Anti-Affirmative Action Shirts”

Yesterday I received some additional information on what ACTUALLY appears to have occurred in the case. If what I received is accurate (and I have no reason to disbelieve it) it would appear that Judge Zorgniotti was guilty of “cherrypicking” the facts she chose to consider – highlighting ONLY the details that made FF Buttaro look guilty, while ignoring some pretty important details that suggest he’s been railroaded.

Let’s look at some of those details:

  1. Reading Judge Zorgniotti’s decision one would conclude the T-shirts at the heart of the controversy were clearly racist and offensive. What if they were not? What if it’s like Deflategate… the facts are that 11 balls were not 2 pounds under. Take a look at this quote from FF Buttaro’s Brief. Note that the notation “Tr.” refers to the page in the official transcripts of FF Buttaro’s hearing where the testimony appears, and “Ex.” Refers to Exhibits.

Judge Zorgniotti recommends the termination of this firefighter with over 16 years of impeccable service solely because he was wearing t-shirts supporting his fundamental beliefs and one African-American firefighter complained about them.

Based on these facts, one could only imagine that the shirts must have depicted a noose or burning cross or even a phrase containing the “N” word, but that is not the case. Actually, one of these shirts depicted an excerpt of the FDNY EEO Statement on the back of it. The other shirt was worn by the firefighter in question in solidarity with minority firefighters who wanted to uphold vigorous hiring and promotion standards and had the motto “getting it the old fashioned way – earning it” on the back. …

Merit Matters t-shirts, like many organizational t-shirts worn in firehouses, is dark blue and has the FDNY’s Maltese cross insignia on the front of it. An excerpt of the FDNY EEO statement is on the back of them (Tr. 568-69, 778, 999; Resp. Ex. A-B). The only witness at trial who claimed to find the shirt to be offensive was Firefighter Thomas. It is submitted that no reasonable person, no reasonable member of the public and no reasonable firefighter could find a shirt offense [sic] that bears the FDNY EEO statement on it. When asked about the shirts, Chief Kelty said that he does not find them offensive and it would be permissible to wear them to and from work, before roll call in the firehouse off duty and in the firehouse off duty after being properly relieved at the end of a tour without being in violation of the dress code (Tr. 645-48). Lieutenant Zuhlke also did not find the Merit Matters shirts to be offensive and noted that the shirts display the EEO policy on the back, which stands for equal protection (Tr. 829). …

The Minorities against Dumbing down the Fire Department (“MADD”) shirt is no more offensive that [sic] the above. MADD is not an organization or advocacy group as cited in the Report and Recommendation. The MADD shirts were designed by a minority firefighter who wanted to let people know that there were minorities who are also opposed to the Vulcan’s position in the lawsuit (Tr. 64). The concept is that there exists Hispanics and Blacks, among others, who do not have the same viewpoint as that which was taken by the Vulcan Society in their lawsuit (Tr. 618). Again, the MADD shirt is dark blue and says “getting it the old fashioned way – earning it” on the back (Tr. 67, 985; Pet. Ex. 2). …

A number of witnesses testified that they saw the shirts being worn in the firehouse and understood the MADD shirt to stand for the position that the FDNY entrance examination being watered down was a bad thing for the public (Tr. 67-68, 673, 789, 791, 951). Lieutenant Zuhlke’s position was that the MADD shirt was also not offensive, it did not represent an offensive message to the community and it was not disruptive of operations (Tr. 831). Even Captain Washington admitted that one could interpret the MADD shirt as that some minorities are against the position taken by the Vulcan Society in the lawsuit (Tr. 499). Firefighter Buttaro got the MADD shirt from a minority firefighter and wore it to show solidarity with minority firefighters who shared his viewpoint on merit-based testing (Tr.72, 782).

It is submitted that Firefighter Thomas never found the actual shirts to be offensive. Firefighter Thomas merely did not like Merit Matters because they expressed a different opinion than the Vulcan Society (Tr.295).

  1. Judge Zorgniotti concluded that “Black firefighters felt that Merit Matters was a racist organization and were not happy that it opposed integration in the FDNY.” Is Merit Matters a racist organization?

It is also clear from the Report and Recommendation that for some unknown reason, the ALJ has a biased opinion of Merit Matters. The ALJ goes so far as to suggest that Merit Matters is a racist organization that opposes integration of the FDNY. Nothing could be further from the truth. Merit Matters is an organization made up almost entirely of firefighters that requests equality for all on the job, across the board, and one set of standards to apply to everyone (Tr. 59, 560, 811). On its website, the mission statement of Merit Matters is clearly posted …

We believe in equal opportunity, not guaranteed results. We want standards to be high, meaningful, equally applied and blind to race, gender or ethnicity. Written and physical exams should ensure that the MOST QUALIFIED applicants are chosen; they should NOT be designed to have as many applicants as possible pass.

Merit Matters has a very diverse membership base (among the most diverse of all firefighter organizations) comprised of White, Hispanic and Black members, male and female members and members with various religious backgrounds (Tr. 494-95, 560, 617). In fact, one of the executive board members of Merit Matters is Hispanic (Tr. 563). Also, the Crown Heights firehouse had at least one Black firefighter who was pro-Merit Matters (Tr. 707, 713). Firefighter Buttaro strongly denied that Merit Matters supports preferential treatment for White people (Tr. 813).

Firefighter Buttaro testified that Merit Matters is not anti-diversity; it is pro-equality (Tr. 59, 186). Merit Matters believes that the harder the FDNY entrance exam is, the better qualified candidates will for be hired for the job; Merit Matters is not against diversifying the Department, but for the proposition that a watered down physical standard was not in the public’s interest or a good idea (Tr. 68, 187-88). Indeed, as a member of Merit Matters, Firefighter Buttaro strongly believes that it is in the public’s best interest to have the strongest and best, most agile members in emergency services (Tr. 187-88). Merit Matters is for preserving a merit based testing system, both physical and written (Tr. 186-87, 867-70). Even Chief Kelty and Firefighter Wheeler (both of whom are not a Merit Matters members) testified that they are familiar with Merit Matters and finds that it only stands for fairness and is not racist or anti-diversity or an offensive organization in any way (Tr. 642-44, 907-08).

  1. Judge Zorgniotti concluded that FF Buttaro knew that FF Thomas was a member of the Vulcan Society and wore the T-shirts repeatedly with the deliberate intent to annoy him. What if that were not the case? Take a look at this:

Among the most glaring errors in the Report and Recommendation is the assertion that Firefighter Buttaro knew Firefighter Thomas was a member of the Vulcan Society. The ALJ jumps to this conclusion despite the fact that Firefighter Buttaro denied that he knew Firefighter Thomas was a Vulcan (Tr. 184-85). Lending even more credence to this fact is that Firefighter Thomas admitted that he never told Firefighter Buttaro that he was in the Vulcan Society and, in fact, Firefighter Thomas never informed any of his co-workers in Engine 234 that he was a Vulcan Society member (Tr. 282). Lieutenant Dombrowsky did not know Firefighter Thomas was in the Vulcan Society either (973). Captain Washington testified that he never saw Firefighter Thomas wearing such a shirt identifying himself as a member of the Vulcan Society (Tr. 497-98). Lastly, there were no flyers in the Firehouse distributed by the Vulcan Society that published the names of its members (Tr. 283).

  1. Judge Zorgniotti found FF Buttaro guilty of creating a racially hostile work environment for FF Thomas typified by his objections to the shirts FF Buttaro was wearing. What if FF Thomas’s own testimony stated he did not feel like he was subjected to a racially hostile work environment?

The ALJ found Firefighter Buttaro guilty of the harassment charges for allegedly intentionally creating a hostile work environment for Firefighter Thomas. The evidence at trial again fell way short of the heightened standard required to show that certain speech is actionable harassment. Here, the ALJ hung her hat on three to five trivial incidents in the Record (which lasted no more than 15 minutes combined over an eight-year work history between the two firefighters in question and contained no racial slurs or physical confrontations of any kind). …

Both firefighters always maintained a professional relationship with each other in operations, at meals and at fire scenes through the balance of 2008, through 2009, through 2010, and through at least 2011 (Tr. 211-12, 275, 277, 527-28). The two firefighters worked plenty of tours together between 2005 and 2012 and although Firefighter Thomas did not like the way Firefighter Buttaro spoke to him, at times, Firefighter Thomas conceded that Firefighter Buttaro did not create a hostile work environment (Tr. 267-68). In fact, Firefighter Thomas reiterated at the end of his testimony that teamwork and job performance were not affected by their relationship, or lack thereof (Tr. 392, 394).

  1. Judge Zorgniotti’s ruling portrayed FF Buttaro as deliberately disobeying repeated orders to stop wearing the shirts on duty in an effort to annoy FF Thomas. What if the testimony in the case showed he only wore the shirt 3 times in FF Thomas’s presence after being asked not to and each was when he was off duty? In fact he complied with the orders of his superiors and the FDNY dress code while on duty.

the evidence at trial established that Firefighter Thomas only witnessed Firefighter Buttaro wearing a Merit Matters or MADD shirt three times after Firefighter Thomas informed him that he did not like the shirt. Moreover, all three times that Firefighter Buttaro wore the shirt Petitioner conceded that Firefighter Buttaro was off duty. These facts are undisputed. Let me say that again. The ALJ is recommending the termination of an employee whose greatest sin was wearing Merit Matters/MADD shirts three times off duty.

Where is the truth? I can tell you one thing, it is definitely not in the headlines. It may not be in Judge Zorgniotti’s decision. It may not be in FF Buttaro’s brief either.

Is FF Buttaro an insubordinate racist? Or is FF Buttaro the victim of race-baiting and political correctness gone awry – where anyone who stands up against reverse discrimination can be attacked, vilified as racist, and terminated in an effort to smooth over race relations with minorities?

Racists come in all colors – and if there is one thing that has become crystal clear to me over the years: we are all blind to our own racism, yet we believe we can see racism clearly in others.

If you think you are not racist, re-read the last sentence.

Here is Judge Zorgniotti’s decision: 14-2430

Here is FF Buttaro’s rebuttal brief: Post-Report and Recommendation Brief (00340525xA9C08) (4)

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Steve

    So what’s the truth? If the judge only picked and chose which facts to base her decision, what happens to her? Anything? Or can F/F Buttaro only be made whole by suing the judge and then having to endure that three ring circus? Also, can FDNY be held liable for their decision based on the judge’s ruling?

  • Bill

    Who established the fact that there is more than one “Race” other than the “Human Race”?

  • ny2223jv

    I hope he sues the Ball$ off the judge and the FDNY Remember the Deblake decision Reverse discrimination

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