Minneapolis Captain Files Sexual Harassment Suit

A Minneapolis fire captain has filed suit against the department alleging she is the victim of sexual harassment and retaliation.

Vicki Jung alleges that after she reported a fellow fire captain, Tom Fellegy, for sexual misconduct and harassment in 2014, she was retaliated against. According to the Star Tribune, Jung’s suit accuses Fellegy of calling her into his office in November 2014, exposing himself, grabbing her wrist and repeatedly asking her: “What are you going to do, Vicki?” Fellegy later earned the nickname, “the Groper.”

Jung claims that once she reported Fellegy’s conduct she was retaliated against. The suit was filed in Hennepin County District Court earlier this month.

The present lawsuit is not Jung’s first against the Minneapolis Fire Department. In 2014 she sued in Hennepin County District Court claiming retaliation and whistleblower violations. That case ended up being removed to US District Court, where Judge Donavan W. Frank gave the following overview of Jung’s claims, which may be helpful in putting the current allegations into context:

  • In 1994, Jung began working for the City’s Fire Department as a firefighter.
  • In 1999, Jung was promoted to Fire Captain. In November 2003, Jung was diagnosed with leukemia. After her treatment, Jung considered not returning to firefighting because her doctor advised against it. However, in early 2007, Jung was offered a position as a hazardous materials inspector. In January 2007, Jung was transferred from medical leave to a full time position as a staff captain hazmat inspector.
  • In January 2011, the Fire Prevention Bureau, which was responsible for hazmat inspections, moved from the Fire Department to the Department of Regulatory Services. Jung remained with fire administration as a Staff Captain, where she worked for Assistant Chief Cherie Penn At this time, Jung performed personnel services, helped with fire inspections, and handled other miscellaneous duties.
  • On July 19, 2011, Penn noted the following about Jung’s performance: Mid-year: Staff Captain Jung meets the requirements associated with her first responder certification. She is expected to participate in the required training associated with the newly established firefighter licensure mandated by the state. Captain Jung has experienced a few delays in reporting to work due to illness(es) but makes adjustments to ensure her weekly time schedule is honored. Captain Jung has made adjustments and is still adjusting to the shift in her job responsibilities that took place on January 1, 2011. . . . She conducts herself in a professional manner but is reminded that office etiquette (voice levels and neatness) is to be observed, to wit the neatness of her cubicle has been the subject of discussions and is still a concern. I am confident that following this appraisal, this matter will be addressed.
  • In fall 2011, Jung posted on Facebook: “Why is the Minneapolis Fire Department working all this overtime? Why can’t they bring back some of their firefighters that we laid off?” Jung contends that both Penn and Fire Chief, Alex Jackson (“Jackson”) spoke to her about her Facebook post, making it clear that they did not like it. Jung reported Jackson’s comments to Steve Kennedy (“Kennedy”), Human Resources Investigator, and told him that she felt that she was being retaliated against.
  • Jung also asserts that around the same time, she learned that Penn had a subordinate, Robert S. (“R.S.”), do Penn’s college homework while R.S. was at work. (Id. at 88.) Jung testified that R.S. called her “25 times” and told her he was sick of doing Penn’s homework.
  • On October 12, 2011, Jung e-mailed the Human Resources (“HR”) director, Pamela French (“French”). Jung told French she had some things to report anonymously. Jung claimed that she could not go to her supervisors or her own HR contact for fear of reprisal.
  • On October 13, 2011, Jung met with Kennedy to complain about Jackson and Penn. After the interview, Jung e-mailed Kennedy alleging that Jackson and Penn were retaliating against her because Penn was in the office and Jackson talked to her about her Facebook posts. Later that evening, on October 13, 2011, Jung lodged an anonymous complaint (the “Ethics Complaint”) to the Ethics and Compliance Employee Hotline, contending that Penn had been “misusing her power and status by asking coworkers to do her homework.” Jung also stated: “I am terrified I will be retaliated against.” The next day, Community Risk Reduction Officer, Cassidy Anderson wrote to Kennedy and French: “[Jung’s] fear of retaliation is valid. The dynamics inside MFD headquarters are incredibly dysfunctional, inappropriate, and unethical, to name a few.”
  • In an e-mail dated October 21, 2011, Jackson and Penn were formally informed of the anonymous complaint against Penn. Kennedy interviewed witnesses, including Jung, Penn, and Jackson. A final report on the Ethics Complaint was issued on November 29, 2011, finding that the ethics allegation was not substantiated by the investigation.
  • When Kennedy told Jung about the findings, Jung asked: “Are you kidding me? What about the mayor’s office, don’t they know about this?” and “Can I go talk to the mayor’s office?” To which Kennedy responded: “You can walk right over there right now and talk to them.” Jung did so. Jung alleges that Chief Jackson was angered by this and shouted about it in the office.
  • Jung asserts that after the Ethics Complaint and investigation, Penn treated her differently, for example by requiring Jung to verbally notify the front desk every time she left the office to use the bathroom and demanding that Jung maintain a strict work schedule.
  • On November 14, 2011, all administrative staff began to report to Penn. Shortly thereafter, Penn held a meeting of subordinate staff captains and asked them to sign a document entitled “Administrative Staff – Expectations.” Jung signed this document. Id. The document included directives on timeliness, absences, dress, tidiness, and work-place etiquette.
  • On January 6, 2012, Penn directed Jung to attend an 8:00 a.m. staff meeting. Jung did not attend, as she did not arrive until 8:30 a.m. (which Jung claims was her normal start time). Jung was asked to meet with Penn and Human Resources Generalist Beth Toal, at which time Penn and Toal presented Jung with a document entitled “Expectations” dated January 6, 2012. This document addressed topics such as appropriate written and verbal communications over the telephone, management of confidential information, and the restriction of “house calls.” Jung refused to sign the document.
  • On January 10, 2012, Jung initiated a retaliation complaint, alleging that Penn was retaliating against her for lodging the Ethics Complaint. Jung claims that Penn had increased surveillance of her at work:
  • Well, when they amped up their surveillance, it was like you had to be at work – when I started downtown, you could be to work any time you wanted as long as you did your eight hours, you could just go home. You could break it up, you could do four here and four there.
  • [Penn] made it very clear to me that I no longer had that. She was like, “You’ll be here every day at this time.” Because she’s the assistant chief at that time.
  • On January 13, 2012, Kennedy interviewed Jung about her complaint, during which Jung reported, among other things, that: Penn forced Jung to change her long-standing work schedule; Penn refused to acknowledge Jung’s contribution of extra duties in HR; Penn scheduled mandatory meetings outside of Jung’s normal working hours but did not allow overtime; Penn disciplined Jung on January 6, 2012 with the “Expectations” letter; Penn intensified surveillance of Jung’s work activities; and Penn excluded Jung from an administrative meeting.
  • From January 21, 2012 to May 2012, Jung took a leave of absence to pursue counseling and therapy to cope with the alleged workplace hostility. Jung was diagnosed with PTSD, depression, and anxiety.
  • On February 8, 2012, the investigator released a report on Jung’s January 10, 2012 complaint of retaliation and hostile work environment, finding that Jung’s allegations were not substantiated by the investigation.
  • Jung returned to work in May 2012, and was assigned to work under Fire Marshall Perry Ebner. Jung maintains that during this time, Penn remained in Jung’s chain of command and continued to scrutinize her work performance and attendance in a retaliatory fashion. In particular, Jung claims that Penn told Ebner that Jung was too loud and inquired about Jung’s workplace activities and hours. Jung asserts that she reported the alleged retaliation to Ebner. Jung also asserts that Ebner began to monitor her closely. Jung contends this was in response to her reporting to Ebner that Penn was continuing to retaliate. Ebner spoke to Jung on several occasions in June 2012 about attendance and timeliness. On June 27, 2012, Jung was issued a written warning for being absent without leave (“AWOL”).
  • On September 28, 2012, Jung e-mailed Ebner, complaining about Penn and continued alleged surveillance and indicating that she might file a formal complaint. Jung later e-mailed Ebner, claiming that Penn had instructed her not to attend a training session. Penn denies that she told Jung or anyone else not to attend the training.
  • On November 8, 2012, Jung e-mailed Ebner, complaining of discrimination against her and others related to overtime availability, along with continuing complaints of retaliation. Around the same time, Jung injured her back at work while filing. Jung filed a workers’ compensation claim. According to Jung, when she told Ebner, he remarked: “Really? You hurt your back filing . . . That’s ridiculous.”
  • On February 11, 2013, Jung received her performance review for 2012, which was given by Ebner. The review gave “unsatisfactory” ratings for dependability/reliability in performing her assigned duties and for understanding and complying with orders as directed. Ebner commented: Staff Captain Jung late on more than one occasion to work during the time period of June 19-28, 2012. She also was absent from work prior to her shift ending. It was documented and she was given a written warning through the proper channels. Captain Jung performs many of the job functions as required. She currently does re-inspections and inspections as assigned. Captain Jung has not completed the required eight inspections per day as stated in MFD policy. She was told earlier in the year that she just had to do five per day. She has not met that minimum amount as directed. She completed a total of 99 inspections for the entire year of 2012.
  • On February 21, 2013, Ebner informed Jung that she and three others (including Ebner) were to be relocated to the Public Service Center (“PSC”) on February 27, 2013. Jung responded that she could not relocate from City Hall because she needed to be close to a restroom and the PSC was too loud. Jung asserts that this was a request for an accommodation. The parties dispute whether an interactive process was initiated, but in any event, Jung’s relocation was cancelled and she remained at City Hall.
  • On March 3, 2013, Jung e-mailed Kennedy and indicated that she was “ready to make a formal charge and or complaint of harassment and discrimination.” On April 19, 2013, Jung withdrew her complaint.
  • On March 13, 2013, Ebner informed Jung that she would likely be reassigned when the inspections she was assisting with were complete. In his initial communication, Ebner explained: In 2012, Chief John Fruetel (“Fruetel”) told Jung that she may be returned to fire suppression because of the elimination of her hazmat position. The Minneapolis Fire Department has 150 re-inspections or less outstanding to date. Both you and Captain Pierzina are continuing to do these inspections. Captain Pierzina anticipates them being complete within one month or less with a few outstanding. About two weeks ago I reported this information to Chief Fruetel per his request for an update. Based on this information, MFD will no longer have a need for an inspector to do the re-inspections since they no longer exist. As you are aware, all inspections (commercial and residential) have been reassigned to Regulatory Services, Fire Inspection Services per the direction of the City Coordinator and the Mayor. In light of all the said changes, Chief Fruetel will be reassigning you in the very near future for the better of the department to a different position once the re-inspections are more or less done.
  • Ebner later followed up to note that a final decision had not been made on her reassignment.
  • Jung asserts that from April to August 2013, she was excluded from Fire Education training exercises, and that when she asked about it, an HR representative told her it was because “We don’t think you’re fit for duty.”
  • On April 18, 2013, Ebner wrote to Fruetel: I am having great difficulty with Captain Jung keeping appointments for scheduled events. One of the main reasons is she has been frequently reporting off ill from work. Today is no exception. She has reported off four times in the past two weeks since you reassigned her to this position. Chief, even though she has no apparent work limitations according to Captain Kawaters, I am not sure she is fit for duty. Her physical ailments seem to stem from an injury of some type. My other main concern is previous emails sent to me and others within the department from Captain Jung expressing her need to be by a window, close to a bathroom and to work in a quiet environment. Again, there are no noted limitations on her workability that I know of, but her requests are not being met knowing she is now in a job that requires her to possibly be in front of large crowds, classrooms full of young children and other presentations in facilities that might not accommodate her needs. . . .
  • On July 1, 2013, Jung reported that someone was unlawfully accessing her e-mail when she was not at her desk. Personnel from Information Technology (“IT”) recommended that Jung practice better computer and password security.
  • On July 29, 2013, Ebner discovered that Jung left her computer unattended and unlocked. Ebner e-mailed Jung to remind her of computer security responsibilities. Jung claims that Ebner mocked her and called other employees to view her open, unlocked computer. On the same day, Jung reported to Kennedy and Toal that Jung was being retaliated against for reporting the Internet security breach and complained again about harassment and discrimination based on her protected status.
  • On August 1, 2013, Fruetel met with Ebner and Jung to inform Jung that she would be transferred to fire suppression. The discussion was memorialized in a letter. The letter explained: “This action is being taken because of the reorganization of Fire Inspection Services to the Department of Regulatory Services and the subsequent elimination of your position as the Hazardous Materials Inspector.” Fruetel testified that he moved Jung back to the station because her position at hazmat was eliminated on January 1, 2011, and because her work in inspections was substantially completed. Fruetel also maintains that he was unaware of Jung’s July 29, 2013 complaint at the time he decided to transfer Jung. There is record evidence that Fruetel conferred with Penn, who received a copy of Jung’s July 29 report of retaliation, before deciding to transfer Jung.
  • Jung asserts that her transfer back to the station was actually a demotion and that she was not permitted to have union representation at the meeting. Jung also asserts that the transfer resulted in a reduction in her hourly pay and an unfavorable restructure of her work schedule. For example, Jung asserts that her hourly wages decreased from $42.16 per hour to $29.84 per hour. In addition, Jung asserts that she was required to work more hours per year, and some 24-hour shifts. Defendants point to evidence that, due to increases in overtime availability, Jung’s annual income increased from $88,812.92 in 2011, to $89,003.61 in 2012, $97,250.32 in 2013, and $121,265.90 in 2014.
  • All sworn firefighters must be fit for duty, regardless of assignment. In an interview conducted by HR Investigator Elizabeth Adeniyi, Jung agreed that she was fit for duty to work fire suppression. When Jung returned to work after receiving treatment for leukemia, Jung was deemed fit for duty, including fire suppression. Fruetel testified that he did not question Jung’s fitness, only her performance: I never questioned the fitness for duty issue. This is more about a performance issue than it was fitness of duty, that there was a demonstration of an inconsistent level of performance and I never determined that to consider that a fitness for duty scenario.
  • On August 16, 2013, Jung reported to Kennedy that she was being treated in a retaliatory and discriminatory manner, and she sought accommodation: I believe some laws have been broken. It is because I have a disability status and because of possible protected other status[es] as well so that is blatant discrimination. No one else gets treated with such disregard in the office environment at city hall.
  • On August 26, 2013, Jung and two other employees (who were returning to work after back injuries) were made to endure training in extreme heat, and the training was eventually cancelled because of the heat.
  • In that complaint, Jung claims in early August, 2013, she repeatedly attempted to find out when she was to report to training and made herself available, but that no one told her where to report, and that on August 13, 2013, she was classified as AWOL for failing to report. This was later rescinded.
  • On October 10, 2013, Jung was interviewed regarding her August 16, 2013 report. Ultimately, and not until August 2014, Adeniyi concluded that evidence did not support a conclusion that Jung was treated differently, discriminated against, harassed, or retaliated against by Ebner. Jung asserts that the City continued to retaliate against her in various ways.
  • Jung worked as a firefighter until January 2015, at which time she took a leave of absence after injuring her back at work. Jung received worker’s compensation benefits until August 8, 2015. Jung is now on medical leave without pay.
  • On July 24, 2014, Jung filed the present action in state court.

The city was partially successful in winning the case on a summary judgment, although the court agreed that Jung should be allowed to prove her allegations of retaliation at trial. Judge Frank also made the following statement:

  • Thus, the City’s motion for summary judgment on [the retaliation] claim is properly denied. The Court cautions Jung, however, that the denial of summary judgment on this claim is not tantamount to victory at trial. While not sufficient to warrant summary judgment, it appears to the Court that certain evidence in the record will make recovery at trial difficult for Jung.

Here is a copy of Judge Frank’s full ruling in the case from last May. The city recently agreed to pay Jung $97,500 to settle the suit, plus another $135,000 to settle her workers comp claims.

An initial hearing in the latest suit is scheduled for November 18, 2016. More on the story.

 

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.
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