Firefighter Sues Claiming She was Demoted To Firefighter Because She Is A Mother

A female firefighter in a volunteer fire department in Pennsylvania has filed suit claiming she was demoted from her position as a lieutenant because she is a mother. Jessica Etzle filed suit against the Lower Swatara Fire Department in U.S. District Court for the Middle District of Pennsylvania.

The suit alleges Etzle had been a lieutenant from January 2014 to January, 2016 when she was demoted to firefighter by Fire Chief Jason Brown who told her “’you have a six (6) year old son’ and … needed to be home and be a mother to her son.” Etzle claims after her demotion, a male firefighter was promoted to replace her.

The two-count suit contains one count of gender discrimination under Title VII of the Civil Rights Act of 1964 and one count of gender discrimination under the Pennsylvania Human Relations Act.

The Lower Swatara Fire Department’s web site states that it is a “100% volunteer department” and that it is a separate entity from Lower Swatara Township. The township is not named in the lawsuit, nor does the complaint describe exactly what type of entity (municipal, private non-profit, association) the Lower Swatara Fire Department is.

An initial challenge for Etzle’s federal court claims will be whether Title VII applies to volunteers. Title VII is intended to prohibit discrimination in employment. Volunteers are not regarded as employees for many purposes.

There is some case law suggesting that volunteers can be employees for purposes of Title VII, but the test is rather complicated (big surprise there). For the Legal Eagles, check out Nationwide Mutual Insurance v. Darden, 503 U.S. 318 (1992), which adopted a thirteen-part common-law test for employees under Title VII, that includes a consideration of compensation and benefits. The Darden test was created to differentiate between employees and independent contractors, but courts have applied it to determine if a volunteer is an employee for Title VII purposes.

Not surprisingly the complaint is drafted to make it sound as if Etzle is an employee. Take a look:

  • In September 2003, Plaintiff was hired as a Firefighter.
  • Plaintiff was well qualified for the position and performed well.
  • In January 2014, Defendant promoted Plaintiff to Lieutenant.
  • Plaintiff was well qualified for the position and performed well.
  • In May 2014, Defendant assigned Plaintiff fire prevention duties.
  • These duties included, but were not limited to, conducting fire prevention work at schools and daycares, working in the “smoke house trailer” to teach children about fire prevention and administrative work.
  • In early 2015, Justin Sheneult, Lieutenant resigned from his position.
  • Sheneult’s resignation made Plaintiff the only Lieutenant at Defendant.
  • This however this did not affect Plaintiff performing her job duties.
  • On January 4, 2016, Plaintiff met with Jason Brown, Fire Chief, John Weikle, Assistant Fire Chief, and Ken Phillips, Deputy Fire Chief.
  • Brown informed Plaintiff that she could not be a Lieutenant anymore because “you have a six (6) year old son” and she needed to be home and be a mother to her son.
  • Weikle stated further that Plaintiff needed to be a mom instead of being in the fire station.
  • Defendant demoted Plaintiff to the position of Firefighter.
  • In addition, Defendant also took the fire prevention duties away from Plaintiff.
  • Later that night on January 4, 2016, Defendant filled the two (2) open Lieutenant positions with Kevin and Chad Zimmerman.
  • Upon information and belief, both Kevin and Chad Zimmerman have children.
  • In February 2016, Plaintiff complained to Mr. Weikle about her demotion
  • Weikle could not provide Plaintiff with a valid reason for her demotion and took no action to address Plaintiffs complaint.
  • On April l, 2016, Plaintiff filed a Charge of Discrimination with the EEOC alleging gender discrimination.
  • Later in April 2016, Plaintiff met with Michael McKillip, President, and complained about being demoted from Lieutenant because she was a mother and notified Mr. McKillip of Mr. Brown’s and Mr. Weikle’s comments during her demotion.
  • McKillip informed Plaintiff that he would look into the matter and get back to her.
  • However, Mr. McKillip did not contact Plaintiff following her complaint.
  • In or arolmd June 2016, Defendant became aware of Plaintiffs filing with the EEOC.
  • Defendant’s employees ignored Plaintiff and created an uncomfortable working environment for her.
  • In or around July 2016, Plaintiff ceased reporting to Defendant due to the working environment.

There is no mention in the complaint about whether officers are elected or appointed, and if appointed for how long those appointments as for.

Here is a copy of the complaint: Etzle v Lower Swatara

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.
  • mr618

    Would it affect the case one way or the other if it were a paid-on-call department, as opposed to strictly volunteer? Here in Maine, POC departments are generally considered volunteer (as opposed to career), especially since the compensation usually just barely covers gas expenses for the year, never mind time at trainings, meetings, etc.

    • CurtVarone

      I think it would! If the firefighters are compensated – enough to qualify as part-time employees – then this would indeed be to her benefit. What gives me pause is that the complaint does not indicate that her wages were reduced as a result of her “demotion”.

      In addition – knowing how many volunteer fire companies appoint their officers… some are elected… some are appointed by the fire chief, also gives me pause to wonder what is going on here. Unlike a career/civil service department, a promotion in many volunteer fire companies is not a life-time appointment. Is a female lieutenant who is not voted in a second time as a lieutenant at a subsequent election the victim of gender discrimination? And if she was appointed – consider this: Fire Chief A is elected as fire chief for 1 or 2 years and he appoints a female FF to be a lieutenant. Fire Chief B is elected 2 years later and decides he wants someone else to be a lieutenant. The complaint is silent about the process for promotions… and in my mind that is a very important consideration. Certainly if the promotion was tested… or based on qualifications, it would be to Etkle’s benefit.

      What is problematic is what Chief Brown is alleged to have said to her about being a mother. He may have said that trying to kind about his decision not to want her to be a lieutenant… but quite obviously it makes it appear that is decision was based upon gender stereotyping.

  • John Bean

    What is unclear to me, perhaps due to not being familiar with the department, is determining monetary damages. Was the plaintiff a compensated employee? There are conflicting references (100% volunteer vs. hired).

    • CurtVarone

      That is likely to be the biggest issue in the case.

x

Check Also

PA Chief Arrested With Minor

A Pennsylvania fire chief has been removed from office following his arrest last night. Chief Aaron Powell, 46, of the Versailles Volunteer Fire Company, was charged with public lewdness and corruption of a minor after he was caught with a 17-year old girl engaging in sexual activities.

Pennsylvania Fire Company and IAFF Local Sued In Federal Court

A female firefighter employed by a volunteer fire company who was fired earlier this year over a Facebook post, has filed suit against the department and the firefighters’ union claiming her termination was retaliation, gender discrimination and a breach of the union’s duty of fair representation.