Hawaii Firefighter Loses Stress Related Discrimination Suit

A lieutenant who was initially demoted and then fired due to his inability to function under stress, has lost his lawsuit claiming disability discrimination.

Randy L. Baab was a firefighter at the Pacific Missile Range Facility at Barking Sands in Kekaha, Hawaii. He was promoted to lieutenant in 2011. He claimed he developed a stress related disability in 2014 after an assistant chief “yelled at” him during a training exercise, and thereafter began bullying him.

He was demoted in September 2015 after failing portions of a Transitional Performance Assessment Plan (TPAP) he and his union agreed to following his return to work from stress-related leave. He continued to experience stress related difficulties as a firefighter and was terminated in December 2015. His termination letter stated “failed to adhere to performance requirements as well as exercising poor judgment and making poor decisions that placed personnel and the Company at risk.”

Baab claimed his stress was due to the pressure he was being placed under by his supervisors. He filed discrimination claims with the EEOC and Hawaii Civil Rights Commission (HCRC), and ultimately a lawsuit in US District Court alleging a violation of the Americans with Disabilities Act.

In granting summary judgment in favor of the fire department, Harris Corporation, Excelis, Inc. (H/E), US District Court Judge Derrick K. Watson does a good job of explaining the law as it relates to claims of discrimination under the ADA.

  • Baab alleges that he was terminated because of his disability, in violation of the ADA.
  • Baab also argues that, despite informing H/E of his disability, he was denied a reasonable accommodation that would have allowed him to continue to work.
  • In employment discrimination cases, “disparate treatment” occurs when a plaintiff is singled out on account of his or her protected characteristic and is treated less favorably than others similarly situated.
  • The Court applies the burden shifting analysis derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to claims of disability discrimination.
  • Under this analysis, the plaintiff must first establish a prima facie claim for disability discrimination.
  • Such a claim requires demonstrating that “(1) he or she is an individual with a ‘disability’ within the meaning of the statute; (2) he or she is otherwise qualified to perform the essential duties of his or her job with or without reasonable accommodation; and (3) he or she suffered an adverse employment decision because of his or her disability.”
  • If the plaintiff establishes these elements, the employer may then rebut the prima facie case of disability discrimination by articulating a legitimate, nondiscriminatory reason for its adverse employment action.
  • Assuming, arguendo, that Baab has established that he was “disabled” within the meaning of the ADA, he has nonetheless failed to demonstrate that he was “qualified” for the job from which he was terminated.
  • H/E has provided substantial evidence regarding its legitimate business reason for Baab’s termination—i.e., Baab’s repeated failures to perform the essential duties of his job as a Fire Fighter, which jeopardized the safety of all concerned.
  • [Judge Watson then listed the following statements that were in the record from various fire officers as examples of Baab’s conduct:]
    • Broyles… [sought] Baab’s termination “based on his . . . decisions that place[d] personnel and company at risks [sic]”
    • Garrigan stating, after observing Baab’s performance during a “‘simulated’ structure fire” training exercise on November 16, 2015, he “considered Lt. Baab to be a threat to safety and urged the immediate removal of him from all Fire Fighter duties”)
    • Taylor opining, based in part on Baab’s performance during the August 13, 2015 Live Fire Drill, that Baab “is a serious liability to our Fire Dept—someone is going to get hurt sooner or later due to this gentleman’s incompetence and lack of mental stability”)
    • Termination Letter [stating] You failed to adhere to performance requirements” and exercised “poor judgment . . . that placed personnel and the Company at risk.”.
  • Moreover, H/E has provided evidence that Baab’s disability played no part in its termination decision.
  • Taylor … confirm[ed] that H/E “did not base [its]” decision to terminate Baab “on [his] age, alleged stress, or prior complaints of discrimination”);
  • Parker… stating that Parker is “not aware of any decision makers basing their decision” to terminate Baab on anything other than his failure to perform.
  • Baab has not provided any evidence of pretext that would undermine this evidence.
  • There comes a time in every first responder’s career when skills erode, reflexes slow, and the ability to perform like one may have been able to do in the past simply is not there. When these eventualities occur, it is incumbent on that responder to step aside.
  • Personal safety demands it. The safety of one’s co-workers demands it. The safety of the public demands it. For Baab, that time is now.
  • The Court hereby GRANTS Defendants’ Motion for Summary Judgment.

Baab has already appealed the ruling to the 9th Circuit.

Here is a copy of the decision: Baab v. Harris Corp._ 2018 U.S. Dist. LEXIS 98351

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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