Another FDNY EMT Challenges Hiring Age for Firefighters

An EMT with FDNY who was denied a firefighter’s position due to his age, has filed suit alleging age discrimination. Daniel P. O’Donoghue filed suit earlier this month naming FDNY Fire Commissioner Daniel Nigro and the City of New York as defendants. O’Donoghue filed the suit pro se in US District Court for the Eastern District of New York.

The case is similar in some respects to one covered here two week ago by another FDNY EMT who challenged the hiring age for firefighters. In that case, Charles J. McCloskey sought review of the civil service commission’s denial of his appeal to be appointed to the fire academy. More on that case.

O’Donoghue’s suit is different in that it is not seeking to appeal a civil service decision, but rather is directly challenging the maximum age limit of 28 years as illegal under federal, state and local law. According to the complaint:

  • A maximum age to apply for a firefighter exam has been set at 28 years of age by the defendants.
  • The defendants have allowed exceptions to the upper age limit for those with prior military service. In these cases the maximum age can be as high as 35 years of age.
  • Because of racial discrimination in prior exams, further maximum age exceptions were allowed for those who were discriminated against in the 1999 and 2002 exams and who applied for the open competitive exam offered in 2012.
  • The plaintiff is 31 years old who is presently employed as an FDNY Emergency Medical Technician (EMT).
  • Over the past years, critical to the plaintiffs age, the only valid open competitive exam offered by the FDNY was the above mentioned exam given in 2012.
  • In 2012, at the age of 25, the plaintiff took the open competitive exam mentioned above and received a passing score of 98.
  • In 2013, the plaintiff joined the ranks of the NYFD as an Emergency Medical Technician.
  • Since 2013, the only “promotional” exam for the position of Firefighter was offered to EMTs in 2016.
  • In August, 2016, at his first and only opportunity, the plaintiff applied and eventually took the “promotional” exam to the position of Firefighter and received a passing score.
  • As a part of his application for “promotion” to firefighter, the Plaintiff successfully completed the rigorous Candidate Physical Ability Test required of all firefighter recruits.
  • In 2017, the Plaintiff was eventually denied “promotion” to Firefighter grade by the FDNY because he was over the age of 28 years at the beginning date (8/3/2016) of the application period (Plaintiff was 3 months over the maximum age).
  • The FDNY made no attempt to accommodate the plaintiff and those eligible candidates who were denied entry into the class only because of the arbitrary lottery selection.
  • Over the past few years, members of the City Counsel have proposed legislation to increase the maximum age for NYFD Firefighter calling the present upper age limit of 28 archaic and discriminatory.
  • Nationwide, the FDNY has one of the most restrictive upper age limit. Most cities do not have an upper age restriction for those who wish to become firefighters. Those that do have an average age limit of 35.
  • On information and belief, according to the ADEA, the existence of arbitrary age discrimination in employment must be forbidden because it burdens commerce and the free flow of goods in commerce.
  • On information and belief, according to the ADEA, States and Municipalities may discriminate by age in the hiring of Firefighters but only if the selection of a maximum age limit is pursuant to qualified bona fide hiring plan that is not a subterfuge to evade the disqualification of workers on the basis of their age.
  • On information and belief, the defendants have not shown that their age discrimination is pursuant to a qualified bona fide hiring plan that is not a subterfuge for blatant discrimination based on age.
  • On information and belief, the defendants plan to limit the maximum age to 28 for some and 35 for others is a subterfuge established to avoid the employment of older workers not based on their ability or for any legitimate non discriminatory reason.

The complaint alleges age discrimination under federal state and local law. Here is a copy of the complaint.

You may recall that the McCloskey case covered here two weeks ago involved another FDNY EMT who challenged the hiring age for firefighters. In that case, the state supreme court ruled in an Article 78 proceeding that the age limit was valid. An Article 78 proceeding is a statutory form of judicial review for administrative determinations in New York. O’Donoghue’s lawsuit is not likely to be affected by the ruling in McCloskey.

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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