FDNY Reverse Discrimination and Retaliation Suit Will Continue

An FDNY battalion chief who claims he was subjected to reverse discrimination and retaliation after reporting rumors about paramedic having sex with a firefighter in his fire station, has lost 13 of the 20 counts in his lawsuit, but he will be allowed to proceed on the remaining seven against the city and FDNY.

Chief Michael McGrath claims he was retaliated against after reporting misconduct by Paramedic Marilyn Arroyo. Chief McGrath alleges that he initially reported hearing rumors that Arroyo had sex in the firehouse to an EMS chief, who failed to investigate. He thereafter initiated his own investigation, and passed that information on to fire department investigators.

He claims that shortly after he reported the results of his investigation, he was transferred from a prestigious Battalion Commander’s position in Battalion 47 to a staff position responsible for producing a monthly newsletter. He further alleges he was placed under investigation for harassing Arroyo, and the department never investigated his allegations against her.

In 2017, Chief McGrath filed suit in US District Court against Arroyo, the city of New York, FDNY, Fire Commissioner Daniel L. Nigro, Fire Chief James Leonard, EMS Chief Steven Russo, and Mayor Bill De Blasio. The original complaint contained 14 counts, but an amended complaint was filed last year containing 20 counts. At the heart of the case is an allegation that the department took the side of a Hispanic female paramedic against a Caucasian male battalion commander with 38 years of service. The case was assigned to Judge Nicholas G. Garaufis.

The defendants moved to dismiss all 20 counts, leading to a lengthy ruling handed down last week by Judge Garaufis. The details and the legal analysis is beyond what could fairly be addressed in a single blog post. To summarize Judge Garaufis’ rulings on the 20 counts, I offer the following breakdown, with MTD standing for the defendants’ Motion to Dismiss:

  1. 42 USC § 1981 – MTD granted
  2. 42 USC § 1983 – MTD granted
  3. 42 USC § 1985 – MTD granted
  4. 42 USC § 1986 – MTD granted
  5. Title VII Employment Discrimination – MTD granted
  6. Title VII Hostile Work Environment – MTC granted
  7. Title VII retaliation claims – MTD denied as to city and FDNY, granted as to the Supervisory Defendants
  8. NY State Human Rights Law – MTD denied as to City and FDNY, granted as to individual Defendants
  9. NY City Human Rights  Law – MTD denied as to City and FDNY, granted as to individual Defendants
  10. First Amendment Violation Against the City – MTD granted
  11. First Amendment Violation Against the Supervisory Defendants – MTD granted
  12. Tortious Interference with a Contract – MTD granted
  13. Intentional Infliction of Emotional Distress – MTD granted
  14. Breach of Contract – MTD granted
  15. Title VII retaliation claims – MTD denied as to city and FDNY, granted as to Supervisory Defendants
  16. Title VII Constructive Discharge – MTD granted
  17. NY City Human Rights Law – MTD denied as to City and FDNY, granted as to individual Defendants
  18. ADA – MTD granted
  19. NY State Human Rights Law – MTD denied as to City and FDNY, granted as to individual Defendants
  20. NY City Human Rights  Law – MTD denied as to City and FDNY, granted as to individual Defendants

The end result is that the city and FDNY remain in the suit as lone defendants. As for the other named defendants, Judge Garaufis ordered: “The Clerk of Court is respectfully DIRECTED to terminate Defendants Arroyo, Russo, Leonard, de Blasio, and Nigro from the case.”

For those interested in the factual details of the case as well as the legal wranglings , I am providing the Amended Complaint (which includes a copy of the original complaint) and last week’s ruling.

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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