Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: I am a lieutenant and one of my subordinates has filed a sex discrimination lawsuit against the fire department, the fire chief, the deputy chief and seventy-five John Does. Given that the fire department only has seventy-five members, I am assuming that I and the remainder of my crew have been named in the suit. The lawsuit stems from this member being passed over for a recent promotion, but from what I understand she is now raising claims that she is being treated unfairly by her colleagues. She has never brought these concerns to me. The department is now investigating her claims.
As this member’s first-level supervisor and a union representative, many members have come to me saying they don’t want to work with her if she is going to throw out bogus claims to bolster her case about the promotion. They are concerned about being formally named in the lawsuit. My question is could the city put her on paid leave pending the results of an investigation? If we band together, can we force their hand with it? Is there any case law that you can think of off the top of your head?
Answer: Yes, there is a ton of case law on this subject. It all says: do not place her on administrative leave and do not take any other adverse action against her either individually or collectively. The easiest and surest way for you and your firefighters to find yourselves named in the lawsuit will be to take an adverse action against her.
Adverse actions may include transferring her, ostracizing her, ridiculing her, threatening her, increasing scrutiny of her, or disciplining her. Any of these actions can be considered retaliation. One of the most likely ways a fire department and individual firefighters can be held liable in a discrimination case, is by retaliating against the person who makes the complaint. ANY ADVERSE ACTION directed at that person can constitute retaliation.
Retaliation claims create an even bigger risk for you, your colleagues, and the department than her original discrimination claim. What that means is even if her discrimination claim proves to be un-winnable, if the fire department (OR ANY OF ITS MEMBERS) engage in retaliation against her, she can win the case. Therefore, it is essential that members DO NOT ENGAGE IN ANY FORM OF RETALIATION. Do not encourage other members to engage in retaliation and educate anyone who is even remotely considering taking an action that could be construed as being retaliatory of how harmful such an action could be.
Also, even though you are not personally named in the suit, you should get yourself an attorney as soon as possible. It would be wise for the city and/or the union to provide such counsel for you.
