Tucson Prevails in Termination Suit

A probationary Tucson firefighter who was terminated in 2015, has lost the appeal of his wrongful termination suit. Michael Burroughs sued the City of Tucson claiming he was retaliated against because he filed a workers’ comp claim over a back injury he sustained in the fire academy, and because he was the victim of disability discrimination.

The suit was filed in 2016 in US District Court for the District of Arizona. In 2018, the district court concluded that Burroughs was unable to establish that he had a disability nor that the city retaliated against him. The court concluded that the city established a legitimate, non-discriminatory reason for his termination, namely that there were a series of problems that Burroughs had that were well-documented over the course of several months by different officers. The problems listed in the trial court’s decision include that Burroughs:

  • struggled with cutting a vent hole
  • did not know how to connect into the EBSS (emergency breathing support system) during a rescue drill
  • could not start the saw
  • struggled knowing where all the tools and equipment were located on LD16
  • [became] exhausted and dizzy and was unable to drill
  • could not don an airpack under 45 seconds
  • struggling with his Self-Contained Breathing Apparatus (SCBA) on several occasions;
  • becoming tired and frustrated, stating “I can’t do it,” and then stopped trying;
  • difficulty making a hose connection because he was tire[d]
  • slow getting station chores and cleaning done
  • failing to meet standards for performing routine station duties
  • poor search technique
  • difficulty advancing a charged transverse hose
  • difficulty dragging out the “victim”
  • ha[s] difficulty performing task [sic] under pressure and fire conditions.
  • potentially caused an exposure to a paramedic while on a call this evening… [h]e had blood on his gloves and was removing them… snapped off his glove splattering blood on the face of a nearby paramedic.

The final straw occurred on November 3, 2015 at a full alarm assignment to a report of smoke coming from an apartment when he ignored an order to remain with his assigned partner. His captain reported the matter, setting in motion Burroughs’ termination on November 10, 2015.

Burroughs appealed the district court’s decision to the 9th Circuit Court of Appeals who last week upheld the trial court’s ruling. In a rather terse decision the court concluded that:

  • The record fails to show Burroughs has a “disability” as defined by the ADA.
  • Nor does the record allow one to infer a retaliatory motive for Burroughs’s termination.
  • Regardless of who ordered his termination, Burroughs can at most point to their awareness of the supervisor’s injury report-which, we note, cleared Burroughs for regular duty.
  • Yet that alone scarcely alerts one to Burroughs’s efforts to exercise his workers’ compensation rights.
  • We are uncertain when Burroughs filed his workers’ compensation claim.
  • Indeed, aside from the supervisor’s injury report, the pages of which bear headers “Wkr Comp Form 100-A” and “Wkr Comp Form 100-B,” the record contains no evidence of Burroughs having filed such a claim.
  • The requisite knowledge is therefore lacking.

Here is a copy of the Court of appeals ruling:

Here is a copy of the district court ruling that outlines how well the TFD’s officer’s documented Burroughs’ deficiencies:

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.
x

Check Also

Utah Supreme Court Creates Exception to Professional Rescuer Rule

In a landmark decision the Supreme Court of Utah has ruled that a firefighter injured at an emergency scene can recover from a property owner despite the professional rescuer rule when the injury results from gross negligence or intentional conduct. The 3-2 ruling handed down last week will allow a suit filed by South Salt Lake firefighter David Scott Ipsen to proceed.

Syracuse Firefighters Prevail Over Right to Bargain Discipline

Syracuse Firefighters, IAFF Local 280, won an important victory last week in terms of maintaining their right to bargain over disciplinary matters. The city took the position that under recent case law, disciplinary matters were exempted from bargaining under the state’s Second Class Cities Law.