NY Captain Denied Promotion Due to Medical Emergency Sues Claiming Race and Disability Discrimination

An African American fire captain with the Albany Fire Department whose promotion to battalion chief was rescinded after he suffered an off-duty medical emergency, has filed suit alleging race discrimination and disability discrimination. The complaint also alleges the department used HIPAA protected medical information from his medical emergency to the decision to rescind his promotion.

Captain Jeremy Clawson filed suit in US District Court for the Northern District of New York on November 24, 2020 accusing the City of Albany of violating state and federal discrimination laws. Captain Clawson was only the second African American to ever be promoted beyond firefighter in the department, and the only African American officer in the department. He also has a history of diabetes, which the department was aware of.

According to the complaint:

  • On June 19th, 2017, the exam scores for the Battalion Chief examination were released and the Plaintiff was ranked first on the list of available candidates for the next available BC position
  • On January 15th, 2019, BC Coleman retired which meant that a permanent BC position became available.
  • On January 18th, 2019, the permanent Battalion Chief position was offered to Plaintiff by Chief Gregory and the Plaintiff accepted the position.
  • On January 22nd, 2019, the department published an Interdepartmental notice of Plaintiffs scheduled promotion to Battalion Chief.
  • On February 1st, 2019, Albany Fire dispatch received an early morning call for EMS to respond to an injured man at a local Dunkin Donuts.
  • The man was the Plaintiff who was not working on shift but had developed hypothermia symptoms including disorientation and confusion.
  • It was brutally cold the morning of February 1st, 2019 and Plaintiff’s diabetes disability made him more susceptible to certain types of environmental injuries, including frostbite and hypothermia.
  • Albany firefighters / Emergency Medical Technicians responded to assist the Plaintiff on the morning of February 1st, 2019.
  • The Plaintiff did not know at the time, but he had begun to exhibit documented signs and symptoms of hypothermia.
  • The Plaintiff was sent to the local hospital by ambulance.
  • AFD Chief Joseph Gregory alleged in his sworn affidavit in support of the Defendants EEOC position statement as follows “that later on the morning of February 1st, Deputy Chief Craig Wickham reported that Battalion Chief David Newton had heard about an incident that involved an AFD employee at Dunkin’ Donuts. Chief Gregory then asked City of Albany Police Department Deputy Chief Brian Hogan to watch the body camera video regarding APD’s response to the Dunkin’ Donuts 911 call. Deputy Chief Hogan said that nothing in the video was illegal, but that Mr. Clawson looked intoxicated.”
  • Chief Gregory further alleged in his affidavit in support of the employer’s position statement to the EEOC that he “discussed the matter with the City Corporation Counsel’s Office and City Mayor Kathy Sheehan. The Mayor and Chief Gregory then decided that due to Mr. Clawson’s public display of intoxication and feculent indecency the offer of promotion to the position of Battalion Chief should be rescinded.”
  • On Sunday February 3rd, 2019, during the Plaintiff’s next scheduled duty shift, the Plaintiff was called to the administration office with his union representatives, to meet with Chief Gregory, Executive Deputy Chief Joseph Toomey, Deputy Chief Maria Walker and Deputy Chief Craig Wickham.
  • The Plaintiff was presented with a copy of the AFD Dispatcher’s call ticket from the morning of February 1st, 2019.
  • The specific medical information regarding the Plaintiffs emergency dispatch is protected by HIPPA yet the Chiefs and or/their staff violated HIPPA to acquire the medical details of what happened the morning of February 1st.
  • The four Chiefs present at this February 3rd, 2019 meeting questioned Plaintiff about the February 1st, 2019 dispatcher’s call ticket from the morning of February 1st, 2019.
  • It bears repeating that the Plaintiff received medical attention for symptoms indicative of hypothermia on his day off. Plaintiff was not working at the time nor was he on his employer’s property.
  • Yet even though the Plaintiff’s medical emergency of the morning of February 1st, 2019 occurred while Plaintiff was not working for the employer nor on its property the employer nonetheless went out of its even violating HIPPA regulations to acquire the details of the incident.
  • At this February 3rd, 2019 meeting the Plaintiff was informed that his promotion was rescinded.
  • The four Chiefs present at the February 3rd, 2019 indicated in form or substance that they rescinded his promotion because of his medical emergency 48 hours prior for which EMS had to be dispatched to provide him with medical care and transported him to the hospital.
  • On February 8th, 2019, Cpt. David Kowalski (a Caucasian non-disabled person) was promoted to Battalion Chief.

The complaint alleges disability discrimination under state and federal law, and race discrimination under state law. While the complaint mentions a possible HIPAA violation, it was not alleged as a separate count.

Here is a copy of the complaint:

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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