Mass Firefighter Sues for FMLA Discrimination

Was it sick leave abuse or Family Medical Leave Act (FMLA) discrimination that blocked a firefighter’s promotion last year? That is the question that is now before a Federal District Court in Massachusetts.

Watertown firefighter Scott Carton claims he was wrongly bypassed for promotion to lieutenant in September, 2011 in part because he used FMLA sick leave to attend to his wife. Carton lost his appeal to the Massachusetts Civil Service Commission who ruled on September 20, 2012 that the Watertown Fire Department was “reasonably justified” in selecting a lower ranked firefighter.

The case has its beginnings back in 2003 when Carton was first reprimanded for his abuse of sick leave. According to the fire chief at the time, Carton had a pattern of using sick leave after working overtime. In 2004 and 2005 he was given written warnings for abusing sick leave, allegedly for a pattern of using sick leave before and after taking personal days or vacations, and after working overtime. Carton claimed that some of his sick leave in 2005 was FMLA protected, but he accepted the written warning without filing a grievance or appeal.

The next problem arose in 2008 when Carton was again issued a written warning, this time for an excessive use of sick leave. Carton claims that his use of sick leave in 2008 was FMLA protected.

Carton came in 3rd on the 2009 promotional list for lieutenant. After the first two members on the list were promoted, Carton was first on the list. In January, 2011, he was bypassed for a temporary promotion based his “history of frequent absenteeism.” Carton filed an appeal with the Massachusetts Civil Service Commission, but a settlement was reached prior to a hearing. The town agreed that it would not consider Carton’s usage of FMLA protected leave against him in promotional considerations.

In September, 2011 Carton was bypassed for a permanent promotion to lieutenant. He again appealed the decision to the state Civil Service Commission, who sided with the town. The Commission ruled that their role was merely to ensure that the department was “reasonably justified” in bypassing Carton.

“It is well established that disciplinary history and sick leave misuse are valid reasons for bypassing a candidate”

On September 21, 2012, one day after the Commission’s ruling was entered, Carton filed suit alleging  discrimination under the FMLA as well as breach of contract, namely breach of the settlement agreement from the first Civil Service appeal.

Here is a copy of the complaint. Carton v Watertown

Here is a copy of the Civil Service Commission ruling carton-scott-092012

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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