San Francisco FD Hit With $3.7 Million Age Discrimination Verdict

A California jury has found in favor of 15 San Francisco firefighters on their age discrimination claims, and awarded them a total of $3.7 million.

The case was filed in 2010 on behalf of firefighters who claimed that a 2008 promotional process illegally favored younger employees. Among the allegations:

  • Based on information and belief, Plaintiffs, along with the other potential applicants … were… under the impression that this EXAMINATION would be administered orally.
  • [A]fter investing up to two years preparing for an oral examination, Plaintiffs, including all applicants for EXAMINATION, were forced to completely revamp, reevaluate, and re-posture the way they studied for an entirely different examination with mere notice of 30 days or less.
  • This change also diminished the chances of Firefighters over the age of 40 from performing well on the EXAMINATION, because older Firefighters, such as Plaintiffs, were trained in and have been using verbal methods to communicate fire-ground tactics and communications for 20 years
  • In addition, prior to the EXAMINATION, the DEPARTMENT's standard practice was to reward fire suppression experience by adding points to the score of veterans for every year of experience. However, on information and belief, [certain] Chiefs successfully lobbied Chief Hayes-White to cease this practice … [to benefit their children who did not have much seniority].
  • The testing format required that examinees write their answers in very small boxes
  • [Y]ounger Firefighters were predisposed to performing well on a written examination because prior training that the department provided to younger firefighters involved extensive written assignments and exposed younger Firefighters to medical terms of art. This training afforded younger Firefighters was not in place at the time senior Firefighters, such as Plaintiffs, entered the SFFD.
  • While serving radio dispatch younger Firefighters wrote numerous reports regarding the emergency calls they had taken, on a daily basis.
  • In writing these reports Firefighters were required to use, and therefore gained experience in using, medical terms of art. Through writing these reports younger Firefighters also gained experience summing up situations and abbreviating oral intake into written form. Older, more experienced Firefighters who entered the DEPARTMENT prior to 1997 did not receive this training/experience.
  • While serving ambulance duty the younger Firefighters were responsible for driving the ambulance and recording patient information
  • In writing these reports Firefighters were required to use, and therefore gained experience using, medical terms of art. Through writing these reports younger Firefighters also gained experience summing up emergency situations in the limited space available in small boxes on the injury report forms. Older, experienced Firefighters, who entered the DEPARTMENT prior to 1997, did not receive this training/experience
  • However, while working as radio dispatchers and serving ambulance duty these Firefighters gain absolutely no experience fighting fires. Performing radio and/or ambulance duty actually detracts from firefighting experience. Hence, the number of years served in the DEPARTMENT can be deceiving in terms of actual experience fighting fires. Those who entered the DEPARTMENT during or after 1997 have at least I to 5 years less experience fighting fires than those Firefighters who entered previously, due to the mandatory radio and ambulance duty service
  • The DEPARTMENT was aware of these inequities and the fact that younger Firefighters, having been in school recently, were savvy writers and test-takers

The complaint, a copy of which is provided below, alleged violations of California’s state discrimination laws, but did not allege a violation of the federal Age Discrimination in Employment Act. That fact is likely why the case remained in state superior court (where it was filed) as opposed to being removed to US District Court as we so often see with discrimination claims.

Here is a copy of the 64 page complaint, which alleged three causes of action and contains 328 paragraphs.   Danner et al

Last Monday the jury returned a verdict for the 15 plaintiffs awarding them each back pay to the date of the exam, a percentage of future damages for lost compensation, and $108,000 each for emotional distress, all totaling $3.7 million. It was not a unanimous verdict with the vote being 9-3.

My take on the case… how in the world did the plaintiffs’ attorneys convince nine members of a jury that “younger” firefighters were somehow automatically “savvy writers and test-takers”… "predisposed to performing well on written examinations", or even that less senior firefighters are automatically younger (many departments are dealing with the opposite because so many new hires are older and not necessarily "younger")… And how do you prove that not giving older firefighters oral exams is discriminatory? WOW… The complaint almost makes it sound like SFFD was using stone tablets and chisels to write back in the pre-1997 days… so naturally pre-1997 firefighters were only expected to communicate orally. Its probably a good thing for the plaintiffs that the case stayed in California state court. The case would probably not have gone very far in federal court.

More on the story.

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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