An article published today by the Akron Beacon/Ohio.com raises serious concerns about the inadvertent impact that a discrimination suit is having on the safety of firefighters in the Akron Fire Department. The suit over promotional examinations that took place in 2004 has paralyzed the department, leaving just 68 of 120 officer’s positions filled.
Ohio.com provided the following information about the litigation:
- December 2004: Akron gives promotional exam for lieutenants and captains.
- January 2006: Firefighters file federal lawsuit, Howe v. City of Akron, alleging test was discriminatory.
- December 2008: Jury finds the test was skewed against white applicants for captain’s rank, and black candidates and those over age 40 for lieutenant, awards firefighters $1.8 million.
- July 2011: After successful appeal by city and a new trial on damages only, jury reduces award to $616,217.
- July 2011: Judge John Adams orders the city to promote 18 remaining plaintiffs.
- August 2012: Akron announces a test for lieutenants and district chiefs, but cancels after plaintiffs say they will request an injunction and order that they be involved in the process.
- March 2014: Adams appoints a court monitor to oversee the first round of promotional tests in each rank.
- May 2014: Akron Mayor Don Plusquellic proposes a lesser role for the monitor to speed the process; Adams turns down this request.
- Currently pending: Adams’ awarding of attorney’s fees and interest. Several appeals are pending in the 6th U.S. Circuit Court of Appeals.
As the number of officers in Akron has dwindled, the department used firefighters to act out of rank, even though they lacked the requisite training of permanent officers. The article points out that every shift between 8 and 13 firefighters act out of rank. Many firefighters have outright refused to accept the acting out of rank and IAFF Local 330 President Russ Brode was quoted as saying “We’re almost at the breaking point.”
The article gets into some of the behind the scenes legal and political wrangling, with the plaintiffs blaming the city, the city blaming the judge, and the judge blaming the city. Akron is by no means alone in terms of being paralyzed by major litigation.
Numerous fire departments are experiencing or have experienced similar challenges. It could be a protracted lawsuit that blocks promotions, as was the case in New Haven as Ricci v. DeStefano wound its way through the courts. It could be a protracted suit that blocks hiring, like FDNY experienced in United States of America and Vulcan Society, Inc. v. City of New York.
What are fire service leaders to do when confronted with this kind of litigation paralysis? Are there things we can do to avoid having the operational needs of the department ignored to the point that firefighter safety is called into question?
The answer is yes, but it is easier said than done.
Recognizing that a problem exists is the essential first step. In Akron there was no safety issue when the suit was first filed. The safety concerns gradually developed one retirement at a time over the course of 8 to 10 years. At what point does an officer shortage become critical? How do we define the shortage in a way that will be meaningful to attorneys and the court?
If we have 120 officer openings and 119 officers, it is hard to make a case that immediate action is warranted to protect firefighter safety. Similarly if we have 95 of 120 positions filled and an officer retires to leave us with 94, how do we make the case that some important threshold has been passed… what is magical about that one position? Nothing… Unfortunately following that same logic can allow us to get down to 68… or 58… or perhaps even less.
One strategy to consider when ever litigation threatens to delay promotions or hiring is to think through where those critical thresholds need to be, and place everyone involved (attorneys, other parties, and the court) on notice early into the case. Then as the litigation unfolds and those thresholds are approached, it will not be a surprise to anyone that the need to hire or promote immediately is on the table. More importantly, if no objections to the thresholds are raised when they are initially discussed, they are less vulnerable to being attacked by arguments such as “Why is 95 so special, why not 94, or 92, or 90?”
Once we have recognized that a problem exists and we have documentation to support our claim that action is warranted, the next step is to convince the attorneys. Theoretically this should not be a problem, but realistically it can be in some circumstances.
Some lawyers can be so… how shall I say… strong-willed that they may resist requests of this nature out of a concern that it may undermine their overall litigation strategy. To some attorneys, approaching the other side or the court with such a problem may be viewed as a weakness in a game where neither side wants to be the first to blink or show vulnerability.
When dealing with attorneys it is important that fire chiefs not be intimidated by them. Rather make your case as best you can and keep making it until the attorneys listen. In this regard, remember that lawyers cannot be expected to understand the impact of things like a lack of officers of the fire ground, mandatory excessive overtime, or understaffing without a full explanation. To a lawyer, being understaffed means the secretaries and paralegals need to stay later at night!
The next challenge is figuring out what to do about the shortage? Might the shortage be grounds to compromise with the plaintiffs and reach a negotiated settlement? (Note: see the concerns raised in the paragraph above on strong-willed attorneys and litigation strategy). Is an interim solution possible or are both sides in the underlying litigation so far apart that they cannot agree to an interim solution? Do we have enough evidence of irreparable harm that the court may be willing to grant temporary relief to the department and allow us to promote or hire over the other sides’ objection?
While the strategy of seeking an interim solution or getting the court to grant temporary relief (allowing the fire department to hire or promote a small number of folks to address the immediate needs) seems plausible, that option was rejected in the Akron case as well as in the FDNY litigation. As I said… easier said than done.
Here is more on the Akron case.