FDNY Firefighter Terminated Over “Racially Hostile” Merit Matters T-Shirts Files Suit

The FDNY firefighter who was terminated last February for wearing T-shirts in his firehouse that advocated merit based hiring and promotions has filed suit in federal court.

Thomas Buttaro was terminated after a black firefighter objected to the shirts he was wearing. The fire department’s investigation concluded Buttaro’s conduct created a “hostile work environment” leading to a trial before an administrative law judge who recommended his termination. Fire Commissioner Daniel Nigro accepted the judge‘s recommendation and ordered Buttaro terminated last February.

The details of that decision are here, as is my more in-depth post on the persistent problem of only reading headlines… comparing Buttaro’s case to Deflategate.

Buttaro, a 17-year FDNY veteran, is white. He filed suit last Thursday in US District Court alleging a variety of claims including violation of his First Amendment rights, violation of his right to equal protection, race discrimination, selective enforcement, state law employment claims, and conspiracy.

The complaint names the City of New York, Commissioner Nigro, Captain Paul Washington and Lieutenant Shawn Thomas as defendants. Captain Washington is the former President of the FDNY Vulcan Society, while Lieutenant Thomas was the firefighter who objected to Buttaro’s shirts. Lt. Thomas was a firefighter at the time.

The complaint outlines how Buttaro began running into problems with then-FF Thomas:

  • From at least the middle of 2011 Buttaro began wearing Merit Matters or MADD t-shirts (collectively, the “t-shirts”) at work openly while off duty in the firehouse, or while arriving or leaving for work.
  • In addition, during that same period of time, Buttaro regularly wore while on duty either a standard FDNY t-shirt under his uniform or one of the Merit Matters or MADD t-shirts. All these t-shirts are dark blue and none were visible under the uniform.
  • During this period of time, when Buttaro wore a Merit Matters or MADD t-shirt as an undershirt underneath his uniform, he was never told that he was “out of uniform”.
  • Nor was Buttaro ever told that he could not wear the t-shirts in the firehouse while off duty.
  • Thomas first noticed that other Firefighters were wearing Merit Matters or MADD t-shirts by at least mid-2011, when the t-shirts became a popular item with members of the Fire Department.
  • When Thomas first noticed the t-shirts, he did not object or even believe that either t-shirt was offensive.
  • On May 6, 2012, Thomas, Dan Dombrowsky, Chris McSorley, three Firefighters in the Crown Heights firehouse, were in the kitchen discussing the difficulty of getting an assignment to a special operations unit in the Fire Department when Thomas stated that he (Thomas) could not get that assignment because the Fire Department “didn’t want his kind of people” in the special operations unit.
  • By making this statement, Thomas was suggesting that the Fire Department was discriminating against him because of his race, thereby intentionally instigating and provoking an argument about race.
  • At the time, Thomas was on a Fire Department list for promotion to a Lieutenant’s title, and all participants in the kitchen discussion knew that is was unlikely that anyone, including Thomas, would be transferred to the special operations unit with a potential promotion application pending.
  • Buttaro, who was also in the kitchen at the time but not participating directly in the discussion, interjected that the special operations unit was not being “racist” and sarcastically said that Thomas was not getting the assignment because he was a “whinny c _ _ t.”
  • In response to this comment, Thomas told Buttaro for the very first time that he objected to the t-shirt that Buttaro was wearing, which happened to be a MADD t-shirt, and requested that Buttaro take off the t-shirt.
  • On May 21, 2012, Buttaro and other Firefighters from the Crown Heights firehouse attended a day-long training session at Fire Department Headquarters.
  • At the end of the day, those being trained were schedule to go aclassroom for an EEO training session. At the EEO class, Buttaro intended to raise a question about whether a Firefighter had a right to object to the wearing of tshirts.
  • Although Thomas was not scheduled to work that day, he appeared in the classroom with others who were scheduled to conduct the class and proceeded to goad Buttaro because he was appearing in the classroom as an EEO instructor.
  • Upon information and belief, Thomas made special arrangements with the EEO office to appear that day in Buttaro’s training class for the purpose of goading Buttaro.
  • At the commencement of the class, one of the instructors asked the members attending the class if any of them had any questions or concerns. Buttaro responded by stating that he believed that Thomas should not be in the position of being an instructor in the class because Thomas had a conflict of interest.
  • However the following day, May 22, 2012, Thomas walked into the Fire Department’s EEO office and orally made a complaint about the events earlier that month involving Buttaro.
  • Upon information and belief, Thomas made the complaint to the EEO office because he was concerned that Buttaro was going to make a complaint against him because of his goading conduct and because Buttaro had raised an issue of a conflict of interest outside of the firehouse, where the vast majority of issues between Firefighters are resolved.

Some of the more YCMTSU allegations followed Buttaro’s testimony at a “Fairness Hearing” associated with the resolution of the race discrimination suit over FDNY’s hiring practices.

  • On October 1, 2012, Buttaro spoke at the Fairness Hearing, expressing his concerns and objections about the proposed remedial order.
  • Upon information and belief, Thomas and Washington were both personally involved in the District Court Discrimination Action as members of the Vulcan Society, which was an intervening plaintiff in the Action, and they both knew that Buttaro was going to make a statement at the Fairness Hearing.
  • One week after Buttaro spoke at the Fairness Hearing, on October 8, 2012, Thomas took a photograph of Buttaro wearing a MADD t-shirt while Buttaro was off duty in the firehouse.
  • Later that same day, Washington reported to the Fire Department’s EEO office that he received an EEO complaint from a firefighter within his command.
  • Upon information and belief, the EEO complaint that Washington reported on October 8, 2012 was from Thomas and was based in part on the fact that earlier that day Thomas took a photograph of Buttaro wearing the t-shirt.
  • Upon information and belief, Washington and Thomas discussed and planned for Thomas to take a photograph of Buttaro wearing the t-shirts for the purpose of providing a bogus claim that Buttaro was creating a hostile work environment.
  • Upon information and belief, Washington, aided and abetted by Thomas, reported the October 8, 2012 complaint to EEO in retaliation for Buttaro’s appearance and speech at the Fairness Hearing on October 1, 2012, which was attended by Washington.
  • Four days after Washington made his report, on October 12, 2012, the Fire Department’s EEO office issued to Buttaro a notice that he was being investigated for creating a hostile work environment.

Buttaro is seeking “A declaration that each and every one of the Defendants violated Buttaro’s federal constitutional and statutory rights and his rights under State and local law”; compensatory damages; and punitive damages against Commissioner Nigro, Captain Washington and Lieutenant Thomas.

Here is a copy of the complaint: Buttaro v City of New York

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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