Birmingham Firefighter Sues Over Unsafe Condition of Station

A firefighter in Birmingham, Alabama has filed suit in US District Court claiming conditions inside Station 27 violate the Occupational Safety and Health Act of 1970. Gary Michael Horsley Jr. claims the city has “condoned and tolerated unsafe and unhealthy working conditions” that include “asbestos exposure, mold exposure, diesel exhaust exposure, carbon particles exposure, excessive moisture, and poor ventilation.”

Horsley claims the conditions have contributed to a number of illnesses among current and former firefighters, himself included. After he complained in June, 2019, the station was closed for repairs and renovation. It was reopened in December, but Horsley contends it remains unsafe. According to the complaint:

  • Plaintiff began to develop multiple health problems and suffered a decline in his health after beginning work at Station 27.
  • Plaintiff made a complaint to the Defendants regarding the unsafe, unhealthy and, unsanitary living conditions of Station 27.
  • On or about June 27, 2019 Mayor Randall Woodfin held a press conference and stated that the safety of the City of Birmingham Firefighters and ALL city employees was his first and primary concern.
  • The building was well below OSHA and EPA standards.
  • Station 27 was closed for repair/renovation.
  • It was announced that the building would be occupied and functioning again starting December 23, 2019.
  • The building is still a hazard to the health and safety of any occupants.
  • Numerous firefighters, current and former, who have worked at Station 27 have come forward with health problems to include cancer diagnoses, lung and breathing diagnoses, as well as a host of other adverse health issues directly contributed to asbestos and black mold exposure.
  • Defendants failed to take any prompt and effective action reasonably calculated to result in the prevention of and/or remedy of the unsafe and unhealthy working conditions Plaintiff has been forced to endure.
  • The actions of the Defendants for their willfulness, wantonness, negligence, recklessness, oppression, aggravation, and/or violation of the Plaintiff’s rights has caused the Plaintiff to retain the services of the undersigned attorney to protect his legal rights. Consequently, the Plaintiff is entitled to recover his attorney’s fees in this case from the Defendants.

The suit names the city and Mayor Randall Woodfin as defendants. Here is a copy of the complaint.

From a purely legal (as opposed to an ethical or PR) perspective, the complaint faces a pretty significant obstacle: the OSH Act does not apply to municipalities. In fact here is the applicable language:

  • 29 U.S. Code § 652. Definitions
  • 5) The term “employer” means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.

Furthermore, Alabama is not an Approved Plan state, so the state cannot enforce the act. This case is therefore likely to end pretty quickly unless the complaint is amended.

Here is 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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