NJ Appeals Court Affirms Ruling In Favor of Fire Department on Disability Claim

The Appellate Division of the New Jersey Superior Court has upheld a verdict in favor of the Cranford Fire Department’s decision not to hire a firefighter who failed a psychological examination. The suit was brought by Frank Rivera, who was passed over for a career position despite having served as a call firefighter for many years.

Rivera sued under the New Jersey Law Against Discrimination (LAD), claiming disability and military discrimination. As explained in the decision:

  • Plaintiff applied for a career firefighter position with defendant, Township of Cranford.
  • Defendant extended a conditional offer of employment to plaintiff, subject to the results of a background investigation, drug screening, medical examination, and psychological evaluation.
  • After a comprehensive evaluation, a licensed clinical psychologist declined to recommend plaintiff for the appointment.
  • He concluded that plaintiff, “at this time, does not possess the psychological characteristics deemed necessary to perform the duties of the position sought and is not considered to be ‘psychologically suited’ to that position….”
  • Because plaintiff did not pass the psychological evaluation, defendant did not appoint him to the career firefighter position.
  • In August 2015, plaintiff filed a complaint alleging defendant violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by failing to appoint him as a paid career firefighter.
  • Count one alleged “actual and/or perceived disability” discrimination. Count two alleged discrimination on the basis of his military service.
  • In 2004, plaintiff began volunteering at the Township Fire Department as part of the Explorer program, which allows minors to learn about firefighting.
  • The Fire Department consists of career paid firefighters and unpaid volunteer call firefighters.
  • The duties of paid career firefighters and unpaid call firefighters overlap in some respects. Both perform interior firefighting during structural fires, pull down ceilings and walls, and rescue people and animals. Both work in pairs and are exposed to dangerous and stressful situations. However, call firefighters are always closely supervised by career firefighters, and are limited in the duties they can perform.
  • In January 2008, plaintiff enlisted in the United States Marine Corps and took a four-year leave of absence from the Fire Department.
  • He served in the Marine Corps until August 2012; at which time he was “honorably discharged for medical reasons.”
  • During his military service, plaintiff served in several overseas locations, including Kuwait and Iraq.
  • He was disciplined twice for minor infractions and received alcohol counseling.
  • During his service, plaintiff was diagnosed with post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI).
  • He underwent therapy through the Veterans Administration in 2012 and 2013 for his medical and psychological issues, and receives disability compensation from the VA.
  • When plaintiff returned home in 2012, he resumed serving as a call firefighter in the Township.
  • He never told anyone at the Township or the Fire Department about the reason for his medical discharge from the Marines, or that he was diagnosed with PTSD or TBI.
  • However, plaintiff testified at his deposition that numerous members of the Fire Department had expressed negative opinions about his military service and mental health when he returned from Iraq.
  • He recounted two firefighters telling him that they heard “others at the firehouse . . . talking negatively” about him before he was up for appointment “and spreading rumors” that plaintiff: had a dishonorable military discharge and a DUI; was an alcoholic; and “the military gave [him] a stupid dog” because he was “crazy .”
  • The complaint factually asserted, among other things, that: (1) the LAD “prohibits employers from requiring employees to submit to medical examinations that are not job-related”; (2) defendant “unlawfully required [plaintiff] to submit to a pre-employment psychological evaluation that was not job-related”; and (3) defendant’s decision not to appoint plaintiff was based solely upon the results of the psychological evaluation, which he purportedly failed.

As explained in the decision, both sides battled over a number of difficult procedural issues, including burden shifting, the need for expert witnesses, and some discovery snafus. In 2018, a jury ruled in favor of the fire department, concluding Rivera failed to establish discrimination in violation of the LAD. As a result the judge granted judgment to the township, and dismissed the complaint.

Rivera appealed arguing that the trial judge made a number of erroneous rulings that warranting a reversal. The Appellate Division rejected each of Rivera’s arguments, affirming the trial court’s rulings along procedural grounds. The reasoning is a difficult read for non-attorneys. Here is a copy:

Update: 7/13/2020 – Request to Reconsider

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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