A Utah firefighter who was terminated earlier this year from the South Davis Metro Fire Department has filed suit claiming the department violated his due process rights and targeted him due to his age. Gary Schvaneveldt filed suit in US District Court for the District of Utah naming the department and Fire Chief Dane Stone.
Schvaneveldt was charged with a series of infractions that occurred between July 17, 2020 through December 20, 2020, including insubordination on several occasions, neglect of duty on several occasions, being out of uniform, refusal to wear PPE, refusal to comply with the COVID facemask policy, sleeping on duty (during training), and improperly reporting off sick.
Schvaneveldt was given a pre-termination hearing at which he appeared with counsel. Thereafter he was given a Notice of Termination on January 26, 2021 which listed a variety of justifications including:
- The effects of your behavior have resulted in many day-to day difficulties with the Department. Below are just a few:
- You are putting yourself and crew in harm’s way by not following safety practices and policies.
- Your Battalion Chief cannot trust you as an acting captain, which is required in your job description and which makes it difficult for your Battalion Chief to replace the captain position when your captain is off.
- Many of our officers, acting officers, and employees refuse to work with you because they do not want to deal with your obstinance and lack of concern for safety.
- You require a disproportionate management burden and, as a result, limit the time available to your captain to focus on newer and less-experienced employees or other responsibilities; and
- You are setting a bad example to new firefighters who were taught in the fire academy to respect officers, follow orders, and not to argue policies, principles, or orders during their duty.
Schvaneveldt promptly appealed that decision, arguing the department failed to comply with its own discipline policy and considered events that went beyond dates listed in the hearing notice. On June 4, 2021, a hearing officer upheld the termination ruling concluding that:
- “There is simply no evidentiary support for any contention that had South Davis conducted the investigation described in it’s [sic] policies, the outcome of this case would have been different.”
- He concluded, “Schvaneveldt was not harmed.”
- The Hearing Officer then rendered a decision that “This appeal is hereby decided in favor of South Davis Metro Fire and against Gary Schvaneveldt.”
Schvaneveldt then filed suit in federal court. The suit contends that his due process rights were violated by the department’s failure to comply with its own disciplinary policy and because the department considered events that happened years ago. The suit also contends the department was scrutinizing his behavior because of his age (48 years old), as part of a plan to replace older personnel with younger firefighters. Quoting from the complaint:
- The Termination Letter went far beyond the “behaviors documented from July 17, 2020 through December 20, 2020,” as set forth in the Notice (of Pre-Disciplinary Hearing).
- Instead, the Termination Letter referenced behaviors “[b]eginning in 2006 and continuing throughout your career with the Department …,” and stated that the termination was “[b]ased on your history” and “years of corrective action,” concluding “For these reasons, SDMF is terminating your employment, effective immediately.”
- Section 1016.1 of the Manual requires that if the complainant against a member is the member’s supervisor, that supervisor shall not undertake the investigation of the complaint. Instead, another supervisor must investigate, presumably in order to protect the objectivity of the investigation.
- This was never done in Gary’s case.
- In none of these cases was there any independent investigation by a supervisor who was not the complaining supervisor.
- Under the requisites of Policy 1016, when an investigator is appointed, he “should respond to all complaints in a courteous and professional manner.”
- Such was not complied with in Gary’s case. Those supervisors who wrote the notes upon which Chief Stone relied, made such characterizations of Gary as follows:
- Behaving like a “toddler” (twice),
- a “management nightmare, and I hope that I never have to experience another employee like him in my career,”
- “a deceitful, insubordinate employee that is a management and energy drain for anyone associated with him,” and
- “a management vacuum.”
- “I felt as though I was trying to motivate my 9 year old son, not a grown adult,”
- “Again, it was like trying to manage a 9 year old boy and not a grown adult with 18 years in the fire service.”
- Such observations, which Chief Stone included as a basis upon which the Notice of Pre-Disciplinary Hearing was founded, were neither courteous nor professional.
- In violation of the SDMFD’s policies, as well as the principle of due process, the termination was not based on only those allegations set forth in the “charging document” – the Notice of Pre-
- Disciplinary Hearing. The termination was based on matters not charged against Gary, and against which he was not given the opportunity to defend.
The suit seeks damages and a court order reinstating Schvaneveldt to the department. Here is a copy of the complaint:
This case brings to mind two of our upcoming Advanced Discipline programs. The first is our Toxic Employee class on July 28, 2021. The second program is the Credibility Determinations class on August 25, 2021. In both we focus on the importance of avoiding conclusory terms when drafting a disciplinary report and/or a disciplinary finding. Instead, the focus must be on documenting what occurred factually. Saying an employee is acting like a “9-year-old,” or is “deceitful” is conclusory, and can be problematic when the case gets to court. Stick with the facts that support the conclusion.