Terminated San Francisco Firefighter Seeks Reinstatement for Bill of Rights Violations

A San Francisco firefighter who was terminated in 2020, has filed suit alleging the city failed to comply with the California Firefighter Procedural Bill of Rights and denied him a fair hearing. Tarick Shamiyeh was fired for failing to meet the requirements of the job.

As explained in the complaint:

  • On or about January 9, 2020, Chief of Department Jeanine R. Nicholson filed a Verified Complaint against Petitioner arising from his failure of a Performance Improvement Plan.
  • The Chief alleged that Petitioner was unable to perform an essential skill for a firefighter and charged him with the following violations of the Department’s Rules and Regulations: Section 3921 (Inattention to Duty) and Section 3922 (Inaptitude for Duty/Incompetence).
  • The Chief recommended that the Commission terminate Petitioner’s employment with the Department.

The Fire Commission held evidentiary hearings at which Shamiyeh sought to exclude certain evidence due to violations of the Firefighters Procedural Bill of Rights. The Fire Commission rejected Shamiyeh’s request, and ordered his termination. He appealed that decision to the California Office of Administrative Hearings who upheld the Fire Commission.

That prompted Shamiyeh to file a petition in San Francisco County Superior Court. Quoting from the complaint:

  • The City’s decision is not supported by the findings and the findings are not supported by the evidence.
  • Shamiyeh was denied a fair hearing because the hearing before the Administrative Law Judge (ALJ) at the California Office of Administrative Hearing (OAH) did not permit a de novo review of the allegations against Shamiyeh; because the hearing before the ALJ did not permit the introduction of evidence; because the hearing before the ALJ applied the incorrect standard; and because the hearing before the ALJ misapplied the burden of proof.
  • The City’s decision to terminate Shamiyeh was an abuse of discretion and excessive.
  • At all times herein mentioned, Shamiyeh was a beneficially interested party, has exhausted all administrative remedies available to him, and has no plain, speedy, or adequate remedy in the ordinary course of the law other than the relief sought by this Petition.
  • Because Shamiyeh has a vested and substantial property right in his position as a Firefighter, this Court is required to exercise its independent judgment of the evidence, and abuse of discretion is established if the Court determines that the findings and the decision of the Commission are not supported by the weight of the evidence.
  • Because of the arbitrary and capricious actions on the part of the City, Shamiyeh is entitled to reasonable attorneys’ fees.
  • [The complaint then quoted relevant sections from the Firefighter Procedural Bill of Rights as follows:]
  • Punitive action or denial of promotion on grounds other than merit shall not be undertaken by any employing department or licensing or certifying agency against any firefighter who has successfully completed the probationary period without providing the firefighter with an opportunity for administrative appeal.
  • A firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter.
  • A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his or her personnel file. The written response shall be attached to, and shall accompany, the adverse comment.
  • If, after examination of the firefighter’s personnel file, the firefighter believes that any portion of the material is mistakenly or unlawfully placed in the file, the firefighter may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Any request made pursuant to this subdivision shall include a statement by the firefighter describing the corrections or deletions from the personnel file requested and the reasons supporting those corrections or deletions. A statement submitted pursuant to this subdivision shall become part of the personnel file of the firefighter.
  • It shall be unlawful for any employing department or licensing or certifying agency to deny or refuse to any firefighter the rights and protections guaranteed by this chapter.
  • The superior court shall have initial jurisdiction over any proceeding brought by any firefighter against any employing department or licensing or certifying agency for alleged violations of this chapter.
  • If the superior court finds that the employing department or licensing or certifying agency has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order or preliminary or permanent injunction prohibiting the employing department or licensing or certifying agency from taking any punitive action against the firefighter.
  • In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a fire department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the firefighter, the fire department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the firefighter whose right or protection was denied and for reasonable attorney’s fees as may be determined by the court. If the court so finds, and there is sufficient evidence to establish actual damages suffered by the firefighter whose right or protection was denied, the fire department shall also be liable for the amount of the actual damages.

Shamiyeh is seeking reinstatement, backpay, a civil penalty of $25,000 for each violation of the Procedural Bill of Rights, costs, and attorneys fees. Here is a copy of the complaint

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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