Second Alarm: Another Salvo Fired at FDNY Commissioner Kavanagh

Three FDNY chief officers who filed suit against Fire Commissioner Laura Kavanagh last month, have filed a second lawsuit, this one accusing her of age discrimination. Deputy Chief Michael Gala, Deputy Chief Joseph Jardin, and Deputy Assistant Chief Michael Massucci filed suit in Kings County Supreme Court.

The suit names the city, Kavanaugh, and Deputy Commissioner JonPaul Augier as defendants. The earlier suit filed in the same court alleged that four plaintiff-chiefs were being retaliated against by the commissioner, and sought to block their demotions and/or reassignments. That suit has been removed to federal court.

The new suit alleges Commissioner Kavanaugh embarked on a campaign to replace senior FDNY personnel with younger employees. Chief Gala is 62, Chief Jardin is 61, and Chief Massucci is 59. Quoting from the complaint:

  • Defendants engaged in actual misconduct and unethical behavior.
  • Among several other methods and means of the conspiracy, Defendants (a) forced senior employees off medical leave (overriding the medical judgments of their doctors), (b) withheld or threatened to withhold earned or customary benefits from them, (c) cut off their computer access, and (d) leaked false information about them to the press.
  • When these methods failed to achieve Defendant Kavanagh’s intended result—bullying seniors into retirement—she resorted to more brutal means, such as demotions, humiliating reassignments, and public disparagement.
  • Although Plaintiffs are white males, Defendants’ campaign affected many women and people of color, including the highest-ranking African American woman in the Fire Department, who Defendant Kavanagh unceremoniously fired without cause on March 19, 2023, with her duties assumed by a younger replacement.
  • Defendants’ heinous campaign has had another core tool: to falsely disparage the victims.
  • At times, this was based on false allegations against the victim for misconduct, bias, or bullying on their part.
  • Defendants have used this ploy with respect to several of the Plaintiffs, even though none of the Plaintiffs—not one—has any disciplinary record or substantiated EEO claims against them.
  • Each Plaintiff served with distinction during and/or in the aftermath of the 9/11 terrorist attack in New York City.
  • The use of slander against these heroes shows the wanton depravity of Defendants’ scheme.
  • The Defendants had confidence that, when they leaked false information to the press, certain reporters would not challenge their narrative.
  • Other times, Defendants’ victims have been blamed, as a pretext for discrimination, for problems not of their making and, sometimes, for problems of Defendant Kavanagh’s making.
  • But the cynical ploy was the same: vilify the victims, drive others against them, and have them removed in favor of younger replacements.
  • Defendant Kavanagh’s illicit pattern and practice has one common thread: ageism.
  • Plaintiffs and other victims—all at or near the age of 60—were subjected to adverse actions, including harsh personnel actions, unfounded accusations of insubordination, reassignments, demotions, disparagement, and baseless attacks on their competence, regardless of race or gender.
  • As the leader of the conspiracy, Defendant Kavanagh encouraged and incentivized various individuals to join her illegal discriminatory aims.
  • Since her promotion to First Deputy Commissioner on January 31, 2018, Defendant Kavanagh has made many critical decisions without the benefit of the advice of her Staff Chiefs, the operational leaders of FDNY.
  • Her practice of ignoring their advice is a departure from customary practice at FDNY.
  • Unlike prior Commissioners, Defendant Kavanagh refused to meet with them.
  • Dozens of witnesses will attest to this, both uniformed and civilian.
  • More, Defendant Kavanagh’s hostile reaction to the Staff Chiefs’ mere expressions of concern over various plans she devised—concerns based on legal requirements, FDNY policies, collective-bargaining agreements, safety, and/or experience—was neither customary at FDNY nor appropriate for the head of a safety and crisis-management agency.
  • She branded the Staff Chiefs’ expressions of concern as misogynistic insubordination, which effectively cancelled the Staff Chiefs and their significant experience.
  • Ironically, Defendant Kavanagh inherited a department that was functioning at a very high level, by any objective indicator.
  • Instead of concentrating on preserving and maintaining the safety of New YorkCity residents and the firefighters within its ranks, Defendant Kavanagh focused her efforts on “revolutionizing” FDNY, including by repeatedly demanding undefined and unquantified “out-of-the-box thinking,” “fresh ideas,” and decrying “old thinking”—all classic hallmarks of ageist language—from her Staff Chiefs. She decried the “old guard.”
  • While it is natural for a new leader—male or female—to introduce new ideas and innovations to improve an organization, Defendant Kavanagh’s actions were bereft of any substance and merely intended to humiliate her older subordinates.
  • Defendant Kavanagh’s constant criticisms were generalized disparagements colored by ageist biases that were not tethered to promoting specific improvements.
  • She masked her discriminatory comments in the guise of transforming FDNY, but the context of her critiques was painfully obvious to those who witnessed them.
  • Although Defendant Kavanagh has publicly blamed Plaintiffs for insubordination as a basis for her decisions to act adversely toward them, this is patently false. Indeed, Defendant Kavanagh has never identified a single order of hers that any of the Plaintiffs defied, nor were any Staff Chiefs disciplined for any such defiance (since there was none).
  • To make matters even more difficult for the Staff Chiefs, including Plaintiffs, they were aware of decisions Defendant Kavanagh made that were either unethical or ill-advised, which sensitized them to the need to make sure she “understood the rules” and matters of safety, as she often seemed either oblivious of, uninterested in, or disdainful of those rules and safety issues.
  • The Staff Chiefs and other senior officers and personnel raised concerns with these and other decisions to Defendant Kavanagh, occasionally directly but often through her staff (because she wouldn’t meet with them).
  • The reaction was usually the same: instead of taking the advice of her experienced senior officers, Defendant Kavanagh cynically labeled their genuinely held opinions as insubordination and used it as a trope to cancel them.
  • Some media reporters lapped it up when Defendant Kavanagh’s proxies leaked adverse (and false) information.
  • The first major victim, shortly after Defendant Kavanagh became First Deputy Commissioner, was Chief James E. Leonard.

The suit goes on to list a number of ranking (older) chiefs who fell victim to Commissioner Kavanagh’s wrath, beyond the three named plaintiffs. The plaintiffs alleges violations of New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., and the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. Since the complaint does not allege violations of the federal Age Discrimination in Employment Act (ADEA), the case will not be eligible for removal to federal court, absent some sort of consolidation of these claims with the earlier suit.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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