DC Firefighter-EMTs File Class Action Suit Over Pension

Five dual function EMT-firefighters with the District of Columbia Fire and Emergency Medical Services have filed a class action lawsuit alleging that the city has reneged on pension-related promises. The 57-page, 430-paragraph, 13-count complaint seeks to require the city to comply with its contractual and statutory pension obligations, as well alleging the city was motivated in denying them their benefits due to their race and gender.

Ricardo Clark, Melissa Turner, Michael Timmons, Vance Pitts, Jr., and Stephen Turner filed the suit in US District Court for the District of Columbia seeking damages of $100 million. They allege that contrary to what they were told, the city is refusing to credit their single-role EMS service toward their firefighter pensions, requiring them to work decades more to qualify for retirement.

The facts as explained in the complaint:

  • In the late-1980s, DCFEMS was still a heavily white male institution that strongly resisted integration by African Americans and women.
  • Because the enterprise was so rife with racism and sexism, for most African Americans and women, it was not a viable place to work. That is precisely why so many chose to be EMTs and paramedics instead.
  • Unlike DC fire which was predominantly white and male, EMS was predominantly Black, and it integrated women far sooner and more readily.
  • Even though there were substantially more calls for EMS services than for firefighting, because of the demographics of the firefighter union, and its political clout, the firefighters were always paid better and received substantially better benefits than the EMS.
  • DCFEMS was plagued with aging and unreliable equipment, which was costly to maintain and even more costly to replace. Thus the fire chiefs were scrambling to find appropriations to modernize engines and firefighting equipment.
  • In 2001, the D.C. City council passed legislation to govern and facilitate the merging of EMS personnel into the firefighting service.
    • Despite the intention of the City Council and the terms of the law, the fire chiefs and fire union resisted the integration. Plaintiffs aver that the resistance was based on a culture of racism and sexism, and a rejection of allowing African Americans and women into leadership roles in the fire service.
  • As a general rule, firefighters who have and maintain a paramedic certification, and who meet the continuing education and recertification requirements, are entitled to a 15% premium to their base pay.
  • In 2008, the merger of services was still taking place haltingly, and was running into several problems, including issues with transferring EMS personnel into the defined benefit pension plan.
  • To clarify the issue, in 2008, the City Council made amendments to District of Columbia Code §5-409.01, et seq., that included the following language:
  • “(5)(A) If an All Hazards/EMS Specialist is a participant in the defined contribution plan under section 2605(3) of the District of Columbia Government Comprehensive Merit Personnel Act of 1978… and elects to participate in the Program [the Defined Benefit Plan], all of the employee’s interest in contributions and earnings under the defined contribution plan shall be transferred from the defined contribution plan to the District of Columbia Police Officers and Fire Fighters’ Retirement Fund in accordance with section 12(c)(9)(B)(ii) or (iii) of the Policemen and Firemen’s Retirement and Disability Act. Upon such transfer of funds, the All Hazard(s)/EMS Specialist shall cease to be a participant in or have an account under the defined contribution plan.
  • Plaintiffs assert that the only people that this provision could apply to are EMS personnel who were members of Local 3721, and part of the defined contribution plan, as persons who were hired directly into the firefighter services, no matter how many hazards they could ostensibly handle, were never part of a defined contribution plan.
  • In 2009 and 2010, DCFEMS was slammed with yet another controversy because it had seriously overspent its budge on overtime.
  • At the same time, Chief Rubin and/or his agents were actively encouraging EMS employees, who were predominantly Black, to convert to being firefighters.
  • On or about December 1, 2010, Councilman Phil Mendelson held a hearing of the Judiciary Committee to find out what was happening with the merger of services, and repeated that the council had appropriated funds to ensure that EMS personnel could transfer into the firefighter defined benefit plan.
  • At that hearing, the DCFEMS representatives evaded the question, and Councilman Mendelson eventually moved on.
  • Throughout 2012 and 2013, DCFEMS was mired in staffing and scheduling controversies.
  • By 2012, the merger that was supposed to cross train all of Local 3721 to be firefighters had converted less than half of the paramedics.
  • Plaintiffs assert that had Defendant complied with the law, and given its EMS staff pay parity and access to the defined benefit plan, the EMS positions would have been far easier to fill.
  • In short, from 2012 to 2016, DCFEMS was under immense pressure to get the EMS paramedics and EMTs trained to be firefighters, while at the same time, Local 36 was actively undermining the process, and nothing was done to abate the racial tensions between the two groups.
  • In January of 2015, Mayor Muriel Bowser, took over, and appointed Gregory Dean from Seattle, WA to be the new Fire Chief. He was specifically tasked with turning around a department that Mayor Bowser viewed as failing.
  • Early in his tenure… Chief Dean… stopped hiring paramedics that were not firefighters.
  • While this eased tensions internally, it exacerbated and extended the perpetual and ongoing paramedic staffing shortage.
  • In 2015, Chief Dean wrote a Special Order (hereinafter “the 2015 SO”) for the express purpose of incentivizing EMS paramedics to become firefighter trained, and that document clearly outlined that in transitioning, EMS personnel would retain their seniority and would money in their defined contribution plan transferred to the defined benefit plan.
  • This means that when Plaintiffs transferred to firefighting, they would earn wages based on their tenure, but also that they would be inserted into the employee list at the appropriate place for their rank amongst other employees.
  • 2015 SO was a contractual offer, with sufficiently specific terms as to be contractually binding, and that they accepted those terms by way of transferring to the firefighter service.
  • Plaintiffs further assert that valuable consideration in support of the contract consists of the work and effort they put into passing the firefighting academy requirements, and in the risks they agreed to take on, and did take on as firefighters.
  • Between 2015 and 2017, all but one Plaintiffs transferred from the EMS side to the firefighter service because the merger of the services was simply not happening as intended and promised. After years of legislation and appropriations, EMS employees were still being paid less, and were no closer to being part of the defined benefit plan.
  • As discussed below, each Plaintiff decided to transfer to the firefighting service, and all but one had to go through the fire academy and learn how to fight fires, for the express purpose of obtaining defined benefit pension plan terms.
  • Each Plaintiff relied on verbal and written representations made to them by management in the 2015 SO, representations made to Local 3721 and disseminated to its members, and the statutory language of District of Columbia Code §5-409.01 5(A).
  • At no time, during the transfer of any Plaintiff, did any management employee, agent, leader or representative ever suggest or state that DCFEMS would not abide by§5-409.01 5(A), or that DCEMS would deny Plaintiffs any aspect of their rights according to seniority, which was a material omission.
  • In 2020, Chief Dean retired, and Chief Donnelly took over the helm of DCFEMS.
  • Because DC was in the middle of the pandemic, there was high demand for EMS, and there was little bandwidth to deal with some of the longstanding issues as DCFEMS.
  • In November of 2021, Chief Donnelly held a zoom town meeting with employees who had transferred from EMS to firefighting.
  • At that meeting, Chief Donnelly essentially told the employees that the city was not going to spend the money to fund their retirements, and that all of them would have to serve a full 25 years in firefighting, regardless of how much time they spent in EMS, to obtain a full pension.
  • Chief Donnelly had no explanation why the funds in the defined contribution plan were not transferred to the defined benefit fund when the employees transferred, in accordance with the law.
  • Chief Donnelly had no explanation for why money that was appropriated by the City Council for their retirement benefits was not spent for that purpose.
  • Chief Donnelly finished the meeting by stating that his decision was final, and that he had no interest in entertaining any questions or complaints about it.
  • Defendant has now formally taken the position that because of their transfer, Plaintiffs are no longer vested in the defined contribution plan, and because they do not have 25 years in the defined benefit plan they transitioned to, they are not vested and have no entitlement to retirement benefits.
  • As will be clarified below, the result of Defendant’s position, is that Plaintiffs will have to work for upwards of 40 years to earn the benefit that every other firefighter earns in 25 years.

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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