Missouri Firefighter Claims Disability and Age Discrimination

A Missouri firefighter who was terminated after being on disability leave for two years, has filed suit claiming disability and age-discrimination. David Horning filed suit against the Central County Fire and Rescue District, its fire chief and the chairman of the district’s board of directors.

The suit was filed in Charles County Circuit Court based on violations of the Missouri Human Rights Act. Horning, who served 22 years with the district, suffered a work-related knee injury on September 11, 2020. As explained in the complaint:

  • Around the beginning of November 2020, Plaintiff was released to return to work following treatment for said work-related knee injury.
  • At around that same time, Plaintiff had been diagnosed with stage 3 colon cancer which required surgery and hospitalization, from which he was recovering at the time he was released to return to work from the work-related knee injury.
  • As a result of exacerbation and repetitive injuries to his knee during the course of his employment, Plaintiff ultimately required a total knee replacement before returning to work at full duty.
  • The knee replacement surgery was delayed, in part, due to the cancer diagnosis and recovery from colectomy surgery, and then due to the COVID pandemic.
  • Specifically, once recovered from the colectomy surgery itself in December of 2020, Plaintiff was cleared to schedule the knee replacement surgery, which was scheduled for four months later in April of 2021.
  • On April 13, 2021, Plaintiff underwent a left total knee arthroplasty. Following the knee surgery, Plaintiff continued to experience severe pain and began having burning in his thigh, heat and swelling in his knee, and numbness and loss of feeling and strength in his left leg.
  • The knee arthroplasty surgery resulted in significant nerve damage and femoral neuropathy.
  • Plaintiff remained receiving long-term disability benefits through the date of his termination on about November 2, 2022.
  • Pursuant to the Central County Fire and Rescue and International Association of Firefighters Local 2665 Collective Bargaining Agreement Effective January 1, 2022 through December 31, 2022, with respect to non-job related disability leave, “Any employee who has been on disability leave for twenty four (24) consecutive months will be required to provide the district with a definitive return to work date from the employee’s physician. If the District deems the date reasonable the employee will be allowed to perform Districts the (sic) return to work evaluation. … If the District deems the date unreasonable then the District and the employee will separate service.”
  • On about November 2, 2022, Plaintiff presented his physician’s letter to Defendants which indicated that Plaintiff was scheduled to receive a dorsal root ganglion stimulation implant which would allow him to return to work by the end of the first quarter for 2023.
  • Given the fact that the surgery was in the process of being scheduled, the doctor was unable to give an exact date and time for return to work.
  • However, the doctor did indicate that Mr. Horning would likely be able to return to work after he recovered from the surgery.
  • Plaintiff received a letter on about November 6, 2022 from Defendants notifying Plaintiff that the District elected to separate service effective November 2, 2023 for Plaintiff’s “failure to return to employment or present a letter consistent with the Collective Bargaining Agreement…”
  • Between November 2 and November 6, 2022, Plaintiff had not been notified about his discharge from employment, though Defendants discharged him effective November 2, 2022.
  • This reason for discharge was a false narrative, a pretext created by Defendants to justify unlawful discriminatory behavior.
  • Upon information and belief of Plaintiff, Plaintiff’s position of employment was both opened and filled on the same date Plaintiff’s employment was severed, November 2, 2023, further indicating bad faith and an improper administration of the Collective Bargaining Agreement.
  • This action demonstrated that Plaintiff’s rights were set aside in favor of a new, younger hire before Plaintiff was given an opportunity.
  • Defendants have a history of bending rules for family members (nepotism) and friends of members in authority.
  • Further, upon information and belief of Plaintiff, Plaintiff’s position was filled by a much younger individual.
  • Defendants failed to engage in any sort of true interactive accommodation process with Plaintiff or otherwise formally engage with him in any constructive way regarding his disability.
  • Defendants’ termination of Plaintiff was intentional, willful, malicious, and calculated toward Plaintiff in that Defendants fired Plaintiff without making any good faith efforts to engage in any interactive accommodation process and, thus, such conduct constituted willful violations of Missouri law.

The suit alleges age and disability discrimination, but does not clarify if the basis for the disability claim is the knee injury, the cancer, or both. It emphasizes that the disability claim is premised in part on the failure to provide Horning with a reasonable accommodation, namely additional time to allow him to have the knee surgery and recuperate.

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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