A Colorado fire lieutenant who was terminated for failing to comply with requirements associated with his return to duty following a DUI, has filed suit alleging disability discrimination and retaliation. Anthony Falbo filed suit in federal court naming the Poudre Fire Authority and the Poudre Valley Fire Protection District as defendants.
Falbo, a 16-year veteran, was charged with DUI while off duty in 2022. Poudre Fire Authority imposed discipline that included a suspension, demotion to firefighter, a requirement that he attend alcohol counseling, periodic drug and alcohol testing, and a mandate that he follow his prescribed alcohol treatment plan. He was terminated on April 3, 2023, ostensibly because he failed to comply with the requirements of his treatment program.
The complaint alleges that the fire department, by and through the various disciplinary memorandum issued to Falbo, “regarded” him as being disabled. Quoting from the compliant:
- On July 20, 2022 Division Chief of Operations, Brandon Garcia, completed his Investigation Summary and Notice of Recommended Discipline (“Garcia Recommendation”).
- The Garcia Recommendation includes recommendations for the imposition of various, discipline that purported to require Mr. Falbo to supply PFA with protected health information from his treatment facility.
- The Garcia Recommendation that Mr. Falbo comply with treatment and counseling recommendations from his alcohol abuse treatment program and that he provide a copy of those recommendations to PFA reveals that PFA regarded Mr. Falbo as disabled.
- The Garcia Recommendation that Mr. Falbo provide monthly reports from his counselor(s) regarding his continuation of treatment and compliance with counselor recommendations for at least a six (6) month period beginning September 1, which period may be extended by the Authority, in its sole discretion, reveals that PFA regarded Mr. Falbo as disabled.
- The Garcia Recommendation that Mr. Falbo sign and return to PFA an Authorization for Release of protected health information, which authorized his counselor(s) to provide the Authority with the monthly reports reveals that PFA regarded Mr. Falbo as disabled.
- PFA never asked Mr. Falbo to enter into a “last chance” agreement, and no “last chance” agreement was ever entered into between Plaintiff Falbo and Defendants.
- PFA nevertheless imposed the requirement of Mr. Falbo providing medical and therapeutic records as a form of discipline, which is prohibited under the Americans with Disabilities Act Amendments Act and Tenth Circuit case law construing it.
- On or about August 19, 2022, Mr. Falbo appealed the discipline imposed by PFA.
- On September 20, the appeal was decided in Mr. Falbo’s favor by Chief Vander Velde. Chief Vander Velde’s decision on appeal (“Discipline Decision”) modified the Original Discipline decision that was imposed under the name Chief Jerry Howell in several ways, including by the elimination the requirement to provide monthly reports from counselors regarding the continuation of treatment and compliance with counselor(s) recommendations for one year, which PFA could, in its sole discretion, extend.
- The Discipline Decision is the governing disciplinary document with regard to Mr. Falbo’s discipline in connection with the Americans with Disabilities Act.
- The Discipline Decision eliminated some onerous requirements and required his compliance with treatment and/or counseling recommendations, but it did not require Mr. Falbo to provide verification of the requirement.
- The Discipline Decision retained the requirement that Mr. Falbo comply with any treatment and/or counseling recommendations from his alcohol abuse treatment program.
- The requirement that Mr. Falbo comply with any treatment and/or counseling recommendations from his alcohol abuse treatment program demonstrates that PFA regarded Mr. Falbo as being disabled.
- The Discipline Decision retained the requirement that Mr. Falbo take such actions as are necessary for the program to release a copy of its recommendations to PFA. This demonstrates that PFA regarded Mr. Falbo as being disabled.
- Mr. Falbo’s employment was terminated as of April 3, 2023.
- Mr. Falbo complied fully with his treatment program.
- Mr. Falbo repeatedly provided PFA with access to his protected health information related to his treatment program.
- Mr. Falbo’s treatment program ended on July 7, 2022 upon his successful completion of it.
- At no time did PFA or anyone else accuse Mr. Falbo of not being able to perform the essential functions of his job.
- PFA mistakenly believed that an actual, nonlimiting impairment substantially limited one or more of Mr. Falbo’s major life activities. Namely, PFA mistakenly believed that Mr. Falbo’s ability to work was limited by an alcohol addiction.
- Mr. Falbo was discriminated against because he was regarded as disabled by PFA.
- PFA unlawfully demanded that Mr. Falbo provide protected health information (PHI) and then punished him based on its allegation that he failed to timely comply.
- Plaintiff was harmed by the discrimination he suffered at the hands of PFA.
- Mr. Falbo’s opposition to the adverse employment actions against him included opposition to the requirement that he take such actions as are necessary for the program to release a copy of the treatment and/or counseling recommendations to PFA.
- In short, PFA demanded the release of Mr. Falbo’s protected health information, and PFA concluded that Mr. Falbo had not complied.
- So, PFA retaliated against him by instituting disciplinary action.
- The law protects the medical and health information of employees who are regarded as disabled and does not permit employers to demand it or to condition continued employment on the provision of protected health information related to disability in the absence of a “last chance” agreement between the employer and the employee.
- The PFA requirement that Mr. Falbo release his protected health information opposition was discriminatory.
- Mr. Falbo availed himself of the administrative process to oppose the adverse action taken against him by PFA in the form of the Discipline Decision handed down by Chief Rick Vander Velde on September 20, 2022.
- Availing oneself of the administrative processes available to resolve employment disputes is a protected act under the law.
Here is a copy of the complaint: