July 2001 
Volume 15, Number 7 

Grooming standards and culture conflict in D.C. 
The movement of America toward a multi-cultural society is requiring adaptation by the fire service. Nowhere is this more evident than in recent events around the nation's capital. 

The District of Columbia Fire Department was ordered last month to reinstate several fire fighters who had been put on administrative leave because they refused to shave their beards or cut their hair. The fire fighters claimed that new department grooming policies violated their religion. U.S. District Judge James Robinson agreed and enjoined the department from enforcing its rules against the fire fighters. Citing the 1993 Religious Freedom Restoration Act (RFRA), Judge Robinson said that the policy "very clearly" violated the fire fighters' rights and ordered them back to work immediately. 

In April, D.C. Fire Chief Ronnie Few began enforcing a four-year-old department policy generally prohibiting beards and long hair. In his order, Chief Few said the regulations were an appropriate means to increase discipline, uniformity, safety, and morale. 

Judge Robinson commended the policy, but with a caveat. "That's admirable, it's correct, and it should be a policy that's implemented uniformly — except if it infringes upon the exercise of religion under the Religious Freedom Restoration Act," the judge wrote in his opinion. 

Aided by the American Civil Liberties Union, six fire fighters had challenged the policy. Four had been placed on leave pending disciplinary action for refusing to cut dreadlocks or shave their beards. Another trimmed his beard but was placed on leave for wearing a skullcap in observance of his religion. A sixth fire fighter cut his hair to conform to policy. The judge's order allows each to return to wearing their long hair or beards. 

 Four of the fire fighters are members of the Islamic faith and wore beards in recognition of their religion. One has taken the vow of a Narzarite, preventing him from growing his hair, while the sixth is a Rastafarian, which calls for men to let their hair grow. 

Attorneys for the district government argued that safety concerns - the fit of facemasks - overrode any question of religious freedom. Additionally, lawyers claimed that D.C. was the only one of the nation's 25 largest cities to permit bearded fire fighters under any circumstances. 

Judge Robinson's ruling came on a narrow point of law. While states and their political subdivisions are exempt from coverage of the RFRA, the District of Columbia is not a state and enjoys no such exemption. Rather, the district government cannot infringe on religious freedom unless it shows a compelling need for its intrusive policy. Sufficient evidence was not presented to establish that beards and long hair pose a safety risk in the fire service, the judge ruled. 

In a statement issued after the ruling, Chief Few said, "My main fear is one day having to apologize for injuries to fire fighters to their concerned relatives. It is especially hard when I know there was something I could have done through department policies. 

Meanwhile, near the capital, a Montgomery County, Maryland, fire fighter who converted to Islam reached a compromise this month with the department on the issue of wearing a scarf as required by her religion. Following a trip to the holy city of Mecca this spring, fire fighter Stacy Tobing began wearing the head scarf - called a hijab - as required by the Koran to preserve modesty for Muslim women. When Tobing planned to return to her job as a fire department paramedic last month, 
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her superiors raised concerns that the scarf might compromise her safety. She was initially ordered not to wear the scarf on duty. 

A compromise was eventually reached, however. Tobing can wear the hijab while performing emergency medical duties but has agreed to switch to a flame-retardant hood when pressed into fire suppression duties. Tobing is believed to be the first Muslim female fire fighter to wear the hijab on duty. 

Tobing, a seven-year veteran fire fighter, was reared a Lutheran but converted to Islam after marrying another paramedic who was born a Muslim. They were married in Syria last May. Tobing said her trip to the Middle East deepened her faith. "I asked in my prayers to give me strength 

 to follow through my faith with action in wearing the hijab," she said. 

Joshua Salaam, civil rights coordinator of the Council on American-Islamic Relations, which helped negotiate the settlement, said the group receives about 700 discrimination complaints a year, about 30 percent involving wearing of the hijab. "We deal with a lot of these kind of cases and this is the first one of its type that we've heard of," Salaam said. 

Prior case law, including decisions of the U.S. Supreme Court, generally have upheld grooming regulations in the fire and police services. Whether these two incidents mark the beginning of a different judicial perspective on the topic remains unclear. 

Louisiana fire fighters lose jobs after sickout 
An administrative investigation into a sickout in the Lafayette, Louisiana, Fire Department has resulted in the firing of two fire fighters and the disciplining of six others. The investigation came following an incident in which more than two-thirds of the city's fire fighters called in sick for three days starting March 31, 2000. The fire fighters were protesting impending budget cuts and being paid less than the city's police officers. 

Most of the discipline meted out was based on failing to cooperate with police investigators or not telling the truth. Fire fighters Ronald Lantier and Damon LaCombe were terminated. The investigation exonerated two fire fighters. 

The fire fighters' union denied any involvement in the sickout but Donald Chauvin, the 

 union president, received a 60-day unpaid suspension and was demoted from captain. Chauvin, who did not call in sick during the job action, was accused of not cooperating with investigators and choosing not to tell the truth. Chauvin allegedly met with the fire chief and others during the April Fool's Day job action and volunteered his opinion that the fire fighters were frustrated about pay, working conditions, and administrative communication. Later, he told police investigators that he could shed no light on why so many fire fighters had called in sick. 

During the three day incident the level of fire suppression personnel who called in sick was nearly 73 percent, compared to a daily average of two to three percent. 

No more Texas hoop dreams 
Football is often cited as the state sport of Texas but in the state's capital city the fire department has decided that football, and all other sporting activities, are too dangerous for fire fighters. The Austin Fire Department recently banned fire fighters from playing sports on duty. The reason? Money.  Over a recent four-year period, 100 Austin fire fighters sustained injuries playing basketball and volleyball at the fire station. Treating the injuries cost taxpayers over $366,000. During the same time frame, 272 fire fighters were injured at fire-related emergencies, costing the city $1.86 million. While the sports-related injuries were relatively minor, a 
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few fire fighters have reportedly been off the job for a year. 

Basketball goals, volleyball nets, and weightlifting equipment have been as common as hose nozzles in many of America's firehouses. Concerns of worker's compensation claims may 

 bring about their demise. The official discouragement of physical fitness activities is ironic since the last few years have seen increased focus on fire fighter fitness. This past year a new fitness initiative was jointly announced by the IAFF and the IAFC. 

Wisconsin disciplinary changes possible 
A version of the Wisconsin state budget under consideration includes a provision that would substantially alter the manner in which public safety personnel disciplinary matters are handled. The Democratic version of the budget, already adopted by the Senate, would allow state-appointed arbitrators to hold closed-door disciplinary hearings. Currently, discipline hearings are conducted by locally appointed police and fire commissions in open meetings. Under the proposal, individuals could still opt for the commission hearing. 

Steve Urso, a spokesperson for the Wisconsin Professional Police Association, said the new plan would expedite cases and save money for both the unions and cities. A representative of the state municipal alliance claimed the proposal would 

 gut current law on disciplining public safety personnel and shield the process from public scrutiny. 

The cost of public safety discipline cases has received increased media attention recently because of a scandal in Madison involving alleged use of cocaine by fire fighters. 

Prior to 1993, many public safety unions had contract provisions permitting discipline matters to be reviewed by an arbitrator. In that year a state appeals court ruled that fire and police discipline cases in villages and cities must be decided by the local police and fire commissions. 

The other house of the legislature must still approve the budget and the arbitration proposal. The legislature is currently in recess. 
Litigation 
a factor. Thereafter, the city adopted a revised promotion policy as well as an affirmative action plan. The affirmative action plan stated that promotions were to be conducted without regard to race but did set percentage goals for representation of blacks in certain job classifications. Under the revised policy, fire fighters applying for promotion to lieutenant sat for a written examination, completed an assessment center, and had an oral interview with the fire chief. The written exam counted for 30 percent of the overall score, the assessment counted for 50 percent, and the interview counted for 20 percent. Applicants scoring at least 70 out of a possible 100 on the qualification exercise were considered qualified for promotion. Once the pool of qualified applicants was created, the fire 

Supreme Court update 
The Supreme Court ended its 2000-2001 term last month leaving no fire service-related cases pending. Case filings will continue over the course of the summer but the justices will take no action until the start of their new session on October 1. 

Cases of interest 

Promotion procedures 
As a result of litigation brought by black fire fighters in the early 1970s, the fire department began to use race as a factor in its promotion decisions. In 1995, the federal court supervising the promotion process ended the requirement that race be used as 
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chief had the authority to make the final promotion decision. In making the promotion decision, the fire chief did not consider the relative qualification exercise scores of the applicants in the pool. In 1995, the department conducted an exercise to identify qualified applicants. Twenty-one of the twenty-three fire fighters scored 70 or better and were considered qualified. Over a period of several years the fire chief selected four white fire fighters and four black fire fighters for promotion to lieutenant. Five white fire fighters who were not selected filed suit against the black fire chief and black city manager as well as the city claiming that the promotion process was racially discriminatory. Trial court granted summary judgment for the city on the grounds that the complaining fire fighters did not provide a sufficient basis for a jury to conclude that the non-discriminatory reasons for the promotions were a pretext for discrimination. White fire fighters appeal. 

HELD: The white fire fighters contend that the fire chief used subjective criteria to select individuals for promotion to lieutenant. They assert that these subjective factors constitute proof of intent to discriminate. This argument is unconvincing, however. Prior case law holds that absent evidence that subjective hiring criteria are a mask for discrimination, the fact that the employer based a promotion decision purely on subjective criteria rarely, if ever, proves a pretext for discrimination under federal fair employment law. Traits such as common sense, good judgment, originality, ambition, loyalty, and tact often must be assessed primarily in a subjective fashion. Yet, these traits are essential to an individual's success in a supervisory position. Congress did not intend to deprive an employer of the ability to rely on such important criteria merely because those criteria are only capable of subjective evaluation. Similarly, the complaining fire fighters cannot show pretext by establishing that they were better qualified than the individual who received the promotion. Federal courts do not sit as a super personnel department that reexamines an entity's business decisions. The 

 courts do not ask whether the employer selected the most qualified candidate but only whether it selected the candidate based on an unlawful motive. Likewise, the fact that the city had adopted an affirmative plan with promotion goals does not in itself establish a pretext for discrimination. There is no evidence that the fire chief even considered the affirmative action plan in making his selections. The white fire fighters have put forth insufficient evidence from which a reasonable jury could conclude that promotion of black fire fighters was a pretext for intentional discrimination against whites. Summary judgment for city affirmed. [Denney v. City of Albany, Georgia, 247 F.3d 1172 (11th Cir. 2001)] 

Dismissal grounds 
Hufford served as the shift captain for the fire district. The department had a policy that prohibited displaying visuals of a sexual content. In 1996, the department began contemplating the purchase of an Internet connection. At that time Hufford suggested the department adopt an explicit policy prohibiting the use of the connection to view pornographic websites. No such policy was adopted at that time however. Despite the lack of formal policy Hufford instructed subordinate fire fighters not to use the computer to view pornography. Sometime later while the fire chief was visiting the fire station, Hufford called him to the computer. Hufford was going through the cache files on the computer and found evidence that hundreds of hours of hardcore pornographic material had been downloaded. Hufford and the chief examined a random sampling of the files and determined that some contained what appeared to be child pornography. A list of dates and times of each of the files was compiled. The fire chief opted not to conduct any type of internal investigation, feeling that he was not sufficiently knowledgeable of computers. Rather, he referred the matter to a friend, a local police chief. Likewise, the fire chief took no active steps to address the pornography problem on a department-wide level, but he did respond to 
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individual inquiries from fire fighters. As the criminal investigation progressed, pressure mounted within the department. Additionally, concerns began to be raised about possible retaliation against Hufford for bringing the matter to the chief's attention. The police investigation closed without any charges being filed. However, Hufford's standing within the department began to fall. Within three months of the closed investigation Hufford received his first written reprimand. Over the course of the next few months he received several other reprimands for various violations of department rules. Finally, the fire chief decided to terminate Hufford because following his second written reprimand he had met with his crew regarding his leadership. This act was interpreted as creating a hostile work environment. During the termination process Hufford claimed that his removal was largely in retaliation for his exposure of the Internet pornography files. Hufford declined to take a demotion that was offered and was then terminated from the department. He filed suit against the department, the fire chief, and the local union. He alleged violations of his First Amendment rights, federal fair employment laws, and the State of Idaho whistleblower law. Trial court denied the defendants' motion for summary judgment on the constitutional claims and defendants appeal. 

HELD: Public officials acting in an official capacity are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Hufford, as the party seeking to deprive the defendants of qualified immunity, bears the burden of proving that the rights he claim were "clearly established" at the time they were allegedly violated. In order to show that qualified immunity should not apply, Hufford must show that his speech involved a matter of public concern and that the interest served by allowing him to express himself outweighed the state's interest in promoting workplace efficiency and avoiding workplace disruption. Certainly, Hufford's speech reporting the use of government 

 computers to download pornography was a matter of public concern protected by the First Amendment. Likewise, Hufford's interest in speaking out about the downloading of the pornographic material outweighs the department's interest in promoting efficiency. In particular, the department cannot rely upon disruption that it created. Hufford only reported the pornography cache to the fire chief. Any disruption that occurred after that was fueled by the fire chief and the subsequent police investigation, not by Hufford. An employee who actively exposes rampant corruption in public office no doubt may disrupt and demoralize much of the office. But it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office. An employer who discharges an employee in retaliation for legitimate whistleblowing does so in violation of the employee's clearly established First Amendment rights. Denial of summary judgment on this issue was correct. Denial of summary judgement affirmed. Matter to proceed to trial. [Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001)] 

Selection procedures 
The NAACP filed suit against the city complaining that the written test used to assist in hiring fire fighters had a disparate impact on blacks. Additionally, the NAACP contended that the physical abilities test disproportionately screened out female applicants. It sought an injunction to prohibit the city from filling fire department vacancies until the matter was legally resolved. 

HELD: Ordinarily, one does not have legal standing to protect the constitutional rights of a third party. However, an association has standing to bring suit on behalf of its members under certain circumstances. Here, however, the NAACP lacks standing to bring suit on the behalf of the female plaintiffs because they were not NAACP members at the time the suit was filed. On the other hand, the NAACP clearly has standing to represent the black plaintiffs since they could have sued in their own 
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right, the interest the organization seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires participation of the individual members in the lawsuit. Thus, NAACP has standing with respect to the black plaintiffs. The preliminary evidence indicates that only about five percent of black applicants passed the written selection test while 24 percent of white applicants passed the test. Since the past rate of black test takers is less than 80 percent of that of whites, the numbers establish a prima facie case of adverse impact under federal fair employment regulations. An employer can defend this deferential by showing that the selection process is job-related. Job- relatedness is established through a validation study. Here, the city used an employment test constructed by a consulting firm. The consultant developed the test after conducting an in-depth study of important work behaviors for successful job performance by fire fighters. This study found that reading comprehension, math, and listening comprehension were important skills for successful performance of being a fire fighter. A prospective fire fighter must understand training materials and important warnings, make basic calculations about water pressure and hose length relative to fire distance, and digest reported information, such as directions about what to do after arriving at the scene of a fire. The methodology used by the consultant to create the test was appropriate and establishes the test's job-relatedness. The burden now shifted to the NAACP to demonstrate that an equally valid selection device with less adverse impact exists and that the city refused to use it. The NAACP seeks to satisfy this burden by urging the city to use the same selection test employed by the police department. This might be feasible if the two departments required the same essential skills. However, there is no indication that the skills appropriate for a fire fighter are the same skills appropriate for a police officer. Thus, the NAACP has failed to propose a reasonable alternative. Finally, the group argues that awaiting a final determination of the case on the merits will  produce irreparable harm to the plaintiffs should they prevail. If the NAACP is successful in challenging the fire department test, the black plaintiffs will have lost time on the job. The city argues, however, that fire-fighting experience does not have a linear correlation with hours worked and that experience is gained fastest by being assigned to the most frequently called upon station houses. Thus, it appears that black plaintiffs could catch up total experience compared to the more senior counterparts by being assigned to busy station houses. Additionally, the city argues that delaying the hiring of additional fire fighters will put strain on its overtime budget as well as requiring fire fighters to work additional hours. These additional hours could result in fatigue and injury. On a question such as this the court must defer to the fire chief as authoritative on the issue. The court cannot put too little emphasis on the threat to life and property posed through the use of weary fire fighters. The balance tips to the city on this question. As important as it is to make sure that employers do not use discriminatory testing procedures, it is paramount that the public can depend on lifesaving devices like fire fighting. Inadequate fire protection poses an enormous risk of life and property for all, regardless of color or gender. In the face of such risk the hiring of needed fire fighters cannot be delayed. The public interest clearly supports denial of the requested injunction. [National Association for the Advancement of Colored People v. City of Springfield, Illinois, 139 F. Supp.2d 990 (C.D. Ill. 2001)] 

Grievance procedures 
Jackson was a fire fighter on the Houston Fire Department. He made several attempts to transfer to Station 70. Each of these requests was denied. Ultimately, Jackson filed a grievance under Texas civil service law in an effort to accomplish the transfer. The grievance process as laid out by Texas statute set forth four steps. Upon being denied the transfer under steps one and two Jackson had a choice between appealing to an independent 
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arbitrator or to a grievance examiner chosen by the civil service commission. Jackson chose the latter route. The grievance examiner held a hearing on the matter. She denied the specific request to transfer to Station 70 but ordered the department to grant Jackson's request for a transfer to any other station that had an opening available. She then informed the parties they had fifteen days to file a written appeal requesting review by the civil service commission. Neither party filed a step four grievance, the appeal to the civil service commission. Therefore, the grievance examiner's decision was considered accepted by the parties. Jackson subsequently requested transfers to one of two named stations. The city, however, refused to follow the examiner's decision. Ultimately, Jackson sued to force the city to follow the examiner's decision. Texas law states that when the decision of a hearing examiner becomes final the department will grant the relief within ten days from the date of the decision. The department head is subject to $1,000 per day fine for failure to implement the decision. The city responded to the suit alleging that the court did not have jurisdiction to hear the case. Trial court rejected the city's position and city appeals. 

HELD: A plea to the jurisdiction contests the court's authority to determine the subject matter of the cause of action. In this case the city argues that a court can only review final decisions under civil service law. The city asserts that only two final decisions are available under the Texas statute: a decision of the civil service commission or a decision of an independent hearing examiner. The city maintains that a decision by a grievance examiner is not contemplated under the language of the statute. A review of the state statute reveals that while it is clear how a grievant is to proceed to enforce the ruling of a civil service commission or a hearing examiner, it is unclear how an order issued by a grievance examiner is to be handled. The court, therefore, must discern the intent of the legislature as it applies to this situation. The court must read the statute as a whole and reject and resolve 

 ambiguities that defeat the purpose of the legislation. Scrutiny of the statute reveals that a grievance examiner is closely associated with the civil service commission. The examiner is given broad powers similar to the civil service commission, such as subpoenaing witnesses and examining them under oath. Thus it would appear that for the purposes of enforcing a grievance examiner's orders, the legislature intended that a final unappealed order of the grievance examiner be viewed as a final decision of the civil service commission. It would have made no sense for the legislature to intend orders of arbitrators and the civil service commission itself to be final but not the orders of the commission-appointed grievance examiner. Thus, the legislature intended, though did not clearly articulate, that a final unappealed decision by a grievance examiner be considered a final decision of the civil service commission. When the city failed to timely appeal the recommended solution ordering relief for Jackson, the decision became final. Jackson has exhausted his administrative remedies and the court properly had jurisdiction to enforce his claim. Affirmed for fire fighter. [City of Houston v. Jackson, 42 S.W.3d 316 (Tex. App. _ Houston [14th Dist.] 2001)] 
Settlements 

Hemet, California 

fire fighters 
Because area comparables saw salary increases in recent years, Hemet fire fighters will enjoy substantial pay gains. City and union officials have agreed on a new contract that will grant fire fighters a nine percent raise the first year. Fire engineers will gain a 9.25 percent raise while fire captains will garner a 12 percent wage boost. All fire service employees will be awarded four percent increases in each of the final two years of the pact. The pay gains are tied to the rates of twelve comparable Southern California cities. The goal of the parties is to maintain Hemet fire fighters' pay 
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above nine of the twelve. With the new pact, basic wages have increased 20 percent since 1998 and will jump another 30 percent by the end of the contract.  the rank of lieutenant. These new lieutenants will be used to fill daily vacancies thereby reducing overtime costs. 

Santa Paula, California 

fire fighters 

Houston, Texas 

fire fighters 
A contract settlement last month between the City of Santa Paula and its six full-time fire service line personnel has produced a 20 percent pay gain retroactive to March. A city study found salaries lagged behind those in other Ventura County fire departments. The city's three fire engineers will see their salaries jump from $33,170 to $40,493 while the three fire captains move to $42,142 from $34,520. The two dozen part-time fire fighters also received a new contract. A two-year deal grants pay boosts of three percent each year. Paid on a per-call basis, the part-timers will now earn $9.43 per hour. 
Although still locked in a bitter contract dispute with the city, Houston fire fighters will nonetheless see increases in their paychecks. Because of a base wage parity ordinance, settlement of a new contract with the Houston Police Officers' Union will automatically increase fire fighter pay. Over the next three years fire fighter compensation will jump at least 22 percent. A ten-year veteran fire fighter who previously earned $36,917 will draw a base of $47,766 by January 2004. Beginning base wage for non-probationary fire fighters will jump to $33,955 by the final year of the agreement while a veteran district chief will earn a base wage of $81,841. The Houston Professional Fire Fighters Association and the city have been involved in heated negotiations in recent months. City funding of minimum manning of apparatus appears to be one of the primary stumbling blocks to a settlement. 

Streamwood, Illinois 

fire fighters 
After six months of working under an expired contract, Streamwood fire fighters have a three-year deal with the village. The 36 members of Local 3022 of the International Association of Fire Fighters, AFL-CIO, will see base wages increased by four percent in each of the contract's years. Non-supervisory personnel will receive an additional 1.25 percent in 2002 and one percent in 2003 to offset the elimination of the paramedic stipend. Firefighter/paramedic base wage now ranges between $39,619 and $52,928. Fire lieutenant pay is between $52,428 and $64, 543. 

North Providence, Rhode Island 

fire fighters 
Members of Local 2334 of the International Association of Fire Fighters, AFL-CIO, this month ratified a new labor pact with the City of North Providence. The three-year agreement calls for pay hikes of exceeding three percent each year. The first year, effective July 1, 2001, sees a raise of 3.25 percent, followed by 3.5 percent in the second year, with a 3.75 percent boost in the final year. The contract eliminates a two-tier life insurance plan that pay different amounts depending upon whether the death was duty related. Defining "duty related" proved contentious. Now all fire fighters are provided $40,000 to $75,000 life insurance policies. The contract also resolves several grievances that will result in the promotion of three individuals to 
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