Preliminary data released by the United States Fire Administration (USFA) indicates that 441 fire fighters died while on duty in the United States in 2001. This total, which is more than four and one-half times the annual average deaths for the last decade, includes 343 personnel lost at the World Trade Center (WTC) on September 11. The loss represents the worst total since the USFA began tracking fire fighter fatalities in 1977.
"2001 was a tragic year for America's fire service," R. David Paulson, United States Fire Administrator, said. "In addition to the many local heroes who died serving their communities nationwide, the eyes of the world turned to New York City on September 11."
In 2001, fire fighter fatalities were reported in 86 different communities in 33 states.
There were eight incidents in 2001 where more than one fire fighter was
killed; two of these occurred in New York. In addition to the WTC losses,
three fire fighters were killed in the explosion of a hardware store
in New York City on Father's Day. Other incidents included a total of
14 fire fighters killed at various times involving wildfire incidents, including
four who lost their lives when trapped by a forest fire in Washington State.
Of the total deaths, 370 (83.9 percent) were career fire fighters. Just over 87 percent of the deaths occurred during fireground operations. Eleven deaths were attributed to motor vehicle accidents that occurred when apparatus of fire fighters' personal vehicles were struck en route to or returning from a fire. Somewhat unusually, six fire fighters died in aircraft crashes. Apart from the FDNY deaths, whose cause was classified as "struck by/contact with object," the leading cause of death was heart attack. Thirty-nine fire fighter deaths resulted from cardiac arrest.
Over the last five years, line of duty deaths, excluding the 346 at the WTC, have averaged 97 per year. For 2001, 98 fire service personnel died at locales other than the WTC.
Hundreds of New York City fire fighters may be forced into retirement because of injuries and ailments incurred at the World Trade Center (WTC) collapse. Of high concern are respiratory problems afflicting about 300 New York fire fighters. However, the FDNY personnel are not alone as fire fighters from across the country who subsequently assisted at the WTC scene are reporting respiratory problems.
Efforts have been underway for several months to medically and psychologically screen every New York City fire fighter and rescue worker, about 13,000, who worked at the scene of the September 11 disaster. Many who worked the scene have reported a chronic cough and asthmatic respiratory conditions. Although all fire fighters have had a "presumption of toxic exposure" notice placed in their personnel files, about 1,000 FDNY personnel have filed legal notices in an effort to protect their right to sue the city over inadequate protection from dangerous materials.
The medical assessment is finding that about 25 percent of all personnel have some form of respiratory disease. The fire fighters' union estimates that 400 to 500 fire fighters may be forced to retire for medical reasons, further compounding the shortage of personnel on the FDNY. Currently, about 500 personnel are out on medical leave, including 300 with respiratory difficulties.
Independent tests found the air in lower Manhattan contained potentially dangerous levels of asbestos and other toxins such as pulverized glass and concrete, mercury, benzene, and propylene. Rescue workers were equipped with respirators but it became impossible to wear the masks constantly, especially during 12 to 14-hour shifts.
The medical problems are not confined to the FDNY. Fire fighters from
as far as California are reporting similar difficulties. According to the
San Jose Mercury newspaper,
about 30, half of the San Jose-area
fire fighters who helped at WTC, are reporting flu-like symptoms from
bronchitis to pneumonia. About 450 California rescue workers assisted at
the WTC scene. Employer liability for fire fighter job-related injuries
when on loan to outside agencies has proven in the past to be a thorny issue.
The fact that the fire fighters were out of state may further obscure their
rights.
New York medical personnel are taking a cautious stance on the long-term health implications of the "WTC cough" as the condition has become known. However, one California health official suggested that the lingering conditions are largely a function of the fact that the air at the scene simply contained a larger density of contaminants than normally encountered.
Collective bargaining in the fire service normally revolves around pay, benefits, and terms and conditions of employment. Exactly what falls within the scope of this latter topic - terms and conditions of employment - has over the years often been hotly disputed in many jurisdictions. However, perhaps no "condition of employment" is more unusual than the one raised by the Madison, Wisconsin, fire fighters' union in December. Dump the fire chief!
In a move characterized as "breathtaking hostility," Local 312 of the International Association of Fire Fighters, AFL-CIO, reportedly agreed to accept the city's lowest pay offer if the city agreed to get rid of Chief Debra H. Amesqua. The city administration responded quickly that it would never entertain such an idea.
According to documents obtained by television station WKOW, the union would
forgo about $200,000
in pay hikes in exchange for a new chief. During bargaining sessions,
Local 312 representatives reportedly had asked for a 4.5 percent pay boost.
City negotiators responded with a 2.5 percent offer. Instead of countering
with a 3.5 percent compromise, union negotiators agreed to the 2.5 percent
offer providing the chief was gone by New Year's Day.
A union official characterized the leak of the minutes of the negotiating session as "distressing" and "counterproductive."
Amesqua came to Madison in 1996 after serving as an assistant chief in Tallahassee, Florida. Conflicts between Chief Amesqua and the fire fighters' union have arisen out of allegations of favoritism in promotions and discipline, as well as her handling of allegations of drug use in the department. She has devoted much of her professional life to facilitating the integration of women and minorities into the fire service profession.
Base wage pay parity for fire fighters and police officers, a Houston tradition for decades, apparently has been broken, at least for the moment - thanks to politics. Their endorsement of the losing mayoral candidate in the recent municipal election will apparently cost members of the Houston Professional Fire Fighters Association, Local 341 of the IAFF, a wage hike.
City officials announced in December that the pay raise the police union negotiated in 2001 would not be forthcoming to fire fighters because they are working without a labor contract. "You can't just give them (fire fighters) money and expect them to get back to the (negotiating) table," said Lonnie Vara, director of the city's Human Resources Department. Contract talks between the union and the city have been stalled for 18 months, primarily over the issues of minimum manning and overtime compensation.
Local 341 officials called the city's
action "retaliatory" because of its endorsement of city council member
Orlando Sanchez in his recent effort to oust the incumbent mayor, Lee P.
Brown. Brown won a final term in office by a narrow margin. The last
weeks of the campaign focused on fire staffing levels following the death
of a department captain in a high-rise blaze. A city administration memo
written last August stated that the Brown administration supported the traditional
base pay parity plan.
Houston has followed base wage pay parity for at least 50 years, adhering to the concept even after the two public safety unions were granted the right several years ago to enter into a "meet and confer" contract with the city.
Union officials stated that they would fight for the raise by lobbying
city council and taking legal action if necessary. Meanwhile, the parties
are reportedly finally back at the bargaining table.
In 1976, Watts, an African American, was hired as a member of the fire department. During that time there were several instances in which derogatory racial statements were made about Watts and about whether coworkers would work with him. Nonetheless, over the next twenty years Watts rose through the ranks of the department ultimately reaching the position of fire captain. In 1998, Watts, while serving as the firehouse captain, had a confrontation with a subordinate fire fighter. The confrontation, which involved Watts making personal use of the station laundry facilities, escalated into physical contact with the other fire fighter, Wilson. Watts subsequently alleged that Wilson began to mimic Watts' behavior and ultimately head-butted him during an argument. Wilson, on the other hand, claimed that the confrontation resulted when Watts became highly agitated and subsequently struck Wilson in the head. After the incident Wilson immediately notified the assistant chief. The assistant fire chief came to the firehouse and conducted a preliminary investigation. He decided that both Watts and Wilson were in no state to continue work and sent them home with an order to provide a written statement of their version of the incident. After conducting an internal investigation, the assistant chief decided that it was impossible to say which of the two men was the aggressor since there were no third party witnesses and the two individuals told contradictory stories. The assistant chief recommended that both individuals be terminated for violating the department rule stating that no fire fighter would strike another under any circumstances. Upon review, the fire chief concluded that Wilson could not be disciplined because the department could not prove anything about the alleged head-butt as Watts showed no injury to his head. The chief recommended that Wilson not be disciplined because the department could not prove the head-butt. A pre-disciplinary hearing was held on the matter. Watts and his attorney, as well as the union president, attended the hearing. Ultimately, the city manager reviewed the termination request and decided to demote Watts from captain to fire fighter. In his decision the city manager stated that the discipline of Watts was based on evidence that he struck a subordinate and that he failed in his duty as a supervisor by allowing the conflict to escalate to the point of violence. Watts resigned rather than accept the demotion. He then sued the city claiming that he had been terminated on account of his race. The city moved for a summary judgment. The trial court ruled that while Watts had made a prima facie case of racial discrimination, the city had carried its burden of producing a non-discriminatory reason for disciplining Watts. Summary judgment was granted to city and former fire captain appeals.
HELD: Watts contends that the city’s alleged non-discriminatory reason for disciplining him was a mere pretext. His claim is based on two items. First, Watts cited the early instances of racially offensive language and second, the city’s failure to discipline Wilson, a white male. The city does not dispute that Watts presented a prima facie case of racial discrimination and Watts does not dispute that the city articulated a legitimate, non-discriminatory reason for disciplining him. Watts, however, contends that this reason was a pretext. One of the established methods of proving pretext is to show that the employer treated the plaintiff differently from other similarly situated employees who violated work rules of comparable seriousness. Watts argues that he showed pretext by showing the city did not discipline Wilson for violating the rule against fighting. However, Wilson was not a similarly-situated individual to Watts. Watts was a supervisor and had greater responsibility not only to avoid fighting but to actively defuse an explosive situation before it escalated into violence. Prior case law holds that employees are not similarly situated for the purposes of the law when one is a supervisor and the other is not. An employer who entrusts greater authority to its supervisors than to ordinary employees surely can be expected to exact greater responsibility from them. Supervisors often have to manage difficult employees. The record in this case shows the city administration held heightened expectations of its supervisory employees and gave them the authority to neutralize deteriorating situations by such measures as sending a subordinate home. Watts failed to do so in this case and his managerial failure fundamentally distinguishes his situation from that of Wilson's. Additionally, while the city had evidence that Watts admitted striking Wilson and that Wilson's face was red, there was no objective evidence that Wilson had struck Watts. Without this corroborating evidence the city was in no position to discipline Wilson. Finally, Watts' allegation of racial hostility based on racially inappropriate language was too remote in time to be relevant to the case. The alleged racial comments occurred some ten years before the event that brought about Watts' departure from the department. Such remote evidence is of little value in cases such as this. Summary judgment for city dismissing racial discrimination claim affirmed. [Watts v. City of Norman, Oklahoma, 270 F.3d 1288 (10th Cir. 2001)]
Washington, an African-American, was a 25-year veteran and served as the assistant fire chief of the fire protection district. Ten days prior to an election for one of the three seats on the district's board, Washington appeared on a radio talk show in his capacity as an advisor to an organization of minority fire fighters. The purpose of Washington's appearance was to support a particular candidate for the board. Such political activity was not prohibited by the district's policies. During the program Washington expressed concern about deficiencies in the district's willingness to respond to the needs of the primarily African-American community it served. To highlight these concerns, he described an incident in which an unidentified white fire fighter refused to follow standard operating guidelines in fighting a fire in an African-American neighborhood. The fire fighter allegedly was unwilling to climb through debris and garbage to get to the backdoor of a residence. Washington then suggested that white individuals had a better chance of being hired by the fire district than blacks. Immediately after the radio broadcast the fire fighters' union filed a grievance alleging that the on-air comments created a hostile work environment for white employees. The district chief denied the grievance as being without merit, concluding that Washington's comments were a personal opinion. Several days later, the fire district board held a hearing on the matter and ultimately demoted Washington from the rank of assistant chief to private by a vote of two to one. Following his demotion, Washington took sick leave and never returned to work. The board ordered him to produce evidence of a medical condition justifying sick leave and that failure to produce such evidence would be viewed as a resignation. When Washington appeared before the board, he stated he was unable to obtain appropriate medical documentation within the time afforded him. After the meeting, the board terminated Washington’s employment with the district. He filed suit against the district and its directors alleging a violation of his constitutional right to free speech. The directors moved for summary judgment on the grounds of qualified immunity. The trial court denied the motion and the district directors’ appeal, claiming that Washington’s speech was so disruptive that a reasonable public official would not have concluded that the adverse action taken against him violated his First Amendment rights.
HELD: The district directors are entitled to qualified immunity from civil liability if a reasonable individual in their circumstance would not have understood that their behavior violated a clearly established constitutional right. Whether Washington’s First Amendment rights were violated depends on whether his comments constituted speech on a matter of public concern. For the purposes of the summary judgment motion the directors concede that Washington’s comments did touch upon matters of public concern. This leads to the second part of the Pickering balancing test wherein Washington’s interest as a citizen in commenting on matters of public concern are balanced against his employer’s interest in promoting the efficiency of the public service. The Pickering balancing test is applicable only if it is first established that the speech created a disruption in the workplace. When the initial grievance was filed, the fire chief found that it lacked merit in that Washington’s comments constituted an expression of his personal opinion during a political interview. No other evidence was presented to show any disruption to the operation of the department by what Washington said. Because the directors’ showing of actual or potential disruptions are insufficient to trigger the Pickering balancing test, their claim of qualified immunity fails. However, the trial court should have granted qualified immunity to the director that voted against the demotion as he had no part in depriving Washington of any constitutional right. Remanded for further proceedings. [Washington vs. Normandy Fire Protection District, 272 F.3d 522 (8th Cir. 2001)]
In order to call attention to their demands for a new collective bargaining agreement and a pay raise, the fire fighters’ union and the police officer’s union held a picket outside city hall on the evening of the mayoral inauguration. The union members demonstrated from about 7:00 PM until around 8:00 PM as guests and officials arrived. During that timeframe individuals driving large trucks and private vehicles sounded their horns in support of the union pickets. Several off duty police and fire fighters participated in the sounding of the horns from their private vehicles. Around the time of the inauguration, Meaney, a police officer, borrowed his brother-in-law’s fuel oil truck and drove to city hall as the inauguration was taking place. He repeatedly sounded the horn of the truck. The following day the mayor asked the chief of police for a full report concerning the noisemaking and the union picket. Ultimately, the police chief suspended Meaney for two days fordisturbing the peace and for insubordination in connection with his protest actions. Meaney appealed the suspension to the civil service commission, which overturned the disciplinary action. He then filed suit against the chief of police, the mayor, and the city claiming a violation of his right to free speech, defamation, and injury to his reputation. Parties move for summary judgment.
HELD: Meaney alleges that he was retaliated against for exercising his First Amendment right to free speech. The initial issue presented is whether Meaney's sounding of an air horn at the union protest was protected by the First Amendment expression relating to a matter of public concern. Meaney claims he sounded the air horn to show support for his fellow union brothers. Such sounding of horns is a common activity at a union protest. Because Meaney's conduct was in connection with the union's concerted activities, it was constitutionally protected under the First Amendment. Because the horn blowing registers protest of the mayor's policies toward the police union, the expression was related to a matter of public concern. Even so, the interest of the city and the interest of the off-duty police officer must be weighed to determine whether the horn blowing is constitutionally protected. The facts established that the protest, although noisy, was at a reasonable hour and outside of city hall, in a public place most likely to draw attention to the union's concerns. Similarly, the police chief's own investigation found that while the air horn could be heard inside city hall, the noise was not so loud as to significantly disrupt the mayor's swearing in ceremony. Thus, the officer's interest in sounding the air horn as part of a union protest outweighs the defendant's interest in a quiet inauguration and preserving the peace. A reasonable person in a position of either the police chief or the mayor would recognize that picketers had certain constitutional rights. Neither official took reasonable steps to ascertain whether suspending Meaney would violate his constitutional rights. Common sense suggests that a mayor should be aware that suspending a subordinate for engaging in a public protest against him over a matter of public concern raises profound First Amendment concerns. To rule otherwise would immunize the mayor and would give high level officials a free pass to discipline subordinates who exercise their constitutional right to critique officialdom and protest. [Meaney v. City of Woburn, Massachusetts, 170 F. Supp.2d 46 (D. Mass. 2001)]
When a new fire chief was hired by the Medford Fire Department in 1989, no female fire fighters were employed. The new fire chief established a goal of changing that situation. Following the announcement of his goal he met with members of his senior staff. Several expressed concern that hiring of a female would hurt morale. Consequently, the fire chief agreed to the request of two of the staff members, Petersen and Burns, not to interfere with the evaluation process of any female fire fighter that the department might hire. Ettner had worked as a seasonal fire fighter while attending college. She applied for a position with the Medford Fire Department. She satisfactorily completed her training year, passing a rigorous physical exam, three written tests, and 26 task tests. She was highly recommended by the battalion chief to move to non-probationary status. Her last obstacle to becoming a permanent fire fighter was to pass a final task test. Probationers were given a set of five tasks, chosen from 26 for which they had been trained and tested previously, and graded by three evaluators on each task for both safety and accuracy. The three evaluators for Ettner were Petersen, a department battalion chief, and an outside evaluator who was fire chief of a neighboring community. When the averages of the final task tests were calculated, Ettner had failed all five even though she had previously performed successfully on each task in training. The evidence later suggested that there was some irregularity in the scoring, such as one assessor lowering his grades. No male probationer had ever failed more than one test and those who did were immediately told of their error and retested. Petersen and the battalion chief, however, decided not to repeat the five tests that day because they perceived Ettner was psychologically and physically drained. Rather, they decided to extend her probationary period. For the next month and a half Ettner was given one to six hours of training per day on the tasks. She was subsequently tested a second time. This time, one of the evaluators was Burns, the other staff member who initially held reservations about hiring females. In this test, the evaluators failed her on three of the five tests. That same day the fire chief informed Ettner that she was being terminated because of her failure of the day's tests. She became the only person in department history who went through a probationary period passing all tests and receiving a commendation from the battalion chief yet did not move on to non-probationary status. Ettner subsequently was hired by another fire department and successfully passed her probationary period there. She then brought suit against the City of Medford for back wages. A jury found in her favor and the city appeals.
HELD: The city argues that Ettner failed not because she was treated less
favorably than male candidates because of her sex, but due to her failure
of the objective testing process. Ettner counters that the testing process
was not objective and that her failing score on the task tests and subsequent
success on the tests she took in her current department supported an inference
that she was terminated because of her sex. The trial court found, appropriately,
that the grading of Ettner was unfair because it was highly subjective and
there was no evidence of any objective criteria for determining success or
failure. Various expert witnesses testified on her behalf and criticized
the subjectivity of the department's evaluation procedures. One evaluator
appeared to have used plus and minus signs to indicate scoring but then later
denied that those signs were scores, but rather just doodles. Another evaluator
admitted that no guidelines were issued to the graders on how to quantify
particular sections on the test. Additionally, Ettner was treated differently
than male fire fighters in the area of retesting. Unlike other fire fighters
who were immediately told of their mistakes and allowed a quick retake,
she was required to prepare again on all 26 tasks, not knowing which of the
five would actually be on the final test. These testing problems, along
with the history of the department, revealed a general concern about female
fire fighters and could lead a jury to believe that Ettner's treatment was
based on her gender. The fire fighter has satisfied her burden of proof
of showing that gender was a substantial and impermissible factor in the
city's decision to discharge her. Monetary judgment for female fire fighter
affirmed. [Ettner vs. City of Medford, 35 P.3d 1140, (Or. Ct. App. 2001)]