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Judy Greenwald

Firefighters prevail in appeal over fitness-for-duty tests ordered by risk manager

July 3, 2014 - 3:25pm


A Florida county risk manager's order that two firefighters, who had filed grievances against their department and expressed fear for their safety, pass fitness-for-duty exams before being allowed to return to work, led to a $23,000 jury award for retaliation, which was rejected by a District Court, but reinstated by an appeals court, in a ruling issued Thursday.

However, the 11th U.S. Circuit Court of Appeals in Atlanta agreed with the U.S. District Court in Tampa in affirming the jury's $166,000 award against the firefighters' union, according to Thursday's ruling in Anthony Booth, Jerry Brown. v. Pasco County, Florida, International Association of Firefighters Local 4420.

In June, 2007, Mr. Booth filed a department grievance against the captain who supervised Station 14 where he worked, and named Mr. Brown as a witness, according to the ruling.

Mr. Booth, who had been warned by the captain's supervisor that he would be transferred if he filed a grievance, was in fact transferred against his wishes. In his grievance, Mr. Booth named Mr. Brown as witness and the captain allegedly threatened Mr. Brown as a result, leading him to file a grievance as well, according to the ruling.

In November 2007 the offending captain was disciplined and transferred out of Station 14. The plaintiffs filed charges against the county and the union with both the EEOC and the Florida Commission on Human Rights.

The firefighters' union president sent out a memo that was posted in the station stating that the firemen's grievance would generate legal bills of at least $10,000 and that the union may have to assess its members additional fees to offset the cost. Messrs. Booth and Brown said they were shunned by fellow firemen after the memo was posted.

After both firemen said in affidavits that they felt unsafe, county risk manager Jane Calano, who worked under Pasco County Human Resources Director Barbara DeSimone, required the plaintiffs to undergo fitness-for-duty examination “to determine the legitimacy and the depth of their fears,” according to the ruling. She did not speak with the firemen or their supervisors before recommending the exams.

Fit for duty

Messrs. Booth and Brown were permitted to return to work once Ms. Calando received word they did not pose a risk to themselves or others, according to the ruling.

The plaintiffs filed suit against the department and the union, charging retaliation. The jury awarded the men a total of $23,000 in back pay and for emotional pain and mental anguish against the county for subjecting them to the fitness-for-duty exam. It awarded them an additional $166,000 against the union.

The District Court overturned the ruling against the county, stating there was insufficient evidence to support the finding the county ordered the fitness-for-duty examinations for a retaliatory purpose. The district court affirmed, however, the jury award against the union.

“Although the factual question is extremely close, we concluded that the jury was permitted to find the county's action retaliatory,” said the unanimous ruling by a three-judge appeals panel.

“Plaintiffs' affidavits may have raised serious concerns regarding their fitness for duty, but there was evidence tending to establish that at least DeSimone and Calano believed plaintiffs' statements to have a possible basis in reality...

“Despite this possibility the county ordered the examination without ever speaking to plaintiffs or their supervisors. The county also failed entirely to investigate the potential factual basis for plaintiffs' statements even after plaintiffs had been declared fit for duty (and presumably not 'paranoid')," said the ruling.

In upholding the jury award against the union, the appeals panel said it rejects “the union's argument that the First Amendment immunizes it under the facts of this case.”

“On the basis of our independent review, we conclude that the memo contained both an implicit 'call for reprisal' and also a threat of further retaliation,” said the ruling, in affirming in part and reversing in part the lower court's ruling.

 



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