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Saturday, January 31, 2015

Fire Law: Curt Varone of being Terminated for "Causing a Hostile Work Environment" ( from First Arriving)

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FDNY Firefighter Facing Termination for Creating Hostile Work Environment

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An FDNY firefighter is facing possible termination over a series of incidents that occurred in 2012 that began with the wearing of uniform look-alike t-shirts that offended minority firefighters.
Administrative Law Judge Alessandra Zorgniotti ruled earlier this month that FF Thomas Buttaro, a 17 year veteran assigned to Ladder 123, should be terminated. Buttaro was accused of wearing blue t-shirts that were similar in color and design to FDNY issued shirts but that were actually supportive of two organizations, “Minorities Against Dumbing Down the Fire Department” (MADD) and Merit Matters. Both organizations oppose racial preferences in FDNY’s hiring process.
In a 34 page ruling that is quite well written Judge Zorgniotti flatly rejects Buttaro’s arguments that he had a First Amendment right to wear the shirts, as well as his efforts to portray a minority firefighter, FF Thomas, as a “whiner” and “race-baiter”. FF Thomas, who was subsequently promoted to lieutenant, complained that the shirts were offensive to him. Incidentally, Buttaro is a battalion representative for Merit Matters while Thomas is a board member of the Vulcan Society.
Here are the details in Judge Zorgniotti’s words. Note that the term “respondent” refers to Buttaro, and “petitioner” refers to FDNY:
  • [B]etween January and December 2012, respondent failed to wear Department-issued clothing while on and off-duty in the firehouse but instead wore t-shirts that another firefighter told him were offensive. 
  • Petitioner further alleges that respondent refused to obey orders to wear only Department-issued t-shirts, asked a civilian visiting the firehouse to wear one of the offensive t-shirts in the presence of the offended firefighter, and was disruptive during a discrimination class taught by the offended firefighter.
  • Respondent admits to wearing the t-shirts, denies engaging in misconduct, and alleges that he has a First Amendment right to wear the t-shirts in the firehouse.
  • As discussed in more detail below, respondent’s wearing of the Merit Matters and MADD t-shirts caused actual workplace disruption. 
  • Respondent’s speech created a hostile work environment for at least one black firefighter and disrupted harmony among the firefighters who live and work together in the firehouse. 
  • Respondent’s refusal to cease wearing t-shirts that Thomas told him were offensive and that supervisors ordered him not to wear, respondent calling Thomas a “whiny f__king c__nt,” and respondent’s efforts to recruit a civilian and a supervisor to join in the harassment of Thomas, resulted in Thomas feeling unwelcome and harassed in the workplace. Moreover, respondent’s speech-related actions disrupted a Department-wide EEO training.
  • Respondent’s t-shirts also had the potential to disrupt FDNY’s core mission of responding to life-threatening emergencies
  • As discussed more fully below, respondent’s repeated refusal to obey legal orders to wear only Department-issued t-shirts in the firehouse was insubordination. 
  • Respondent’s flagrant insubordination, by itself, threatened the good order and discipline of a para-military organization where strict obedience is the expected norm.
  • Finally, the Merit Matters and MADD t-shirts could create a perception that the Department and its firefighters are racist. 
  • Respondent wore the t-shirts while interacting with the public, including going on emergency runs and when the community came to open houses. 
  • He acknowledged that the community the firehouse serves is predominantly a minority one and that members recognized him as a firefighter when they saw him. Respondent never gave any thought to how the minority community would view the t-shirts.
  • Notably, the t-shirts are the same blue as the regulation t-shirt, they bear the Maltese cross, the traditional symbol of firefighters, and in the case of the MADD t-shirt, it also bears the FDNY patch. The Department’s concern that the public, and in particular minorities who are seeking to join the FDNY, would think that FDNY endorsed the views on the t-shirts is legitimate.
  • There is no doubt that the Department has the authority and a duty under federal, state, and city discrimination laws and its own EEO policies to eliminate unwelcome and harassing conduct in the workplace. Since the actual and potential disruption to the workplace and FDNY’s concern of maintaining the trust of the public it serves outweigh respondent’s First Amendment rights, petitioner may discipline respondent for his speech.
  • Respondent has been a firefighter since 1998 and does not have any disciplinary history. Respondent received satisfactory performance evaluations in 2011 and 2013. Respondent also received citations for his work during 9/11, and during Hurricane Sandy, and for successfully resuscitating a patient in cardiac arrest. Respondent’s long tenure and personnel record are mitigating factors to be considered.
  • Absent significant mitigation, repeated acts of harassment usually result in termination of employment.
  • Neither a reprimand nor a ten-day suspension is a sufficient penalty for respondent’s intentional and unrelenting insubordination and harassment. Respondent’s repeated refusal to obey orders from the commanding officer of his firehouse as well as from the Commissioner and the Chief of the Department to wear only authorized clothing in the firehouse raises serious questions about respondent’s ability to follow legal directives that he does not agree with. 
  • Moreover, respondent’s harassment caused actual and potential workplace disruption. His malicious actions, that were intended to harass and humiliate a fellow firefighter due to the firefighter’s opposition to workplace discrimination, raise legitimate concerns about respondent’s ability to work with others who do not share his beliefs. An aggravating factor is that respondent sought to enlist others in his provocation of Thomas, including a civilian and Lieutenant Zulke who both declined to follow respondent’s lead. Indeed, once it was known that Thomas objected to the Merit Matters and MADD t-shirts, other firefighters ceased wearing them to avoid disrupting the harmony of the firehouse.
  • There is also no evidence that a significant pay fine will modify respondent’s behavior.
  • Throughout 2012 respondent was given multiple warnings and opportunities to cease his misconduct. 
  • He refused to do so because it violated his personal creed. 
  • Even after respondent knew he was the subject of an EEO complaint, he continued his course of behavior until Thomas’s last day in the firehouse. 
  • During the five-day hearing, respondent trivialized his supervisors’ orders and his fellow firefighter’s concerns by referring to them as “insincere,” “poorly worded,” “control[ing],” “ridiculous,” and “childish.” Respondent’s lack of remorse or appreciation for how detrimental his conduct was further suggest that he is unlikely and unwilling to change his behavior.
  • Accordingly, I recommend that respondent be terminated from his employment as a firefighter.
The ruling is a recommendation that now goes to the Fire Commissioner for final determination.
Here is a copy of the ruling: 14-2430
Many of the media outlets are quoting Buttaro’s attorney, Adam Weiss, as saying: “We’re going to fight this for as long as it takes to get vindicated” and “There are only two sides to the story, and it looks like [the judge] took the prosecution’s side of the story and ignored ours.”

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