Fire Watch
Cynthia O’Neill Partner Emeritus | San Francisco
Ronni Cuccia Associate | Los Angeles
firm victories
Partner Mark Meyerhoff And Associates Olga Bryan And John LaCrosse Beat Fire Captain’s Disability Discrimination Claims.
A Fire Department discovered that one of its Fire Suppression Captains had a seizure disorder after he had a serious, off-duty vehicle collision. The Department ordered a fitness-for-duty evaluation. The evaluation restricted the Captain from working the continuous 24- to 48-hour shifts typical for his position, because the Captain needed 7 to 8 hours of sleep in every 24-hour period to reduce the risk of a seizure.
The Department promptly used an interactive process to assess whether the Captain could perform his essential duties with or without reasonable accommodation. After determining the Captain could not, the Department funded a vacant Administrative Captain position that accommodated the Captain’s work restrictions. This position carried the same rank, base salary, benefits, and promotional opportunities.
During the following months, the Captain repeatedly requested to return to his prior position. Yet, the Captain also provided deficient physicians’ notes, failed to sufficiently challenge the original fitness-for-duty determination, and outright refused to participate in the interactive process from time to time.
The Captain then sued the department, alleging disability discrimination and failure to engage in the interactive process. LCW demonstrated that the Department had acted lawfully at every stage: it immediately addressed the safety risk; relied on a valid medical evaluation; created reasonable accommodations that preserved the Captain’s pay and promotional opportunities; and consistently attempted to restart the interactive process even when the Captain refused. The
Court agreed that the Captain’s change in position from a Suppression Captain to an Administrative Captain did not result in any adverse employment action and that the Department had completed the interactive process in good faith. By documenting the department’s proactive efforts and exposing the Captain’s failure to cooperate, LCW persuaded the court to grant the Department’s motion for summary judgment.
Partner Morin Jacob, Along With Associate Attorneys Will Abramovitz
And Cindy Allen, Secure Firefighter’s Termination.
A Fire District hired an outside investigator to review allegations about its Firefighter’s off-duty conduct. The investigator found that the Firefighter had ingested cocaine for many days, which caused him to hallucinate. During his impaired state, the Firefighter: believed that he was being followed by members of a SWAT team; ran across an interstate; tried to break into vehicles; grabbed a 10-year-old boy; and dragged the boy into a truck that did not belong to him. The Firefighter was eventually arrested for kidnapping and being under the influence of a controlled substance. The Firefighter was jailed and did not come to work, nor call to report his absence as required by District policy.
During the investigation, the Firefighter admitted to using cocaine for a period of time before the hallucinations. The investigation also revealed that the Firefighter claimed a permanent residence in a location over 250 miles away from the District in violation of District policy. Several months after these incidents occurred, the District terminated the Firefighter’s employment.
Partner Morin Jacob persuasively represented the District at a binding arbitration. The District argued
that it had just cause to terminate the Firefighter for his egregious off-duty misconduct and violation of certain District policies. The District also argued that the penalty of termination was reasonable and was based on the Firefighter’s admissions. Associate Attorney Allen thoroughly prepared the case for arbitration. Associate Attorney Abramovitz drafted a compelling closing brief.
The Firefighter argued that the District failed to demonstrate how his conduct impacted his work performance or disrupted the workplace. The Firefighter also argued that the District relied on his arrest record to support the termination, in violation of Labor Code section 432.7.
The arbitrator disagreed that the District had improperly used an arrest record. She found that the District did not terminate the Firefighter because he was arrested, but rather because of his behavior and his inappropriate interactions with the child. The arbitrator found that the Firefighter admitted most of his misconduct to the investigator.
The arbitrator also found that the District had just cause for terminating the Firefighter for District policy violations. First, District employees are required to contact their supervisor if they will be late for their shift, and if they are unable to perform their regular duties. The arbitrator found that the Firefighter’s failure to notify a supervisor when he was unable to report for work after his release from jail violated these policies. Second, the Firefighter violated the District’s residency policy by residing in a home 250 miles away from District HQ and not reporting it to the District. The arbitrator called the Firefighter’s credibility into question for misrepresenting that he lived within 250 miles of the District.
The arbitrator upheld the decision to terminate, finding that the Fire Chief did not abuse his discretion. The arbitrator found that the Firefighter’s conduct was so egregious, it violated not only the public’s trust, but the trust of all District employees.
Partner Alysha Stein-Manes And Associate Attorney Gabi Kamran Win Workplace Violence Restraining
Order.
A part-time IT employee brought a gun to work. He never brought the gun inside City Hall, but he told a coworker that he had the gun in his car because he was distraught over a female employee who did not want to talk to him. The co-worker immediately notified Human Resources. At about the same time, the IT employee’s father realized the gun was in his son’s car and came to City Hall to take the gun back.
The City called in the Sheriff’s Department, which later went to the IT employee’s house and secured additional firearms. The City’s investigation showed that the IT employee had been stalking the female employee for months. The IT employee resigned from the City a few days later.
Because some of the stalking had occurred in an unsecured parking lot where the female employee parked to go to work, the City sought a workplace violence restraining order to prevent the former employee from entering City Hall and the parking lot.
Attorney Kamran prepared two employees to testify, but the judge was ready to rule after hearing only the first witness. The judge ordered a three-year workplace violence restraining order against the employee from entering City Hall or contacting the female employee.
Associate Attorney Anni Safarloo Convinces Court To Uphold Termination Of City Employee For Workplace Violence.
In November 2022, a City employee became angry and grabbed his coworker. The City terminated the employee, and the employee appealed. The advisory arbitrator concluded that the employee’s conduct was not “workplace
violence” under the City’s policy and recommended a one-month suspension. The City Council disagreed and upheld the termination, citing the need to maintain a safe, violence-free workplace. The employee then petitioned the Superior Court to review the City Council’s decision, alleging that the City abused its discretion in selecting the penalty of termination.
Associate Attorney Safarloo argued that the employee violated the City’s zero-tolerance policy against workplace
First AMENDMENT
Public Works Director Who Resigned After Criticizing The Mayor Could Not Prove First Amendment Retaliation.
Kevin England, Mayor of Chubbuck, Idaho, appointed Rodney Burch to be the City’s Public Works Director in 2015. For the first six years of Burch’s tenure, he and Mayor England had a good working relationship. During that time, Burch communicated his concerns regarding City management directly to England without issue and ultimately developed a strategic plan to improve operations, which obtained the City Council’s approval.
By 2021, England and Burch’s relationship had soured. Burch, frustrated with England’s policies and performance, proposed changing the City’s management structure from a strong mayor system to a weak mayor system by creating a City administrator position. He criticized England for: failing to implement the strategic plan; mismanaging budgeting; reducing revenue through a utility credit program; and failing to support Public Works effectively. Burch argued that a City administrator would improve oversight and reduce waste. England ultimately rejected the proposal.
Councilmember Dan Heiner challenged England in the 2021 mayoral election. Burch placed a campaign sign for Heiner in his front yard. One of Burch’s neighbors informed England of Burch’s yard sign.
England won re-election. England spoke with the City’s legal counsel and human resources director about removing Burch for cause or requesting Burch’s resignation. England said that he no longer trusted Burch because of his City administrator proposal and the documents Burch created that sharply criticized England.
England met with Burch and asked him to resign. Burch refused. England then scheduled an executive session of the City Council to argue for Burch’s removal, but the Council declined and instructed the two to continue working together. By 2022, Burch resigned, claiming that England had cut Burch out of decision-making and that many of his duties had been reassigned to his subordinates.
Burch then sued the City and England, claiming that England had retaliated against him based on his protected speech under the First Amendment. Burch alleged that his duties and decision-making were reduced and that he was constructively discharged due to his: protected speech, which included criticisms of England’s policies and performance; advocacy for a City administrator position; and political yard sign supporting England’s opponent. The district court granted summary judgment to the City and England. Burch appealed.
The Ninth Circuit Court of Appeals affirmed. The Court found that Burch was not constructively discharged. Burch had complained that he was working 2.5 jobs, so the reduction in his duties and decision-making did not rise to the level of intolerable working conditions that would cause a reasonable person to resign.
As to the First Amendment issues, the Court reasoned that Burch’s criticisms of England’s policies and performance, and advocacy for a City administrator position, addressed matters of public concern, as did Burch’s yard sign. The Court found that Burch’s criticisms and advocacy were made as a public employee, and therefore, were not protected speech. But Burch’s yard sign was not displayed as part of his role as a public employee and thus was protected speech.
The Court concluded that Burch failed to establish a First Amendment violation because the City and England had adequate justification for their actions and would have taken the same actions regardless of the yard sign. The Court found that the Mayor and City had legitimate reasons for their actions, including Burch’s unprotected speech and the need to maintain effective City operations.
Burch v. City of Chubbuck, 146 F.4th 822 (9th Cir 2025).
John Louis Chiappe is an Associate in our Sacramento office, where he provides labor, education and employment law expertise to our clients.
Selena Farnesi, an Associate in Liebert Cassidy Whitmore's Fresno office, brings extensive litigation and policy experience to LCW’s public sector practice, with a focus on education, employment, and administrative law.
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Question:
One of our firefighters severely injured her hand off-duty. She cannot handle a fire hose, among other essential functions, until her hand and nerve heal, in about two – three months. She does not want to take paid leave, and has requested an accommodation. Does the law require our department to create a light duty position for her?
Answer:
No. The state and federal disability discrimination acts do not require an employer to create a “light duty” position unless the tasks the employee cannot perform are marginal job functions. Handling a hose certainly appears to be an essential job function of a firefighter, as opposed to a marginal one. Since the firefighter has requested an accommodation, however, the department must convene an interactive process to analyze the essential job functions and meet with the employee. Although the employee does not want to take paid leave, state and federal family leaves can be unpaid and may apply if the employee meets the eligibility requirements.
Did you know?
Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety.
• CAL FIRE recently launched its “Set, Go” campaign runs urging people who live in fire-prone areas to create a family wildfire action plan, pack emergency kits, and leave early when wildfires threaten their homes.
• As California enters the middle of its fire season, the Office of Emergency Services has begun pre-deploying engines, bulldozers, helicopters, water tenders, and personnel to counties experiencing high temperatures, low humidity, and dry lightning. Local fire agencies identify when conditions in their community may require additional resources and staging locations; response assignments are coordinated by local officials.
• SB 581 would transition CAL FIRE’s Fire Fighter I classification from a temporary position, to a full time, permanent position, thereby ensuring that CAL FIRE has adequate coverage throughout the year.
Harassment Prevention Training for Fire Agencies
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Liebert Cassidy Whitmore