Fire Dep’t v



Fire Dep’t v. Anonymous

OATH Index No. 1273/08 (June 12, 2008)

Firefighter guilty of disobeying an order to work a detail at another firehouse. Respondent failed to prove that obeying the order would have threatened his or anyone else’s health or safety. ALJ recommends 10-day penalty.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

FIRE DEPARTMENT

Petitioner

- against -

ANONYMOUS[1]

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

The Fire Department brings this disciplinary proceeding against respondent, a firefighter with the Department, pursuant to section 15-113 of the Administrative Code, alleging that he disobeyed an order to work a detail at another firehouse and that he violated his oath of office by doing so. Respondent denies the charges.

The hearing was held on April 23 and May 13, 2008. Petitioner presented the testimony of five Department witnesses. Respondent testified on his own behalf and presented the testimony of five Department witnesses. The Department proved the misconduct and, as penalty, I recommend that respondent forfeit 10 days’ pay. See Admin. Code § 15-114.

ANALYSIS

Respondent is charged with refusing a direct order from a superior officer to work a “detail,” i.e., a shift assignment at another firehouse, and with violating his oath of office by doing so.

According to the employment law principle of “obey now, grieve later,” an employee must promptly obey a supervisor’s order, even if he disagrees with its wisdom, and dispute its propriety through formal grievance procedures. Ferrari v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Dep’t of Environmental Protection v. Mosley, OATH Index No. 1893/05 (Feb. 28, 2006), aff’d in part, rev’d in part, modified on penalty, Comm’r Dec. (Apr. 5, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-16-SA (Dec. 29, 2006). There are three recognized exceptions to this principle: where the order is clearly outside of the supervisor’s authority (Ferrari, 64 N.Y.2d at 856-57, 477 N.Y.S.2d at 617), where the order is unlawful (Alper v. Gaffney, 73 A.D.2d 644, 422 N.Y.S.2d 744 (2d Dep't 1979)), or where obeying would threaten the health or safety of an employee or other person (Reisig v. Kirby, 62 Misc. 2d 632, 309 N.Y.S.2d 55 (Sup. Ct. Suff. Co. 1968), aff'd, 32 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969)). In this case, respondent claims the health and safety exception to the rule.

Respondent contends that he suffered a “stress attack” after being given the order by his lieutenant to take the detail, which prevented him from being able to carry out the order.

The evidence was clear that the Lieutenant issued respondent at least one direct order on the morning of February 16, 2007, to work a detail at Ladder Company 40 in Harlem. Lt. Garcia testified that he spoke to respondent in the kitchen of the firehouse and told him he was assigned to the detail. He said he had to tell respondent twice, because he immediately refused the assignment and walked out of the kitchen (Tr. 40-41). The Lieutenant denied yelling at him (Tr. 83). About 30 minutes later, he went into the bunk room to remind respondent that he had a limited amount of time to get to the assigned firehouse (Tr. 41). A few minutes later, respondent came to him and said that he was “tapping out,” i.e., going sick (Tr. 42). Other firefighters corroborated the Lieutenant’s account in many details.

Lt. Torrey, who was a firefighter at the time of the incident, said he witnessed the conversation in the kitchen (Tr. 92-93, 99). He said Lt. Garcia told respondent three times to take the detail and that respondent refused all three times; he did not recall the Lieutenant raising his voice. Torrey said that he and Firefighter Gaboff later advised respondent to take the detail and that respondent objected, telling Torrey that if he did, it would mean that they could order him to take a detail “anytime they wanted” (Tr. 94-95). Lt. Torrey thought it was “silly” for respondent to make a big deal out of taking a detail.

Lt. McEnroe, who also was a firefighter at the time of the incident, was in the kitchen and heard respondent refuse the order twice; he objected that another firefighter was listed on the assignment chart to work the detail (Tr. 104-05). McEnroe said he told respondent to take the detail. He said that a spirited debate erupted in the kitchen among the firefighters who weighed in on the question of whether an officer’s order should trump the assignment chart (Tr. 106). According to firehouse protocol, a firefighter was assigned to the detail according to an assignment chart kept in the watch house, but the firefighters most often negotiated among themselves who would do it (Tr. 61, 107, 139, 155, 268). Details are highly prized by those who wish to make overtime and are typically relinquished by those who do not (Tr. 112). Respondent avoided overtime and had not worked a detail in two years (Tr. 5). It was rare, though, for a firefighter to be given an order to take a detail. Some firefighters felt strongly that this was a democratic freedom they enjoyed that did not require supervisory attention, while others were clear that orders had to be followed no matter what informal procedures were normally available to them. Firefighter Biunno described the kitchen debate as “mini hysteria” with a lot of “point, counter-point going on” (Tr. 158). Lt. McEnroe believed that the firefighters who advocated disobeying the order were offering poor advice because they would not suffer the consequence of respondent’s disobedience (Tr. 111).

Respondent testified that he walked out of the bunk room around 8:45 a.m. and heard Lt. Garcia down the hallway “bark” out “something about a detail” (Tr. 269). He did not hear what he said. He went downstairs and there was a discussion about who wanted the detail that day. It was routine, he said, for the firefighters to decide who would take the detail. He said the firefighters had meetings in which they discussed company policy “and the officers sit in on these meetings” and everyone agrees on the policy that is eventually set (Tr. 268). He claimed that he was unaware at the time that he had been assigned the detail (Tr. 270). When he “hear[d] something about a detail,” he went to see who was in the detail slot on the chart and discovered that he was not on the chart. Eventually, he “heard a rumor, something about the captain wanting me to take a detail” but the captain said nothing to him (Tr. 271-72). Having never been ordered to take a detail before, he said it “made no sense” to him, because it was a matter normally left up to the membership to work out. He asked Firefighter Polimini, who was in the detail slot, if he had a problem with taking the detail and he said he did not. As he spoke to Polimini, Lt. Garcia told him he was taking the detail. His reaction was “what do you mean I’m taking the detail? I’m not in the slot. I just couldn’t understand it, I didn’t know where it was coming from” (Tr. 272). Others were present in the kitchen at the time.

Respondent said he told the Lieutenant he would take the detail and the Lieutenant pointed at him and yelled with the phone in his hand, threatening him with charges and saying, “are you refusing to take this detail?” Respondent said he replied twice saying, “I am not refusing, I am not refusing” (Tr. 274).

There were several aspects of respondent’s account that were not credible to me. First, I noted that respondent’s version of the kitchen encounter was not corroborated by any other witness, even though many of the witnesses were present in the kitchen at the time. Even those who testified favorably for respondent did not hear him tell Lt. Garcia that he was not refusing the order. No one reported that the Lieutenant had a telephone in his hand. More significantly, I thought that respondent’s claim that his assignment to the detail was somehow the subject of “rumor” or indirection was completely inconsistent with any account of Lt. Garcia’s approach. It was also inconsistent with respondent’s depiction of Lt. Garcia as overly aggressive. The more credible evidence was that Lt. Garcia gave respondent a clear and direct order to take the detail; he would not have floated a “rumor.” Thus, I found that respondent’s version of events lacked credibility and did not rely upon it.

In general, respondent described his relationship with Lt. Garcia as “tenuous” and “contentious” and said that others may not know about it because the Lieutenant would yell and curse at him in his office (Tr. 255-56). Echoing Firefighter Meliti’s testimony, he said that he did not feel “safe” around Lt. Garcia (Tr. 257).[2] He said “the brothers” told him to “watch out, he’s out to get you.”

Some of the firefighters had witnessed the difficult relationship between the two men. Firefighter Johnson described it as “stressed” (Tr. 140) and Firefighter DeDonato said it was “volatile” (Tr. 173), but some firefighters were unaware of it (Tr. 108).

Lt. Garcia enumerated several performance-related failings of respondent’s that seemed to define their relationship. For example, Lt. Garcia complained of respondent’s sloppy appearance (being unshaven and disheveled), uniform violations (walking around the firehouse barefoot or wearing sneakers), and his disrespect to superior officers (Tr. 45-48). Lt. Garcia also complained that respondent refused to complete CPR training to become a certified first responder even after a battalion commander ordered him to (Tr. 49-50). He also described in detail an incident in which respondent was AWOL for an hour because he had left the firehouse to eat at a local pizza restaurant (Tr. 53-54). His absence was discovered when the battalion chief conducted an unscheduled visit to the company. Lt. Garcia was held responsible for the disappearance. He regretted affording respondent the courtesy of leaving the firehouse to eat the meal because he took advantage of it by absenting himself for an hour, rather than returning to the house with the food – something that other firefighters would not have done.

Lt. Garcia once called a meeting with respondent and a union delegate to level his complaints about respondent’s performance and demeanor with superior officers (Tr. 52-53, 57). Motivated by the AWOL incident and another incident in which respondent disobeyed an officer’s order, he presented respondent with a transfer request form that he filled out for him. He denied demanding that respondent sign the form against his will and said that the purpose of the meeting was to discuss the possibility of bringing charges for the AWOL and to issue a threat that if his conduct continued he would be asked to sign the transfer (Tr. 59). He thought respondent should agree to leave because of his “constant screw ups.” Firefighter Meliti said he was present at the meeting, about a year earlier, and that Lt. Garcia demanded respondent’s transfer because he refused to take certified first responder training (Tr. 195-97). He said that respondent did not sign the papers, however.

It was clear that Lt. Garcia, a former military officer, was irked by respondent’s informality in the firehouse and disregard for rules and that he did not hold respondent’s work performance in high esteem. Captain Moran also acknowledged that Lt. Garcia and respondent had a confrontational relationship because of the Lieutenant’s complaints about his performance (Tr. 18-19), but he noted that respondent had problems with other officers as well (Tr. 25).

Despite the difficulty in their relationship, I regarded respondent’s claims about Lt. Garcia’s alleged menacing nature to be exaggerated. At trial, Lt. Garcia was stern but even-tempered throughout a lengthy cross examination, and I found his reactions to respondent’s failure to wear proper uniform and discourtesy to superior officers to be appropriate, particularly in the context of his managerial duty to invoke order, discipline and respect for the chain of command which is critical to the uniformed services. I also believed that his conflict with respondent was generated by respondent’s performance-related failings rather than by some more inappropriate instinct, like bias.[3] Similarly, I did not believe that respondent feared the Lieutenant, as he claimed, as the record showed that he had a history of defying him.

To establish the “health or safety” exception, an employee must establish by a preponderance of the evidence that (i) the “health threat was not only ‘imminent and serious,’” (ii) that his assessment of the risk was objectively reasonable, and (iii) it was the actual reason for his conduct. Dep’t of Transportation v. Hines, OATH Index No. 790/07, at 4 (Feb. 9, 2007); Dep’t of Sanitation v. Keyes, OATH Index No. 1872/06, at 3 (Nov. 16, 2006); Dep’t of Sanitation v. Cunningham, OATH Index No. 1332/02, at 17 (Nov. 4, 2002). A subjective belief of danger is not sufficient. Dep’t of Sanitation v. James, OATH Index No. 2186/99, at 2-3 (Oct. 5, 1999).

Respondent described the onset of what he called a “stress attack” that led to his refusal to take the detail, as follows. Respondent said that he felt “like a ping pong ball,” pulled in both directions by the kitchen debate that grew out of his being ordered to take the detail (Tr. 273-74). He claimed that he had no problem with taking the detail, but he felt pulled in both directions by the discussion. Firefighter Gaboff, a union delegate, testified that respondent asked him what he should do and he told him to take the detail after he heard the Lieutenant threaten to bring him up on charges (Tr. 183-84). He offered him his car so he could drive to Ladder 40. So respondent gathered up his gear and took Firefighter Gaboff’s car keys. But he remained torn by the guys in the house who were “coming at me” with their opinions on the issue (Tr. 274).

The pressure from both sides got to him and, he said, his “mind started swimming” and his heart raced (Tr. 275-76). He then suffered a stress attack. He did not feel well; he was “shaken” and in a “cold sweat.” He testified that he had had “stress attacks” before this incident and that he had sought counseling and time off because of them. He was so stressed out that he could not operate a car, he said, but he did not tell anyone how bad he felt. He realized as he walked out of the firehouse that he was unable to work. So he took Firefighter Gaboff’s advice not to work if he felt he would put someone in harm’s way. He said he was “not able to focus on what I need to focus on to go and serve with the brothers in Harlem and fight fires for the day. That’s when I said, I have to talk to someone, I have to see a doctor” (Tr. 276). So he told Lt. Garcia that he was going sick.

Lt. Garcia said he was unaware of any stress-related medical leave that respondent had previously taken (Tr. 74). He said respondent told him he was tapping out but never told him it was because of stress (Tr. 80). He denied being angry about it, but he did believe that respondent was tapping out only because he did not want to take the detail.

Respondent’s physical condition at the time that he refused the order is important to consider. Most witnesses made no note of any change in respondent’s appearance and had no idea that he was suffering under a stress-related condition. Lt. Garcia testified that there was “nothing unusual” about respondent’s physical condition when he saw him and that he made no mention of any illness when he said he was tapping out (Tr. 42). Lt. Torrey testified that he observed nothing unusual about respondent’s physical condition and respondent never told him he felt sick (Tr. 94, 102). Lt. McEnroe said that respondent never appeared sick and he was unaware that respondent ever said he was sick (Tr. 115). Firefighter Biunno testified that respondent seemed “a little excited,” “conflicted,” and unhappy that he was being sent on the detail (Tr. 157), but respondent never told him that he was not feeling well, nor did he hear him tell anyone else (Tr. 164). Firefighter DeDonato said that, as respondent prepared to leave, he seemed disappointed and confused about why he was being sent on the detail, but his demeanor was not much different from normal. He did not hear respondent say he was sick or stressed out, or that he had decided to go out sick.

Firefighter Gaboff, on the other hand said that respondent looked upset, confused and “very stressed” as he gathered his gear to leave, so he told him that he also had the “option” to go out sick with “stress” (Tr. 183-84). Respondent thought about it and said, “yeah, maybe that’s what [I’ll] do.” Then respondent went to Lt. Garcia and told him he was tapping out. Firefighter Gaboff said it was not safe for a firefighter to work while he was stressed, but he admitted that respondent never told him that he felt “stressed, sick or ill” and that he saw no sign that respondent was in any danger or needed immediate medical attention (Tr. 188-89).

Firefighter Johnson was the only witness who reported that respondent had a physical response to the encounter. He said he saw respondent shaking and sweating, his hands trembling, and that he looked like he was going to cry (Tr. 142, 147). Yet, when asked if he ever inquired whether respondent was okay, he said he did not. When asked if respondent needed immediate medical attention, he offered a circular answer saying, he did “if [he was] stressed out” (Tr. 147). Although his account corroborated respondent’s claim that he was experiencing physical signs of stress, I found Firefighter Johnson to lack credibility overall. I noted that he used the word “stressed” to describe respondent’s demeanor so frequently as to appear to be rehearsed. He also testified that respondent announced in the kitchen that he was “stressed out” and was going sick at the time of the altercation with Lt. Garcia -- a claim that no other witness corroborated, including respondent who said he made this announcement to the Lieutenant a half hour after the conversation in the kitchen.

The Department’s Chief Medical Officer conducted an examination of respondent on the day of the incident consisting of an interview and an assessment-for-duty evaluation (Tr. 116-18). A board certified family physician, Dr. Kelly has worked as a physician for the Department since 1981. Having evaluated hundreds of firefighters and fire officers for fitness for duty, she was qualified as an expert for that purpose. There was nothing in Dr. Kelly’s testimony that helped confirm the severity of the stress response described by respondent.

Dr. Kelly said she conducted no physical examination of respondent because, when they met hours after the incident occurred, he did not report having any physical complaints or physical manifestations of stress (Tr. 133-35). He never said he felt ill (Tr. 122). Respondent’s conversation with Dr. Kelly is telling. According to her, respondent reported that he was stressed after a negative interaction with a superior officer who ordered him to take a detail that he did not want to take (Pet. Ex. 2; Tr. 119). He explained to her that officers were “not needed” in the day-to-day running of the firehouse and that his superior officer was not using the standard operating procedure of the house when he ordered him to take a detail, and when “he tried very nicely to tell the officer why that officer had no right to send him on that detail,” a “shouting match” erupted (Tr. 132). Thus, he felt that he could not continue working with that officer. She placed respondent on light duty, because she did not want to return him to the firehouse where he was having conflict with a superior officer, and she scheduled a follow up evaluation with a Department psychiatrist. Her examination report notes her diagnosis as “encounters for administrative purposes” which she said meant that “a personality difficulty in the firehouse” had caused his visit (Tr. 121; Pet. Ex. 2).

Dr. Kelly said she did not place respondent on medical leave because he was capable of work (Tr. 121). Although she has placed firefighters on medical leave for stress-related illness, she found that respondent was not experiencing enough stress to justify placing him on leave (Tr. 131). She did not diagnose him with situational stress and said “there was nothing about his appearance that . . . suggested he was stressed or upset”; he spoke calmly and wanted her to understand how the firehouse worked and went into the details of the system (Tr. 133). She saw no reason why he could not have done the detail but allowed that she did not perform a physical evaluation.

Respondent argues that his physical symptoms of stress had remitted in the hours before seeing Dr. Kelly, but he failed even to report to Dr. Kelly that he had had any physical manifestations of stress. Two days later, he apparently reported to Dr. Maloney that he was experiencing stomach problems (gastroenteritis) for which Dr. Maloney placed him on medical leave with a diagnosis of “situational family stress” and “family illness” (Tr. 129-30; Resp. Ex. D). There was no evidence connecting the gastroenteritis or its diagnosis to the encounter with Lt. Garcia days earlier.

Respondent submitted the medical notes from his periodic visits to the Department’s Counseling Services Unit to support his claim that he suffers from a stress condition (Resp. Exs. E, F, G & H). Although the notes document a history of stress-related complaints both arising from family and work- related matters, none of the records indicate a diagnosis of a stress-related condition or confirm that respondent had been experiencing “stress attacks.”

Progress notes from respondent’s earliest counseling sessions indicate that he had a skin condition attributed to stress in April 2003 (Resp. Ex. E). One note indicates that respondent was considering whether to leave the Department, feeling that the job may not be for him and reporting pressure from his family.

Counsel draws a parallel between the current incident and one occurring in October 2006. On October 27, 2006, respondent was referred to the Department’s Counseling Service Unit (“CSU”) where he saw Dr. Feirstein in five sessions through September 2007 (Resp. Ex. F). According to respondent, he sought counseling at that time because of pressure from Lt. Garcia to complete his first responder certification (“It was his personal mission that I renew it”), and because the Lieutenant had demanded his transfer (Tr. 257-58). Dr. Feirstein put respondent on light duty and encouraged him to see a private therapist on a consistent basis (Resp. Ex. F, at p. 1). Respondent encountered conflict with other officers even on his light duty assignment (Tr. 259, 262-63). A month later, Dr. Feirstein assessed whether he should return to full duty and decided to keep him on light duty due to his “subjective complaints.” The doctor did not validate respondent’s complaints with an objective diagnosis. In fact, Dr. Feirstein appeared to be awaiting a diagnosis from respondent’s private therapist, noting on March 5, 2007, that a letter from that therapist mentions “job related stresses” but offered no diagnosis (Resp. Ex. F, at p. 6).

The CSU notes indicate that respondent had been seen by other clinicians at the CSU and, according to one clinician, was “known to be manipulative, noncompliant” (Resp. Ex. F). On his initial intake, respondent reported “overwhelming stress” due to personal problems that included cancer therapy being undertaken by extended family members. He also reported that Lt. Garcia was being “unfair” to him and that a senior man in the firehouse was filing an EEO complaint on his behalf which made him feel like a “ping pong ball” in the firehouse.[4] Dr. Feirstein wrote that respondent had experienced “major interpersonal difficulties in every firehouse where he has worked” and that respondent conceded that he may be an individualist who does not fit in the group; he reported negative interactions with other firefighters and with one officer who “micromanages” him (11/3/06); in one note the doctor asks that respondent be given a light duty assignment away from his firehouse (11/6/06); another note indicates that respondent went sick because of stress and was put back to full duty the next day (9/7/07). In none of these notes does Dr. Feirstein provide a diagnosis of any particular medical or psychological condition. None mention that respondent suffered “stress attacks,” as respondent testified.

In the aftermath of the altercation with Lt. Garcia in February 2007, respondent began seeing Dr. Barry for counseling. Respondent submitted Dr. Barry’s notes (from April to September 2007) which indicate that some of respondent’s treatment goals were to develop “strategies to lessen conflict situations” and to “adjust to demands of co-workers” (Resp. Ex. H). His treatment plan included, among other things, taking “ownership of part of the problem,” assessment of his “suitability” for the Department, and reviewing “approaches to not participate in conflict situations nor to provoke them” (Resp. Ex. H). Again, there is no mention of stress attacks. To the contrary, these notes consistently suggest that respondent himself was at least in part the cause of his difficulties at work.

The record indicates that the Department, choosing to operate with an abundance of caution with respect to the mental health of its fire personnel, encourages use of the counseling service and liberally grants light duty assignments based upon a firefighter’s subjective complaints alone; therefore, the record did not lead me to conclude that respondent’s use of the available counseling evidenced an incapacity to work. While the records document a consistent pattern of counseling based on a variety of patient complaints, there are no concerns noted by the clinicians about respondent’s ability to perform as a firefighter or to protect the public safety.

The burden of establishing the health and safety exception as a defense to the insubordination charge lies with respondent who must show that he had a fear of imminent danger to his health and safety that was objectively reasonable, and that it was the actual reason for his disobedience of the order. See Donofrio v. Spinnato, 144 A.D.2d 672, 534 N.Y.S.2d 705 (2d Dep’t 1988) (firefighter’s illness excused his disobedience of an order based on evidence that medical officer found him unfit for duty); Hines, OATH 790/07 (highway repairer who suffered from blackouts had a reasonable belief that pothole work would endanger his safety); Keyes, OATH 1872/06 (sanitation supervisor diagnosed with vertigo on day he refused to drive because he felt too sick faced a serious and imminent threat to safety and made an objectively reasonable assessment of his risk). Respondent did not meet this burden for several reasons.

First, I did not believe respondent’s testimony that he suffered an actual “stress attack” after being given the order by Lt. Garcia. There was no evidence among the numerous pages of doctor’s notes submitted in evidence that respondent had ever suffered a “stress attack,” or any other stress event that incapacitated him or made it unsafe for him to perform as a firefighter. Moreover, there was no reliable evidence that he suffered stress to any degree that incapacitated him on the date of the incident. When respondent left the firehouse, he went to the counseling unit rather than a medical facility. The only medical personnel to testify, Dr. Kelly, could not confirm that he was incapacitated and saw no evidence of it during her examination. She found him fit for duty. Most of the fire personnel present at the time of the incident did not see respondent experience any particular reaction to the order, except grudging resistance. The testimony offered by respondent and Firefighter Johnson that supported respondent’s claim that he was physically affected by the incident was not accorded significant weight because I found it unreliable.

The vague and frequent use of the word “stress” in respondent’s testimony and in that of Firefighters Johnson and Gaboff seemed to suggest a belief that the word held a talismanic power to absolve employees of responsibility for their conduct. Such an interpretation of the health and safety exception would be inapt (Health and Hospitals Corp. (Coler-Goldwater Hosp.) v. Hinkson, OATH Index No. 163/04 (Nov. 21, 2003) (employee’s claim that he was too tired to work mandatory overtime was too vague to establish that his refusal to work was justified by the threat to his and his patients’ health and safety)), and it would throw into chaos the order and discipline necessary to run a fire department. Rivera v. Beekman, 86 A.D.2d 1, 6-7, 448 N.Y.S.2d 492, 495-96 (1st Dep’t 1982) (it is “manifestly untenable” for quasi-military structure of fire department to allow subordinates to disobey superior officers).

To the extent that respondent was stressed out by the order, it was due to his lack of respect for the Lieutenant’s authority and his upset that he had to comply, not because he was suffering from debilitating stress that made it dangerous for him to work. Given his dislike for the Lieutenant, it would seem that an assignment to another firehouse would relieve respondent of the stress of having to encounter him. Instead, respondent’s conduct was consistent with defiance toward a task he found unpleasant. First, he refused the Lieutenant’s order, to his face. Next, he asked another firefighter if he would take the detail. He then delayed and dragged his feet, asking his fellow firefighters whether he should take the detail, while decrying the unfairness of it all. Why him? He asked. Respondent sought every possible option to avoid compliance with the order, until he settled on the option that Firefighter Gaboff offered him -- “tapping out” sick. According to Gaboff, respondent thought about this option before deciding to take it which, a half hour after the order was given, was not a spontaneous reaction to the order but a conscious decision to take sick leave rather than work the detail. See Cunningham, OATH 1332/02, at 19-21 (sanitation worker who refused order to clean a garbage truck failed to prove that he suffered from claustrophobia and anxiety with mere medical note written after the incident).

Respondent’s distaste for authority also was evident in Dr. Kelly’s testimony that he spent his time with her explaining that superior officers were “not needed” in the firehouse and that his superior officer was acting inappropriately by violating protocol, completely dismissing the guiding principal of the chain of command. This is consistent with his insistence that firehouse policy was democratically established at meetings attended by everyone in the firehouse, as if it were an entitlement. Speaking to Lt. Torrey, respondent voiced his objection to the notion that his superiors could order him to take a detail “anytime they wanted” (Tr. 95). He told Firefighter Gaboff that the Lieutenant’s order was a “personal attack” on him (Tr. 187), even though he had not worked a detail in two years (Tr. 5). Lt. Torrey thought that respondent’s objection to being ordered to take a detail was “silly” and I tend to agree. His refusal was a petulant refusal to concede to authority, thinly disguised by a bogus medical complaint.

In the absence of convincing evidence that respondent was experiencing an actual stress attack or other disabling event at the time he was ordered to take the detail, I find that he lacked an objectively reasonable fear of imminent danger. I also find that his actual reason for disobeying the order was his distaste for being sent on an assignment that he did not want. Accordingly, he has failed to establish a defense to his failure to comply with Lt. Garcia’s order.

Thus, respondent is guilty of misconduct for unlawfully refusing his superior’s direct order.

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent disobeyed an order to take a detail.

2. Respondent failed to establish that obeying the order would have threatened his or anyone else’s health or safety.

RECOMMENDATION

Having made these findings, I requested and reviewed respondent’s personnel record. Respondent has been a firefighter since May 9, 1999. He has no prior disciplinary history. Performance evaluations, which are “satisfactory,” indicate that early in his tenure with the Department respondent had difficulty “demonstrating initiative towards his work [and] enthusiastic commitment to his Company.”

Here respondent has been found guilty of disobeying an order of his superior officer to take a detail in another firehouse. The Department seeks a penalty of 10 days.

Obedience to lawful orders of a superior is not only required, but it is essential to the Department’s mission to protect the public safety. It is unfortunate that the concept of obedience to orders would become the subject of such vociferous skepticism and debate as it did in this firehouse. As one court has noted:

One who becomes a member of the New York City Fire Department subjects himself to its rules and regulations. The suggestion that the order of a superior officer can simply be disobeyed whenever a subordinate concludes that it is unreasonable is manifestly untenable. The organizational structure of the fire department, a quasi-military organization, would be irreparably harmed and its orderly operation substantially impaired if such conduct were countenanced.

Rivera v. Beekman, 86 A.D.2d 1, 6-7, 448 N.Y.S.2d 492, 495-96 (1st Dep’t 1982). If a member disagrees with the concept of the chain of command, he has no place in a fire department.

Respondent’s defense is based upon the central thesis that a firefighter trained to run into burning buildings could be incapacitated merely by the stress of being issued an order by his superior officer to take an assignment he did not want (Tr. 215). If respondent means to assert that conceding to authority causes him incapacitating stress (a fact that he did not prove here), then firefighting would not be an appropriate career for him. Indeed, his counsel appeared to be arguing for some sort of permanent disability status or accommodation asserting that, on the day of the incident, he had a stress attack “triggered by what always triggered his stress attacks. Stress on the job, also coupled with stress related in his life, and it’s the type of person he is and perhaps . . . there should be a reassessment in the fire department of what particular duties are suitable for [him]” (Tr. 318). If respondent seeks to establish an entitlement to permanent disability, he would have to do that in another forum. Suffice to say that respondent’s ongoing internal conflict about firefighting and ambivalence about fitting into his work environment, as he and the counseling records acknowledged, poses the question whether this is the job for him.

Accordingly, for the misconduct proven here, I recommend a penalty of 10 days’ pay forfeiture in accordance with section 15-114 of the Administrative Code.

Tynia D. Richard

Administrative Law Judge

June 12, 2008

SUBMITTED TO:

NICHOLAS SCOPPETTA

Commissioner

APPEARANCES:

MATTHEW J. GELLER, ESQ.

Attorney for Petitioner

WATTERS & SVETSKY, LLP

Attorneys for Respondent

BY: KYLE B. WATTERS, ESQ.

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[1] Respondent’s name is being withheld for purposes of publication because this decision discusses his medical records which include matters of a personal nature. This accommodation is being made sua sponte as the parties have not requested it.

[2] Firefighter Meliti was not in the firehouse on the day of the incident, but he said he thought that respondent feared Lt. Garcia (Tr. 193, 201). He said that Garcia had yelled in his face four or five times and sometimes would not speak to him, but he had never seen Lt. Garcia touch respondent (Tr. 204). I attributed little weight to this firefighter’s testimony due to his admitted dislike for Lt. Garcia (Tr. 199-201) and the fact that he was transferred from Engine 70 in November 2006 as a result of an altercation with Lt. Garcia (Tr. 193). As some indication of the depth of his disdain, when asked how he would have responded if given an order by Lt. Garcia to take a detail, he said he would have refused to comply, “I would do the same thing [he did] that day. I would absolutely refuse it” (Tr. 206). Notably, his response was not premised upon the onset of illness.

[3] Lt. Garcia’s actions were interpreted as bias by counsel who accused him of being “the person who was going to ride [respondent] until either [he] left the firehouse or Lt. Garcia got his way in regard to what [respondent] was going to do” (Tr. 311). In a paramilitary organization, a superior officer should “get his way” in his training of a subordinate. I found the Lieutenant’s actions were intended to burnish this firefighter by reinforcing compliance with rules.

[4] The record failed to indicate whether an EEO complaint was actually filed.

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