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North Hudson Regional Fire & Rescue officials pursued “a high degree of probability of harm and reckless indifference to consequences” by openly retaliating against a firefighter who complained that the department’s policies and procedures exposed his colleagues and the public at large to harm, a state appeals court has ruled.
Directors Jeffrey Welz and Michael DeOrio, along with Fire Chief Brion McEldowney wanted to quash a whistleblower suit filed by Capt. Steve Winters.
They claimed that two Civil Service Commission decisions upholding his demotion, suspension and eventual firing legally block him from suing them under the Conscientious Employee Protection Act.
Wrong, the appellate panel said.
Winters‘s suit claims the brass deprived him of his right to free speech when they disciplined him for remarks he made in various forums, including the day he asked members at a NHRFR committee meeting whether they had assembled a “strategic master plan” or a “risk analysis assessment.”
“If they haven’t been done,” he said, “what are our decisions based on?”
The directors and chief appealed after a lower court refused to block the captain’s suit. They also filed suit seeking a reconsideration of the original decision. This week, the higher court upheld the ruling.
Winters began working as a firefighter in Union City in 1984. He stayed on when the NHRFR was created in 1999 as a merger of five Hudson County municipal fire departments: the townships of Weehawken and North Bergen, the towns of West New York and Guttenberg, and Union City. Eventually, he rose to captain.
In 2002, Winters began taking his bosses to task. He began by submitting several reports over two years citing radio communication problems the squad was having — a situation that he said needed to be fixed before it cost a life.
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Winters also raised health and safety issues involving some of the department-issued equipment.
He then sent a letter to the president of the North Hudson Fire Officers Association accusing McEldowney of interfering with a fire investigation.
Then came another report from Winters, this one involving an anonymous firefighter who alleged that a battalion chief had sexually harassed him and some of his colleagues.
Without authorization from the top, Winters gave that report to another firefighter who was representing a colleague in the harassment case. In no time, the report made its way to the media.
An internal investigation found no grounds for the complaint.
In late September 2005, the NHRFR brass officially notified Winters in writing that his actions warranted a 60-day suspension and demotion from captain to grunt “based on charges of incompetency; inefficiency or failure to perform duties; insubordination; conduct unbecoming a public employee; neglect of duty; and other sufficient cause.”
For a copy of the N.J. Appellate Court ruling: CLICK HERE
Winters waived a disciplinary hearing and took the punishment, then appealed to the state Merit System Board. The panel shipped the matter to the Office of Administrative Law, where a judge — following an 11-day hearing — upheld the sanctions, calling Winters‘s behavior “reckless and egregious.”
The former captain began psychiatric care in April 2006 for what was described as an “overwhelming” work-related stress disorder. Two months later, after the brass again disciplined him — this time for his action while fighting a fire in which he was injured — Winters’s psychiatrist “felt it was imperative” that he take a stress leave, “as he now had symptoms of a severe clinical depression and was in
need of medication.”
After arranging to be out for three to six months, Winters took a per-diem gig as an electrical inspector for Old Bridge township, and another as a construction official in Long Branch.
Within a month, the NHRFR had Winters rexamined by a psychiatrist who found him fit to return to active duty.
The conflict came to a head in September 2006, when Winters spoke openly — in letters to Union City Mayor Brian Stack and local newspapers, and on TV appearances — about NHRFR practices that he insisted led to the death of a fellow firefighter.
His bosses ordered up another exam, which ended with similar findings of his fitness for duty, then they ordered him back to work on a modified basis.
He refused, citing his psychiatrist’s findings.
Soon after, the brass charged him with 10 counts of abusing sick leave — in particular, holding down two other jobs — and sought to have him fired. After Winters skipped the administrative hearing, he was bounced from the department on Nov. 30, 2006.
Another Administrative Law judge upheld the decision. An appeal by Winters is pending.
Based on the two disciplinary proceedings, the bosses at the firehouse went to court to try and stop Winters’s retaliation case against them in its tracks. A judge in Nov. 2009 denied the move, prompting the appeal that the brass lost this week.
Although an administrative judge’s approval of their actions can be considered legitimate, civil court is a different venue entirely, the appellate panel emphasized.
If Winters wants to claim the brass was looking for an excuse to can him — “pretextual reasoning,” as it‘s called in legal circles — it is within his Constitutionally protected right to do so, the judges found.
Their decision “will not discourage public employers from disciplining employees,” they said in their ruling. “[It] will only discourage them from retaliating against employees for engaging in protected whistle-blowing conduct under the pretext of discipline.”
In this case, the judges found, “there can be little doubt a reasonable factfinder could find that intentionally seeking an employee’s termination for protected whistle-blowing conduct is a ‘deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences‘.”
What’s more, NHRFR brass “made a number of disparaging comments about [Winters] to third parties, and publicly attacked his credibility after the sexual harassment allegations became public and plaintiff appeared on television criticizing NHRFR’s policies.”
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