Pasco firefighters' retaliation claims headed to trial
WESLEY CHAPEL - A federal judge has dismissed claims by a pair of Pasco County firefighters that the department created a hostile work environment. But Judge James Moody also ruled there is enough evidence that the county and the International Association of Firefighters Local 4420 had retaliated against the plaintiffs for the case to go to trial next month. "This is an issue appropriate for a jury to decide," Moody wrote in his ruling Friday. Anthony Booth, a firefighter-EMT who is Hispanic, and Jerry Brown, a driver-engineer whose wife's family is Jewish, are seeking compensatory and punitive damages, back pay, attorneys' fees and other litigation costs.The case arose from complaints both men filed in 2007 against Capt. Mark Bodden, their supervisor at Station 14. After an internal investigation, department officials agreed that Bodden had violated at least nine county policies. He was transferred and ordered to enroll in anger management and diversity training, but he still received a merit pay raise, according to court documents. Booth and Brown also were transferred to other stations after they filed their grievances and Equal Employment Opportunity Commission complaints. The lawsuit alleges at least one of the men was passed up for promotion and marked down on evaluations because of the grievances. Brown also alleges he was denied a day off to tend to family matters when his sister died. In his order, Moody wrote that "while Bodden's racially insensitive comments and behavior is surely discriminatory and offensive, it is simply not sufficiently severe to state a claim for a hostile work environment." He noted that Booth "presented evidence of isolated incidents of relatively mild harassment" over an eight-year period and that Brown cited no evidence of religious discrimination. The county's subsequent actions – in particular the involuntary transfers – appeared to be less a case of discrimination than possible retaliation against both men. "While the County alleges that it had legitimate, non-discriminatory reasons for taking all of its actions, this is a matter that will have to be left for trial as Pasco County has failed to present any kind of sustained argument in support of this contention," Moody wrote. Booth and Brown also were placed on unpaid leave and ordered to submit to psychological exams. Both were cleared by the department to return to duty. Another key issue in the lawsuit is a memo that was posted on a union bulletin board on county property. The memo named Booth and Brown and warned members that union dues likely would increase as a result of the "frivolous" lawsuit. In his ruling allowing the case to proceed to trial on that issue, Moody warned of the chilling effect such a memo could have on employee speech. "It is entirely foreseeable that the Union's distribution of the Legal Updates Memo would provoke anger from union members disinclined to pay for the defense of a frivolous lawsuit," he wrote. "Moreover, the alleged resulting social ostracism and associated problems is equally foreseeable. As no one volunteers for the role of social pariah, a reasonable juror could certainly conclude that the posting of the Legal Updates Memo would dissuade a reasonable worker from making a charge of discrimination." Moody found there "is some evidence that the County was responsible" for the memo. But Tracey Jaensch, the attorney for the county, said the county did not ratify and "played no role" in the posting of the memo, despite a clause in the union's collective bargaining agreement that requires county approval for all bulletin board materials. Jaensch also said the county took "prompt and appropriate action" regarding the firefighters' initial complaints. "Since then, the County has treated these employees fairly and they have suffered no economic losses whatsoever," she wrote in an email to The Pasco Tribune. "The County continues to provide them with mandatory overtime, pay increases available to all employees, and promotional opportunities." Yvette Everhart, an attorney for the firefighters, said Moody's ruling means her clients will get their day in court. "Now a jury will have an opportunity to confirm the EEOC's conclusions that Pasco County and Local 4420 retaliated against Anthony Booth and Jerry Brown for complaining about discrimination and filing charges with the EEOC," she said in a statement.
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