Two employees allege discrimination in suits filed against Mehlville Fire Protection District

MFPD employees seeking $1 million in punitive damages from fire district.

By MIKE ANTHONY

Two Mehlville Fire Protection District employees are seeking actual damages plus punitive damages of $1 million in lawsuits they have filed against the district and Chief Tim White alleging discrimination.

The lawsuits were filed May 20 in St. Louis County Circuit Court by Tina Mecey, a firefighter/paramedic who has been employed by the district since September 2007, and Kenneth Robinson, a firefighter/emergency medical technician who has been employed by the district since September 2005.

Both employees are being represented by Rick Barry, an attorney who represents Mehlville Local 1889 of the International Association of Fire Fighters and the Missouri State Council of Fire Fighters. Barry was unavailable for comment before the Call’s press time.

In her suit, Mecey alleges gender discrimination, retaliation for reporting gender discrimination and discrimination on the basis of regarding her as disabled because she was pregnant.

In his suit, Robinson alleges discrimination on the basis of a perceived disability in that he could not pass the district’s fit-for-duty test, age discrimination and retaliation for filing a Missouri Human Rights Act charge of discrimination.

In her suit, Mecey contends that in late September she received an email from White stating she likely was going to be selected to take the district’s physical agility test.

“At the time she received the email from the chief, plaintiff was pregnant and concerned about taking the test,” the suit states.

Mecey’s physician wrote the district a note stating she was not to complete the physical agility test while she was pregnant and she presented the statement to her captain.

“Shortly thereafter, plaintiff received a phone call from the acting deputy chief and was informed that the physical agility test consisted of tasks she performed every day at work and that if she was unable to take the test, she cannot do her job,” the suit states, noting she was ordered to report with her crew for the physical agility test.

“Plaintiff changed into her workout gear and waited to be called for the test with the rest of her crew,” the suit states. “A short time later, a different deputy chief took over the shift and plaintiff informed him of the situation. The deputy chief expressed concern over the way plaintiff was being treated and told her she would not be taking the test and he would attempt to get her assigned to an ambulance for the day. Plaintiff was ultimately assigned to an ambulance for the remainder of the day and was eventually told by the chief that she was hired as a fire/medic and if she is not able to take the physical agility test, then should would be ‘off the track.’

“The following day, Sept. 30, 2010, plaintiff received a phone call and email from the Human Resources Department stating that she was to have a release signed by her physician to return back to work. The release provided by the Human Resources Department was related mostly to the firefighting duties. However, as a firefighter/paramedic, plaintiff spends a majority of her time on the ambulance, performing paramedic duties.”

The suit states Mecey’s physician would not sign the release provided by the district, but “provided her with a note which stated she was able to work on the ambulance without restrictions.” But she was told by the Human Resources Department that the chief said she was “off the track.”

“At that point, plaintiff was placed on pregnancy leave only 11 weeks into her pregnancy,” according to the suit, which states the physical agility test is “not a scientifically validated test” and alleges “there are other males who took the physical agility test and failed, but were allowed to return back to the district with a doctor’s statement. There was also another female employee who failed the physical agility test but was allowed to work on the ambulance until she could pass the physical agility test.”

The suit also alleges that the district’s rules and regulations “provide that modified duty may be given to employees who are not able to pass the physical agility test. However, plaintiff was not provided by modified duty, but immediately placed on pregnancy leave.”

The suit alleges, “As a result of defendants’ actions, plaintiff has lost the promotion she was close to receiving, has exhausted all her sick leave and vacation time and has lost a significant amount of wages and will continue to lose wages until she is allowed to return to the district. Plaintiff will lose seniority as a result of being placed on pregnancy leave. Plaintiff … over time will lose accrued benefits such as sick time, sick time bonus, step raises and pension plan contributions, as well as health insurance. Plaintiff will lose education and training.”

Mecey is seeking compensatory damages for lost wages and lost benefits since being placed on pregnancy leave, damages for severe emotional distress and punitive damages “up to and including $1 million for defendants’ intentional and malicious violation of plaintiff’s rights.”

Regarding Mecey’s suit, Board of Directors Chairman Aaron Hilmer told the Call, “At this point, the district has provided and extended coverage under the Family Medical Leave Act. In my opinion, we have gone beyond both district and federal guidelines and her suit is baseless.

“I am also not aware of any promotion as alleged in what I view as a claim without merit. She is certainly not the first pregnant employee of the district, but she is the first during my tenure to want a million dollars claiming she was treated unfairly.”

Robinson’s allegations in his suit center around the district’s fit-for-duty test, first imposed in 2009 and then conducted by PRORehab.

“This test was not supported by scientific evidence regarding its relationship to actual firefighting cases,” the suit states, noting the test was sanctioned by White.

In taking the test, Robinson’s heart rate exceeded the target rate for the test and was placed on administrative leave from December 2009 to April 2010, requiring him to use his accumulated sick leave.

“In April of 2010, PRORehab approved plaintiff to return to work, even though he had not yet attained the ‘target heart rate’ instituted by it and the chief. Plaintiff was never given the opportunity to get a note from his own personal physician releasing him to return to work, though others in the district were allowed to do so,” the suit alleges, noting Robinson’s physician would have provided such a note.

In September 2010, Robinson was selected by White to take another fit-for-duty exam, this one “drafted by an outside company with whom the district contracts,” according to the suit. “The protocol for the test required a completion time of 7 minutes, 49 seconds.

“However, the chief deviated from these protocols and required the test to be completed in 7 minutes, 4 seconds. According to the chief, the district is ‘premier’ and thus the testing demands upon firefighters/paramedics should be ‘premier.”

Robinson failed the test and was placed on administrative leave before taking the test again in October 2010. He was unable to complete it in the time allotted and again was placed on administrative leave, the suit states.

Taking the test a third time, Robinson completed it in 7 minutes and 48 seconds, completing it “as originally set forth by the outside company administering the test,” but not meeting White’s “more stringent requirement that the test be completed in 7 minutes, 4 seconds.”

The suit states, “Since January of 2011, the plaintiff has continued to use his sick time as the district will not let him return until he completes the fit-for-duty test within the time set for by the chief.”

The suit alleges that both fit-for-duty tests are “arbitrary, capricious and unreasonable,” particularly in light of the more stringent requirements imposed by White.

The suit states that after Robinson filed a discrimination charge with the Missouri Commission on Human Rights, he was asked to again take the fit-for-duty test and completed it in 7 minutes, 44 seconds — “within the time frame provided in the original testing protocols.”

“However, since plaintiff did not complete the test within the chief’s more stringent time requirement, he was told to come back and take the test in 30 days and he was forced to continue on his administrative leave and to use his accumulated sick time,” the suit states.

Robinson is seeking compensatory damages for lost wages and lost benefits since being placed on administrative leave, immediate reinstatement, restoration of his sick leave, damages for severe emotional distress and punitive damages “up to and including $1 million for defendants’intentional and malicious violation of plaintiff’s rights.”

Of Robinson, Hilmer said, “He’s still employed by the district — still gets a paycheck every week, still gets generous health and pension benefits and the reality is we had 106 people take a fit-for-duty test. That means you need to perform the functions of your job so when a resident needs you to come out, you can actually do your job.

“We had 106 people take the test. After the first round, four people did not pass. So they used some sick leave up. They lost weight. They got in better shape. They came back. They passed the test. They came back to work. This is the only individual who can’t pass the test and I guess he feels because of that he needs a million dollars.

“And what it is, is a slap in the face to all the other employees who worked really hard and diligently to ensure they would pass the test.”

Hilmer added, “… Sure, we are the first fire district in the state that I’m aware of who has a mandatory fit-for-duty test. But shouldn’t you? I mean shouldn’t it be mandatory you can perform your job functions? So it’s really an absurd lawsuit, in my opinion.”

Both Mecey and Robinson have requested a jury trial to hear their respective suits alleging discrimination.