On February 24, 2026, in Pink Selkin, et al. v. City of Los Angeles, the California Court of Appeals, Second District, Fifth Division held (3 to 0) that trial court properly dismissed the lawsuit be individuals living in the commercial building who were injured in the arson fire. While police on prior occasions observed safety issues in the building, and the fire department received two customer service requests regarding an alleged marijuana grow operation at the property, which were forwarded to the Los Angeles Department of Building and Safety (DBS), there is governmental immunity for the City of Los Angeles under the Government Claims Act under section 815.6, based on its failure to carry out a mandatory duty to abate obvious building and safety code violations. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm57E189vmSMp%2BOS67ay8wFWitKPcCGY4GMdxJS93bY4IOZ1rR%2BpqLAwnmO1MhhKsFw8mOzyCAgo2oZ0ZZPsNViU%3D?utm_medium=email&_hsenc=p2ANqtz-_RDDEsF8WYWrAIUyd_V4g0U3Z9WIVpc4wUXBmJG03XH_ukvjIDW01jf2KlbNNNJy_jYwJIbAOIzBm1vMJk5QjVjhiSog&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

THE COURT HELD:

“This case arises from an arson fire at a commercial building in Los Angeles which killed two individuals. The survivors of the deceased filed several suits against the City. Pink Selkin, who was also trapped in the fire and survived, filed a separate suit, seeking damages for her permanent injuries, including severe burns over more than three-quarters of her body. Plaintiffs' theory of liability is that because City employees had actual knowledge of obvious fire safety hazards, the City had a mandatory duty to ensure that the substandard conditions were addressed, and because the City's knowledge was not in any way related to a building inspection, the inspection immunity statute does not protect the City from liability for its failure to fulfill its mandatory duties…. A DBS [Department of Building and Safety] staff member testified that DBS is not trained in matters concerning unlawful growing of marijuana, however, and therefore DBS forwarded the requests to the police department.^[³^]

Footnote 3: Based upon the appellate briefing and the trial court's minute order, we understand that no party presented evidence that any DBS personnel inspected the property or personally observed any substandard conditions of the property.

However, [Government Code] section 818.6 provides a specific statutory immunity for inspections: ‘A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection . . . for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.’”

Legal lesson learned: There is broad statutory immunity for failure to inspect, or apparently also for failure to follow up. LA’s Department of Building and Safety needs a protocol on handling calls for marijuana growth operations in buildings.

Return to top.

Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson

CA: ARSON FOREST - DROUGHT / “BEETLE” – RE-SENTENCE

On February 17, 2026, in The People v. Derek J. Gutierrez, the California Court of Appeal, Fourth District, Division 1 held (3 to 0) that the trial court must resentence him; he received an enhanced prison term for setting fire to a forest during a declared state of emergency (drought caused beetle infestation filling millions of trees). A jury convicted him of felony arson of forest land and found true a sentencing enhancement allegation that he set the fire "during and within an area" proclaimed by the Governor to be in a state of emergency. (Pen. Code, § 454, subd. (a)(2).) The enhancement elevates the sentencing triad for this type of arson by five, seven, or nine years. However, the prosecutor failed to prove to the jury that the 2015 state of emergency applied to Riverside County when in December 2023 Derek J. Gutierrez was arrested for setting a fire. https://www.casemine.com/judgement/us/6995c147d22bd43f3d89db5b

THE COURT HELD: “On December 9, 2023, around 6:30 a.m., [property owner] Jorge heard ‘yelling and screaming’ outside. He drove up the hill to investigate. He stopped the truck near some bushes about halfway between his house and the mountains. Gutierrez came out of the bushes wearing a backpack. He was about 100 or 200 feet from Jorge. Jorge recognized him because, about a year earlier, he had seen the owner of the property tell Gutierrez to leave the property and never come back. Jorge asked Gutierrez what he was doing, and Gutierrez asked him for a beer. Jorge took a photograph of Gutierrez and told him he had no beer. Gutierrez went back into the bushes, and Jorge could no longer see him. A few minutes later, Jorge saw smoke coming from the bushes. He called the property owner, then 911. While Jorge was on the phone reporting the smoke to the 911 dispatcher, Gutierrez began walking down the hill while ‘yelling, and saying something.’ Firefighters from the Riverside County Fire Department arrived within 15 to 20 minutes. A fire captain noticed smoke as he approached. He saw a person standing near the location of the smoke. The person started walking down the hill through the forest toward Lakeland Village. The captain later identified the person as Gutierrez…. The fire investigator headed back to where he had seen Gutierrez and found him walking on Grand Avenue about a mile from the location of the fire. He arrested him and patted him down for weapons. According to the investigator, Gutierrez physically resisted when he tried to handcuff him. The investigator called for backup and eventually managed to place Gutierrez in the back of his CAL FIRE truck. The fire investigator found two lighters in Gutierrez's pocket and three lighters in his backpack and grocery bag. One of the lighters was a "small butane lighter" that was out of fuel. *** We agree with Gutierrez that this language in the proclamation does not declare a statewide state of emergency, but rather expressly limits the state of emergency to areas and zones of the state that were yet to be identified. Because the proclamation did not extend statewide, the People failed to prove Gutierrez committed arson during and within an area in a state of emergency.”

Legal lesson learned: The defendant remains convicted of arson but must be re-sentenced.

Return to top.

Chap. 2 – Line Of Duty Death / Safety

MD: 3 LODDs – BLDG NOT MARKED / CAD – WK COMP ONLY

On Feb. 20, 2026, in Rachel Butrim, et al. v. Mayor and City Council of Baltimore, U.S. District Court Judge Matthew J. Maddox. United States District Court for the District of Maryland dismissed the lawsuit by the families of the three firefighters who died on January 24, 2022 in a condemned rowhome (no marking; not in CAD) since there was no proof of City’s “deliberate intent of the employer to injure or kill.” Their sole remedy is worker’s comp. This is the second lawsuit filed by the families; first dismissed by Judge Maddox on Dec. 20, 2024, and this case was filed in state court alleging “state-created danger” and then removed by City to federal court. https://cases.justia.com/federal/district-courts/maryland/mddce/1:2025cv00796/578117/19/0.pdf?ts=1771692701

THE COURT HELD: “In the minutes before 6:00 a.m. on January 24, 2022, firefighters from the Third Battalion of the Baltimore City Fire Department (‘BFD’) responded to a fire at 205 South Stricker Street (the ‘Property’), a condemned rowhome in the Mount Clare neighborhood of Baltimore, Maryland…. Six firefighters were ordered to enter the structure, and the house collapsed moments later…. There were no markings or placards placed outside the Property indicating that it was structurally compromised…. After the collapse, a rescue team removed two firefighters from the home; three of the others-Paul Butrim, Kelsey Sadler, and Kenneth Lacayo-died; and the sixth firefighter-John McMaster-sustained serious permanent injuries…. (Paul Butrim, Kelsey Sadler, Kenneth Lacayo, and John McMaster are referred to herein as ‘Plaintiff Firefighters.’)… In 2010, ‘to comply with federal regulators and industry standards,’ as well as ‘in response to the ‘serious known threats associated with unsafe vacant buildings,” the City implemented a program called Code X-Ray to ensure that firefighters would never be ordered into a structurally unsafe condemned property…. Under Code X-Ray, the City marked structurally compromised buildings with reflective placards or a painted red X, which warned firefighters not to enter…. A marking system like Code X-Ray was necessary for the City to secure and maintain grants for municipal services, as new federal funding was ‘increasingly conditioned on adequate safety and mitigation strategies for vacant and condemned properties.’ … According to the Complaint, Plaintiff Firefighters would not have continued working for the City if they knew that it had lied about Code X-Ray’s discontinuation ‘because they valued their lives and families more than their municipal jobs.’ *** But even if all the foregoing acts attributed to the City constituted ‘affirmative acts’ for purposes of a state-created danger claim, Plaintiffs do not allege any facts to support a reasonable inference that any City or BFD official, at any point, acted “with the purpose of” harming Plaintiff Firefighters.”

Legal lesson learned: Tragic set of facts, but worker’s comp appears to be the only remedy of the families of the three firefighters killed in this abandoned rowhome.

Note: See the first case that was dismissed in 2024. Butrim v. Mayor of Balt. (“Butrim I”), https://cases.justia.com/federal/district-courts/maryland/mddce/1:2025cv00796/578117/19/0.pdf?ts=1771692701

Return to top.

Chap. 2 – Line Of Duty Death / Safety

GA: FF LOST FINGERS – CARGO TRAY MFR – PUNITIVE DAM.

On February 12, 2026, in Joshua Tayor Chillous v. Kovatch Mobile Equipment Corporation and Onscene Solutions, LLC, U.S. District Court Judge Lisa Godbey Wood, United States District Court for Southern District of Georgia, Brunswick Division, denied partial summary judgments by OnScene (sued for punitive damages; bolts were too short); and KME for negligence (3 fire engines needing repair in Norfolk, Groton, and Guam, but never inspected this engine). The plaintiff, a civilian firefighter at Kings Bay Naval Base, had two fingers severed on June 16, 2022 when the cargo bay fell off the KME engine. https://cases.justia.com/federal/district-courts/georgia/gasdce/2:2024cv00049/96644/96/0.pdf?ts=1771001361

THE COURT HELD: “Plaintiff filed this personal injury action after he was injured by an allegedly defective sliding cargo tray attached to a firetruck located at Kings Bay Naval Base in St. Mary's, Georgia…. On June 16, 2022, Plaintiff, a civil firefighter employed by the Department of Defense, was attempting to access the cargo tray while gathering supplies for an emergency when the deployed tray fell to the ground, trapping his middle and ring finger and severing both fingers at the first joint…. A Naval Safety Specialist, Dean Merrill, later investigated the incident and reported that the screws of the tray door had failed, the screws being too short for the screw hold…. OnScene designed and built the cargo tray, including the stopping mechanism…. The tray was then affixed to the firetruck by the truck's manufacturer, KME, who then sold the truck to the Department of the Navy (‘the Navy’)…. Plaintiff also points to deposition testimony provided by an OnScene representative that the cargo tray was approved by non-engineers, after alleged tests that did not include calculations of expected force exerted in the field, even though OnScene was aware of the danger of a defective cargo tray at the inception of the product…. Further, OnScene retained no documentation of the tests…. Nor did OnScene retain any design drawings or documents identifying the defective units…. OnScene had identified three trucks with short hardware, Norfolk, Groton, and Guam, omitting the truck at Kings Bay. *** From these facts, a reasonable jury could conclude that KME's failure to inspect the Kings Bay truck or identify the Kings Bay truck as having a defective cargo tray would foreseeably lead to Plaintiff's injury.

Legal lesson learned: The civilian firefighter may now proceed to trial and seek from a jury punitive damages against OnScene and ordinary damages against KME.

Return to top.

Chap. 2 – Line Of Duty Death / Safety

FL: “HALO LAW” – 25 FEET NO APPROACH ZONE - ARRESTS

On January 1, 2025, the new “Halo Law” became effective. On April 12, 2024, Governor Ron DeSantis signed into law the Halo Law, passed under House Bill 184, Impeding, Threatening, or Harassing First Responders. https://www.flhouse.gov/Sections/Bills/billsdetail.aspx?BillId=78745

Read the statute: https://www.flhouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s0184er.DOCX&DocumentType=Bill&BillNumber=184&Session=2024

Section 1

Approaching a first responder with specified intent after a warning

(1) As used in this section, the term:

(a) “First responder” includes a law enforcement officer as defined in s. 943.10(1), a correctional probation officer as defined in s. 943.10(3), a firefighter as defined in s784.07(1), and an emergency medical care provider as defined in s. 784.07(1)

(b) “Harass” means to willfully engage in a course of conduct directed at a first responder which intentionally causes substantial emotional distress in that first responder and serves no legitimate purpose.

(2)(a) It is unlawful for a person, after receiving a verbal warning not to approach from a person he or she knows or reasonably should know is a first responder, who is engaged in the lawful performance of a legal duty, to knowingly and willfully violate such warning and approach or remain within 25 feet of the first responder with the intent to:

1. Impede or interfere with the first responder’s ability to perform such duty;

2. Threaten the first responder with physical harm; or

3. Harass the first responder.

(b) A person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.40

Section 2. This act shall take effect January 1, 2025.

Legal lesson learned: An excellent statute; hopefully similar laws will be enacted in many other state.

Note: Jan. 28, 2026: Man arrested under Florida's Halo Law. https://www.youtube.com/watch?v=US5dFGLzqQo

What Is the Halo Law?

The Halo Law, passed under House Bill 184, was signed into law by Governor Ron DeSantis in April 2024. It establishes a 25-foot no-approach zone around first responders engaged in their official duties. If someone is verbally warned to stay back and continues to approach within this zone, they could face penalties, including fines and potential jail time.

Sheriff Grady Judd of Polk County has been a vocal advocate for the law, emphasizing that it does not restrict the public’s right to record first responders but aims to prevent interference or harassment while they work. https://www.muscalaw.com/blog/understanding-floridas-new-halo-law-and-its-impact-first-amendment-rights

See also: ACLU of Florida: HB 75/SB 184 - Criminalizing Bystanders for Exercising First Amendment Rights. https://www.aclufl.org/legislation/hb-75sb-184-criminalizing-bystanders-exercising-first-amendment-rights/

Return to top.

Chap. 4 – Incident Command, incl. Training, Drones, Communications

OR: BEACHIE CREEK FIRE – HELICOPTERS – GOV IMMUNITY

On February 9, 2026, in Freres Timber, Inc., et al. v. United States of America, United States Court of Appeals for the Ninth Circuit (San Francisco) held (3 to 0; unpublished opinion) the Forest Service incident commanders have discretion regarding how to use helicopters and how to mount an attack to fight the Beachie Creek fire and Forest Service is immune from liability.

The Beachie Creek Fire began Aug. 16, 2020 in the Willamette National Forest, and a “historic windstorm” on Monday, Sept. 7 caused rapid spread west through the Willamette and Mt. Hood National Forests, and adjacent private lands and communities. https://www.fs.usda.gov/r06/willamette/fire/info/beachie-creek-fire

THE COURT HELD: “Freres Timber, Inc. and Freres Lumber Co., Inc. (‘Freres’) appeal the district court's dismissal of their lawsuit asserting Federal Tort Claims Act (‘FTCA’) claims against the United States Forest Service (‘Forest Service’) for its negligent handling of the Beachie Creek fire. Freres also appeals the district court's denial of Freres's request for jurisdictional discovery. We have jurisdiction under 28 U.S.C. § 1291. We affirm. *** [T]he

Forest Service's decisions regarding how to use helicopters and how to mount an attack to fight the Beachie Creek fire were discretionary because they involved ‘an element of judgment or choice.’ … The Forest Service Manual gives broad discretion to the Forest Service to make decisions based on the circumstances of each fire. And Freres does not point to any ‘federal statute, regulation, or policy [that] specifically prescribes a course of action’ that the Forest Service must adhere to when fighting a forest fire…. Therefore, determining a fire suppression plan and utilizing available resources inherently involves discretion.”

Legal lesson learned: Governmental immunity for discretionary decisions by Forest Service incident commanders.

Note: See Forest Service pictures of the fire. https://www.fs.usda.gov/r06/willamette/fire/info/beachie-creek-fire

Return to top.

Chap. 5 – Emergency Vehicle Operation

TX: FF DRIVING FD VEH TO WORK – ACCID. - CITY NO LIAB

On February 10, 2026, in City of Houston v. Sheniqua Henderson, the Court of Appeals of Texas, Fourteenth District held (3 to 0) that the trial court should have dismissed the plaintiff’s lawsuit against the City of Houston, since the firefighter was off duty when the accident occurred when he was driving to his station on September 1, 2022, at 6:19 am. Under Texas state law a city or other governmental unit is only liable for automobile accident when it occurs “within his scope of employment.” https://cases.justia.com/texas/fourteenth-court-of-appeals/2026-14-25-00078-cv.pdf?ts=1770741693

THE COURT HELD: “ On September 1, 2022, Henderson was driving on the service road of the North Sam Houston Parkway in Harris County. City of Houston employee and firefighter Carlos Manuel Pascualli was driving to work in a vehicle owned and provided to Pascualli by Houston in the lane next to Henderson, when Pascualli changed lanes and collided with Henderson's vehicle…. Pascualli provided a supporting affidavit establishing that he was off-duty, not on call, and driving to start his shift at 6:30 am.

On September 1, 2022, at approximately 6:19 am, I was traveling on North Sam Houston East Parkway Service Road, Harris County Texas, when my vehicle collided with Plaintiff's vehicle. I was traveling to Fire Station 99 located in 18580 Chanute Road, Houston, Texas 77032. At the time of the collision on September 1, 2022, I was off duty, not on call and driving to work. At the time of the collision, I was not being directed by the Houston Fire Department, or furthering Houston Fire Department business.

In response, Henderson argued that Pascualli's affidavit was a sham affidavit. She further claimed that Pascualli was in the scope of his employment and that she was entitled to take his deposition. *** Tex. Civ. Prac. & Rem. Code Ann. § 101.021. A governmental unit is only liable for the negligence of its employee, if and when that employee is ‘acting within his scope of employment.’ … Although Henderson argues that she also has a direct negligence claim against Houston, she cites no authority or statute, nor have we found any, other than Section 101.021 that waives Houston's immunity for injuries resulting from the use of a motor-driven vehicle.”

Legal lesson learned: Firefighter was off duty; city cannot be sued.

Return to top.

Chap. 6 – Employment Litigation, incl. Work Comp., Age, Vet Rights

WV: KNEE – DEGENERATIVE – WK COMP /SURGEON’S RPT

On February 27, 2026, in City of Wheeling v. Cody Melsop, the West Virginia Intermediate Court of Appeals held (5 to 0) that the firefighter was entitled to worker comp; his right knee surgery was required because of the December 21, 2023 injury carrying a tote up the stairs, not because of his degenerative knee condition. He was carrying a large tote with about forty pounds of supplies from the laundry room, which is downstairs, and he proceeded up the stairs, when about halfway up the stairs, he felt an excruciating pain in his right knee and immediately thereafter felt a loss of stability and that his knee was weak. An MRI did reveal an irregularity at the posterior horn of the medial meniscus without displaced tearing, but his surgeon who performed the surgery reported the knee injury was as a result of the workplace in jury. The Workers' Compensation Board of Review relied on the report of the surgeon, reversing the Hearing Officer who relied on the work comp retained doctor. https://www.courtswv.gov/sites/default/pubfilesmnt/2026-02/25-ICA-338_MD.pdf

THE COURT HELD: “Wheeling argues that the Board erred in finding the opinion of Dr. Frank to be more credible than that of Dr. Magone based solely upon Dr. Frank's status as Mr. Melsop's treating physician and Dr. Magone only conducting a records review, when Dr. Magone's opinion is more consistent with Mr. Melsop's medical records. Wheeling further argues that Dr. Frank failed to explain the alleged causal relationship between Mr. Melsop's meniscal tear and his compensable injury, while Dr. Magone's conclusion that Mr. Melsop's tear is degenerative in nature is consistent with his medical records. Wheeling also argues that the Board's award of TTD benefits to Mr. Melsop is based upon its mischaracterization of the evidence that Mr. Melsop's work restrictions cannot be met. We disagree…. Upon review, we conclude that the Board was not clearly wrong in finding that the preponderance of the medical evidence establishes that Mr. Melsop sustained a right knee medial meniscal tear in the course of and resulting from his employment.”

Legal lesson learned: Another drawn out battle between a firefighter (with some evidence of a prior degenerative condition) and his employer.

Note: “On April 29, 2025, this Court issued a memorandum decision affirming the Board's order. See City of Wheeling v. Melsop, No. 24-ICA-379, 2025 WL 1249650 (W.Va. Ct. App. April 29, 2025) (memorandum decision). On October 21, 2025, the Supreme Court of Appeals of West Virginia affirmed this Court's decision. See City of Wheeling v. Melsop, No. 25-382, 2025 WL 2962901 (W.Va. Oct. 21, 2025) (memorandum decision).”

Return to top.

Chap. 6 – Employment Litigation, incl. Work Comp., Age, Vet Rights

FL: MILITARY – NO “PREFERANCE” PROMOTION - USERRA

On February 17, 2026, in John Kutz v. Bonita Springs Fire Control and Rescue District, U.S. District Court Judge Sheri Polster Chappel, United States District Court for Middle District of Florida, Fort Myers Division, denied the defendant’s motion to dismiss, and held that there was some evidence in the Complaint that his membership in the uniformed services was “a motivating factor’ in the employer's adverse employment decision to not promote him to deputy chief, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq. (‘USERRA’). The will now proceed to pretrial discovery, but Court also made it clear that while USERRA prevents the denial of promotion on the basis of military service, it does not itself provide a remedy to veterans who are not given preferences in employment decisions. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm1SSbD0G3ZEWJh7YHZP1lKvwyFhreCu4Zs3UIv3EdnBK?utm_medium=email&_hsenc=p2ANqtz-9nqm6pHuxrJA2eqp98a7_eI9fDSv0sKlRywY7jloQaZjhwJh8mlE2JmH7OUYiPvznSiiSBN3erALyoe2ilWNUf5RREvQ&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

THE COURT HELD: “Plaintiff began his employment at Defendant in 2006. In 2015, Plaintiff joined the National Guard. Beginning in 2016, Plaintiff took a leave of absence for an unspecified period to attend basic training. In 2021, Plaintiff deployed for about a year. Upon returning, he re-employed with Defendant as a lieutenant. Along with serving as a lieutenant, Plaintiff volunteered as an acting battalion chief. In doing so, he became eligible for promotion to any full-time battalion chief position…. Sometime later, Plaintiff applied for an open deputy chief position. Three other employees, Captain Kelli Wilson, Lieutenant Giovanni Zamora, and Nic Aracia, also applied…. According to Plaintiff, his qualification of ‘Fire Officer Three’ by the National Fire Protection Association made him more qualified than the two other candidates Defendant interviewed. Chief Dewitt acknowledged Plaintiff ‘may be more qualified’ but indicated Captain Wilson would receive the promotion. Plaintiff told Assistant Chief Brod that Defendant violated the law regarding veteran preference in hiring.

On December 2, 2024, Defendant announced Captain Wilson's promotion to the deputy chief position…. Plaintiff's union refused to advance the grievance because the deputy chief position “was a non-bargaining position,” and the CBA does not cover Plaintiff's alleged violations. *** USERRA prohibits employers from denying uniformed servicemembers “any benefit of employment . . . on the basis of” that service. 38 U.S.C. § 4311(a). To state a claim under USERRA, Plaintiff must allege (1) he qualifies as a member of the protected class of service members; (2) he suffered an adverse employment decision; and (3) his membership in the uniformed services ‘is a motivating factor’ in the employer's adverse employment decision.”

Legal lesson learned: Case will now proceed to pre-trial discovery.

Note: Footnote 8: “Plaintiff alleges in the Second Amended Complaint that Defendant violated USERRA by failing to comply with Fla. Stat. § 295.09(1)(a), which affords veteran preference in hiring…. While this theory is not addressed in the parties' briefs, the Court rejects it as incognizable. See, e.g., Case v. Judd, No. 8:19-CV-607-T-33TGW, 2019 WL 10966204, at 4 (M.D. Fla. Oct. 23, 2019) (“[T]he veteran's preference policies . . . in [Section] 295.09(1)(a) are not ‘benefits of employment' under USERRA. Having made this determination, the Court finds that Case cannot seek relief under 38 U.S.C. § 4311(a) for [defendant's] alleged failure to afford preference to veterans in promotional decisions”); see also Wilborn v. Dep't of Just., 230 F.3d 1383, 2000 WL 194114, at 2 (Fed. Cir. 2000) (noting “while USERRA prevents the denial of promotion on the basis of military service, it does not itself provide a remedy to veterans who are not given preferences in employment decisions”).

Return to top.

Chap. 6 – Employment Litigation, incl. Work Comp., Age, Vet Rights

PA: COLON CANCER – TOBACCO 25YRS / FAMILY – NO LODD

On February 2, 2026, in Estate of Thomas R. Tratthen and Lisa Tratthen v. Department of General Services, the Commonwealth Court of Pennsylvania held (3 to 0) that the family of the firefighter who died of colon cancer on June 4, 2018 was properly denied Line of Duty Death (LODD) benefits under the Emergency and Law Enforcement Personnel Death Benefits Act (Act 101).He worked full time for Dunmore Borough from 2000 to 2007, and part-time paid until June 4, 2018, but had diabetes, 25-year history of smokeless tobacco use, and a family history of colon cancer. https://www.pacourts.us/assets/opinions/Commonwealth/out/1089CD24_2-2-26.pdf?cb=1

THE COURT HELD: “This Court agrees with the Department's reasoning. Given that the standard is whether, but for Decedent's firefighting activities, Decedent's colon cancer would not have occurred, and Petitioners did not present any evidence from which the Department could so conclude, the Department properly denied LODD benefits…. On July 26, 2022, the Department's Bureau of Finance and Risk Management (Bureau) denied Petitioners' LODD benefits claim. On August 17, 2022, Petitioners filed a Notice of Appeal and Request for Hearing. On May 12, 2023, Department Hearing Officer Michael T. Foerster (Hearing Officer Foerster) held a hearing at which the Bureau and Petitioners stipulated to certain facts and documents. In addition, the Bureau entered into evidence additional documents and both sides presented witnesses.

Petitioners presented, inter alia, Tee Guidotti, M.D.'s (Dr. Guidotti) April 3, 2020 report to support Petitioners' Act 101 claim, which had also been produced in support of Decedent's claim for WC benefits. Therein, Dr. Guidotti stated: Given [Decedent's] long service and exposure to International Agency for Research on Cancer (IARC) Group I carcinogens in smoke, soot, diesel emissions, and building materials, I can opine, to a reasonable degree of medical certainty, that his volunteer fire service was, at a minimum, a substantial contributing factor to his diagnosis with cancer. Reproduced Record (R.R.) at 138a (emphasis added)…. The Bureau presented, inter alia, Howard Sandler, M.D.'s (Dr. Sandler) December 3, 2020 report authored on behalf of the insurance carrier defending against Decedent's WC claim. Therein, Dr. Sandler referenced Decedent's diabetes and his 25-year history of smokeless tobacco use, and opined:

[Decedent's] diagnosed colorectal or rectal carcinomas are most likely caused by his underlying personal risk factors as discussed previously[,] such as diet, minimal physical activity, diabetes mellitus, obesity, smoking[,] and alcohol consumption. . . . [Decedent's] family history of various cancers[,] including colon cancer[,] is indeed a risk factor for the development of colorectal/rectal cancer.”

Legal lesson learned: The 25-year history of smokeless tobacco use, and family history, led to denial of LODD benefits.

Return to top.

Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination, Gay Rights

DC: HOSTILE WORK ENVIRON – BY SGT – CASE PROCEED

On February 12, 2026, in Whitney Ward v. District of Columbia, U.S. District Court Judge Reggie B. Walton, United States District Court, District of Columbia, held that the hostile work atmosphere case may proceed based on her allegation [black female in Fire Investigations Unit] of conduct by her direct supervisor, but there was no evidence of retaliation by the fire department after filing an EEOC complaint (she was promoted to Sergeant in October 2024 and transferred to an Engine company).

THE COURT HELD: The plaintiff alleges that Sgt. Ford ‘inappropriate and overly sexual conduct’ continued ‘over the course of years,’ … and that ‘Sgt. Ford comments were accompanied by lewd and suggestive non-verbal traits, such as tone of voice and facial expressions’ that the plaintiff represents ‘made clear that his comments were of a flirtatious or solicitous nature, which made [her] extremely uncomfortable[,]’ … The plaintiff states that she was the only woman on her shift and ‘[Sgt.] Ford repeated objectification and sexualization’ made her ‘go [through] extra lengths and efforts to be taken seriously by her male colleagues.’ … Then, during a shift change on or about June 21, 2023, while the plaintiff was speaking with a friend and colleague about a new tattoo on her leg … Sgt, Ford approached the plaintiff ‘in an aggressive manner and stated, ‘Is that flavored ink they used? What flavor is that?’ … with ‘an expression on his face like he was salivating or hungry to taste something[,]’ … Another colleague intervened, telling Sgt. F that he ‘better back up and leave her alone[.] … The plaintiff reported Sgt. Ford to Capt. Brian Phillips … who ‘called Sgt. Ford into his office and told [him] that his conduct was unacceptable, especially given that Sgt. Ford was ostensibly an [Equal Employment Opportunity (‘EEO')] counselor for the department.’… In response to what had occurred, the plaintiff filed an EEO complaint on January 8, 2024. *** As the Court has already concluded, the plaintiff alleges that Sgt. Ford conduct was both frequent and lasted over the course of years, and that Sgt. Ford. comments and actions were sufficiently humiliating or degrading to support her Title VII hostile work environment claim at this stage of the case.”

Legal lesson learned: Comments by a Supervisor can lead to a hostile work environment lawsuit against the employer.

Return to top.

Chap. 9 – Americans With Disabilities Act

NY: BACK / NECK – CAN’T DO JOB – ADA CASE DISMISSED

On Feb. 26, 2026, in Michael Knapp v. The City of Utica Bureau of Fire, et al., U.S. District Court Judge Anthony Brindisi. United States District Court for the Northern District of New York dismissed the firefighter’s ADA case; he can no longer perform the essential functions of the job. The Court gave him 30 days to file an amended ADA complaint. On May 19, 2023, during a fire department training exercise “involving an obstacle course,” plaintiff claimed he suffered another injury, which further aggravated his pre-existing “back and neck” injuries. He was ordered to take a worker’s comp IME (Independent Medical Exam); Dr. Warren Silverman, who examined plaintiff and determined that his “pain and medical conditions were not the result of work-related injuries.” https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm07xnsMMe9XopEXpzbd8wBfIcwWisDZ8Xdk0vkVeza2z?utm_medium=email&_hsenc=p2ANqtz-9GpH5Yl8KbaQKypiwjwBSc5ZewK71TROtHeH7A0Ky0SFDkHfwzpfrGRkv9wpK-L_sBVpNrip23D5GifO3TaI5YS4qT7w&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

THE COURT HELD: “In sum, plaintiff alleges that UFD has never offered him ‘any accommodation for the several injuries he sustained while on the job’ despite his ‘multiple requests for same.’ Compl. ¶ 49…. Plaintiff alleges that he is ‘out of work,’ ‘receiving no pay,’ and suffering ‘chronic pain’ and ‘mental anguish, depression, and anxiety about his inability to continue to work and the fact that no reasonable accommodations were ever made. Id. ¶¶ 51-53.

*** First, plaintiff has failed to plausibly allege that he suffered a ‘disability’ within the meaning of the Act, dooming his disparate-treatment and reasonable-accommodation claims…. On the merits, defendants argue that plaintiff has failed to state a plausible ADA claim because he has failed to allege that: (a) he is ‘disabled’ within the meaning of the statute; (b) he is ‘qualified to perform the essential functions of the job’; or that (c) he suffered a qualifying ‘adverse employment action.’”

Legal lesson learned: Plaintiff is not a “qualified individual” under the ADA if unable to perform the essential functions of the job.

Note: EEOC - The ADA: Questions and Answers. https://www.eeoc.gov/laws/guidance/ada-questions-and-answers

“Who is a "qualified individual with a disability?"

A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not necessarily conclusive evidence, of the essential functions of the job.”

Return to top.

Chap. 11 – Fair Labor Standards Act

GA: DEATH INVESTIGATORS - NOT EXEMPT “ADMIN.”

On February 10, 2026, in Robert Bumgardne, et al. v. Forensic Pathology Services, P.C, and Carol A. Terry, M.D., the United States Court of Appeals, Eleventh Circuit (Atlanta) held (3 to 0; unpublished decision) that six former forensic death investigators at FPS were entitled to overtime; they did not meet the “administrative” employee exemption. https://cases.justia.com/federal/appellate-courts/ca11/25-10673/25-10673-2026-02-10.pdf?ts=1770737597

THE COURT HELD: “Under the Fair Labor Standards Act (“FLSA”), workers in

administrative roles like ‘legal and regulatory compliance’ aren’t entitled to extra pay for overtime work. Defendants-Appellees Forensic Pathology Services, P.C. (‘FPS’), and its CEO, Dr. Carol A. Terry, contend that FPS’s forensic death investigators, who investigate unexpected or non-natural deaths in Gwinnett County, Georgia, fit this category…. Defendants are mistaken…. Plaintiffs-Appellants, six former forensic death investigators at FPS … helped produce FPS’s core ‘product’ of death-investigation services. FPS and Dr. Terry provide no authority to support their view that if an employee adheres to state law while producing their employer’s core product, that somehow makes their work ‘administrative’ within the meaning of the FLSA. And if that were so, huge swaths of the American workforce would be subject to the FLSA’s ‘administrative’ exemption, meaning the FLSA’s wage protections would not apply to them.”

Legal Lesson Learned: “Administrative” exemption applies to very few in Fire & EMS.

Note: See August 2024, U.S. Department of Labor – Fact Sheet #17C: Exemption for Administrative Employees Under the Fair Labor Standards Act (FLSA). https://www.dol.gov/agencies/whd/fact-sheets/17c-overtime-administrative

“The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and the employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.”

Return to top.

Chap. 11 – Fair Labor Standards Act

DC: FED. EMPLOYEES – OVERTIME ONLY IF “IN WRITING”

On December 12, 2025, in Jillian Lesko v. United States, the United States Court of Appeals, Federal Circuit, Washington, D.C., held (7 to 4; en banc decision by all judges on the Court) that Ms. Lesko. a registered nurse for the Indian Health Service (IHS) for eight months during the COVID-19 pandemic, who worked very long days, was not entitled to overtime pay since Office of Personnel Management regulations requires that overtime be first ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated. 5 C.F.R. § 550.111(c) (hereafter, overtime regulation). https://www.cafc.uscourts.gov/opinions-orders/23-1823.OPINION.12-12-2025_2618923.pdf

THE COURT HELD: Ms. Lesko worked as a registered nurse for the Indian Health Service (IHS) for eight months during the COVID-19 pandemic…. During this time, she alleges nurses ‘were stretched to their limits’ and ‘[s]upervisors and managers regularly and routinely required nurses to stay after hours and work without compensation to meet the patient demands.’ J.A. 82 ¶ 42. After resigning from IHS, Ms. Lesko filed a complaint for a class action suit, which she amended after the Government moved to dismiss it…. The Court of Federal Claims granted the motion and dismissed all counts…. In relevant part, the statute and regulation governing overtime pay for federal employees have existed for eighty years. On July 4, 1945—four days after Congress enacted FEPA [Federal Employees Pay Act of 1945]—the Civil Service Commission promulgated regulations, approved by the President, to implement the Act…. The present regulatory language implementing the writing requirement, now codified at 5 C.F.R. § 550.111(c), has undergone additional amendments since recodification but, as relevant to this appeal, it contains the same operative language as the originally promulgated regulation:

Overtime work in excess of any included in a regularly scheduled administrative workweek may be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated. 5 C.F.R. § 550.111(c) (hereafter, overtime regulation).”

Legal lesson learned: The Office of Personnel Management regulations control; but it seems unfair that the Indian Health Service (or any other federal agency) would allow work beyond 80 hours, but then not pay time and half.

Note: Four Dissenting Judges: STOLL, Circuit Judge, dissenting, with whom Circuit

Judges REYNA , CUNNINGHAM, and S TARK join.

“In sum, it is up to Congress, not OPM, to impose a writing requirement.”

Return to top.

Chap. 13 – EMS, incl. Community Paramedicine, COVID-19

NY: EMT LICENSE REVOKED – 26 PATIENTS ENDANGERED

On February 26, 2026, in In The Matter of Andrew P. DeWolf v. James McDonald, Commissioner of Health, et al., the Supreme Court of New York, Third Department held (5 to 0) that the revocation and $26,000 fine is supported by the administrative record (May 2024 and December 2024 final orders) and the appeal is moot. https://law.justia.com/cases/new-york/appellate-division-third-department/2026/cv-24-1117-cv-25-0151.html

THE COURT HELD: “In June 2021, respondent Department of Health (hereinafter DOH) served petitioner with a notice of hearing and statement of charges, alleging that, between 2018 and 2019, petitioner endangered the lives of 26 patients in his care as an emergency medical technician (hereinafter EMT). ^[¹^]

Footnote 1: DOH charged petitioner with 134 violations of basic and advanced life support treatment protocols; namely, that he failed to regularly monitor patients' vital signs, failed to follow instructions from supervising physicians and overdosed patients on various controlled substances.

Petitioner contested the charges and, after an evidentiary hearing, an Administrative Law Judge (hereinafter ALJ) issued a report and recommendation that the charges be sustained, petitioner's EMT certification be revoked and he be fined $26,000…. Subsequently, in July 2024, respondent Commissioner of Health issued a final determination which adopted the ALJ's report and recommendation.”

Legal lesson learned: EMTs must follow their protocol on monitoring patients’ vital signs and also follow medical directions.

Return to top.

Chap. 13 – EMS, incl. Community Paramedicine, COVID-1

TX: PATIENT FELL OFF COT – P’S EXPERT IS A MEDIC

On February 26, 2026, in Medcare EMS v. Carolina Flores, the Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg, held (3 to 0) that the lawsuit may proceed since the plaintiff timely filed an expert’s report from a paramedic within the 120 days required under the Texas Medical Liability Act. Trial court denied Medcare’s motion to dismiss, arguing the expert had to be a physician. https://cases.justia.com/texas/thirteenth-court-of-appeals/2026-13-25-00099-cv.pdf?ts=1772125541

THE COURT HELD: “It is undisputed that Everlove was qualified to opine as to the standard of care applicable to MedCare…. On December 9, 2021, Flores called emergency services after experiencing abdominal pain. A MedCare emergency medical technician (EMT) and paramedic arrived at her apartment and assessed her. Flores was subsequently placed and strapped onto a stretcher, which was wheeled from her apartment to the parking lot of Flores's apartment complex. Flores was left in the stretcher under the paramedic's supervision while the EMT moved the ambulance closer to Flores's location. Flores's stretcher ultimately tipped over, and she sustained injuries from the fall. On December 20, 2022, Flores sent MedCare a pre-suit letter by certified mail which included an expert report authored by registered paramedic John B. Everlove, as well as his curriculum vitae. In his report, Everlove described the standard of care applicable to MedCare and deviations from that standard by MedCare personnel concerning the ‘care, treatment, and management of . . . Flores.’ ***

It is undisputed that Everlove was qualified to opine as to the standard of care applicable to MedCare. See Tex. Civ. Prac. & Rem. Code § 74.402. Moreover, Everlove opined in his report that MedCare personnel deviated from that standard concerning their "care, treatment, and management of . . . Flores." In other words, Everlove opined that MedCare was negligent. Accordingly, we hold that Everlove's report constitutes a statement of opinion by an individual with expertise indicating that the claim asserted by Flores against MedCare has merit.”

Legal lesson learned: This is yet another case of a patient falling off a cot and being injured.

Return to top.

Chap. 13 – EMS, incl. Community Paramedicine, COVID-19

MA: 8-MO CHILD – 2 EMTs DIDN’T CANCEL ALS – NO CASE

On February 6, 2026, in Matthew Lincoff and Taylor Lincoff, co-personal representatives of the estate of Landon Lincoff v. Town of Topsfield, et al., U.S. District Court Judge Brian E. Murphy,

United States District Court for the District of Massachusetts granted the defendants motion to dismiss federal case; there no proof that the Town’s policy in 2020 to handle their own EMS transports, with mutual aid ALS back up, led to a practice of cancelling ALS mutual aid. In the early hours of June 5, 2021, eight-month-old Landon stopped breathing at his home after having been sick with a cough and respiratory illness in the preceding days. Two Topsfield police officers arrived at the residence around 2:11 a.m. and found Landon pulseless and not breathing. At 2:12 am, off duty TDF paramedic Jonathan Hallinan heard the call at home, requested mutual aid and drove to the fire station, while two EMT-Basics at the station responded in ambulance and arrived at 2:16 a.m., and departed for Beverly Hospital at 2:19 pm with a police escort, along with Mrs. Lincoff on board. At 2:22 the ambulance picked up Paramedic Hallinan and at 2:23 a.m., picked up Lt. Paramedic John Boyle and went to hospital. The mutual aid ambulance from Northeast Regional Ambulance Service (‘NRAS’) was not needed – but advised they would “be coming down [Route] 97 also, we will intercept you as easy as possible. If you do not need to stop, continue on, we will stop if you need to.” https://cases.justia.com/federal/district-courts/massachusetts/madce/1:2023cv12125/261357/75/0.pdf?ts=1770465752

THE COURT HELD: “Since 2020, TFD has been the primary transport service, though the Town maintains agreements with other emergency first responder services to provide backup emergency services…. Backup emergency services are available via an ‘intercept,’ which refers to any ambulance or individual dispatched for the purpose of supplementing staff…. One such service is Northeast Regional Ambulance Service (‘NRAS’)…. The Town claims to have decided to make TFD the primary transportation service because when NRAS was the primary transport provider, NRAS's delayed response time would result in TFD personnel arriving to provide services but then needing to wait for NRAS to arrive to make the transport….The Town experienced additional difficulties relying on NRAS's staffing of ambulances, including sending BLS services instead of ALS…. Around the same time, Collins-Brown expressed a desire to ensure that TFD paramedics gain more experience in the field, to provide better and faster care to Topsfield residents. *** The Lincoffs contend that this preference became a policy or practice of cancelling NRAS intercepts to allow the TFD paramedics to gain more experience…. However, none of the TFD personnel involved in this case were aware of a policy or practice of cancelling intercepts for any reason other than because it was deemed unnecessary for patient care. *** Based on the undisputed record before the Court, Boyle's actions cannot be said to have been deliberately indifferent to a substantial risk of serious harm.”

Legal lesson learned: There was no evidence of any of the EMS being “deliberate indifferent” to the needs of the patient.

Return to top.

Chap. 13 – EMS, incl. Community Paramedicine, COVID-19

NY: COVID – FF CLAIMS VAC FETAL CELLS – CASE PROCEED

On February 2, 2026, in Salvatore Maita v. City of New York, U.S. Magistrate Judge Vera M. Scanlon, United States District Court for Eastern District of New York, issued a Report and Recommendation that the lawsuit proceed to pre-trial discovery. FDNY on November 1, 2021 he was placed on leave without pay; his request for accommodation because it was not based on his religion – Catholic – but on his claim the vaccination was “produced researched, manufactured, and/or tested using aborted fetal cell lines.” He was fired on February 11, 2022. In 2023 he requested reinstatement, but it was denied on April 17, 2023 when he refused to sign a waiver waiving his right to all backpay from the time he was placed on Leave Without Pay. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm1LICE259A5ulYHxnw3lcJtDWEaUq57rExGHQXd3hU8EgaPHTdGS%2FRk5aoRP0crRKmeZauTqc6nD5gh3xIKTEMg%3D?utm_medium=email&_hsenc=p2ANqtz-9zYvhQr5QF-kHvOgqVEwwEjeDJW6aa7G89aGppWtTq6GnIfdSTK1neKuS-jEFNuUA2B3hULaVGvwBQIPV_0qoJel6h4w&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

THE COURT HELD: “[Plaintiff claims] that Defendant granted approximately 105 religious and medical accommodations to other employees of the FDNY, including ‘active-duty firefighters,’ as of January 11, 2022, including at least thirty medical accommodations and at least six religious accommodations, and permitted them ‘to submit to weekly PCR testing’ in lieu of receiving the COVID-19 vaccine, such that providing this accommodation was not an undue hardship, particularly given that only the initial dose was required, that ‘[t]he COVID-19 vaccine does not cause prevention or [sic] transmission of the COVID-19 virus,’ and that ‘vaccinated and unvaccinated people infected with COVID-19’ had ‘similar viral loads.’ … Employees of the New York City Police Department were similarly accommodated…. *** Once Plaintiff has pleaded his claims, and the possible affirmative defenses are not evident on the face of the amended complaint, the claims may move forward. Defendant may, indeed, have valid defenses, but they require the presentation of facts beyond the amended complaint. For example, Plaintiff bases his claims on a claim that aborted fetal cell lines were used in the production, research, manufacture and/or testing of the COVID-19 vaccine. This is posited as a fact, not a religious belief in and of itself such that Plaintiff will have to prove such alleged fact at a later stage of the proceedings. This allegation cannot be resolved on the current record. By way of another factual dispute that cannot be resolved on the face of the amended complaint or as a matter of law is the defense of undue hardship. At this juncture, determination of whether accommodating Plaintiff would have been an undue hardship for Defendant would be premature.”

Legal lesson learned: Case will now proceed to pre-trial discovery; many COVID cases against FDNY have resulted in dismissal of the cases.

Return to top.

Chap. 14 – Physical & Medical Fitness, incl. Heart Health [also filed, Chap. 16]

FL: FF FIRED – ANNUAL PHYSICAL – TRIED AVOID TB TEST

On February 6, 2026, in Nathaniel Griffin v. City of South Pasadena and The St. Petersburg International Association of Fire Fighters, Local 747, U.S. District Court Judge William F. Jung, United States District Court for the Middle District of Florida, Tampa Division, dismissed the lawsuit against both the City and the Local. Firefighter, paramedic Griffin, on August 12, 2022 underwent his annual physical examination at Life Scan Wellness Center; he completed most of the medical examination without issue, except for the TB test, when asked the Life Scan technician to skip the TB test but fraudulently report that a test had been done. The Fire Chief gave the plaintiff an opportunity to resigned; he refused and was fired on September 13, 2022. https://cases.justia.com/federal/district-courts/florida/flmdce/8:2025cv02787/448658/35/0.pdf

THE COURT HELD: “When evaluating the results of the physical examination, the CBA requires the physician to follow the national guidelines set forth in the National Fire Protection Association (‘NFPA’) 1582, Chapter 9…. As relevant to this lawsuit, the annual physical examination includes tuberculosis (‘TB’) testing, which may require an additional chest X-ray if the TB test comes back positive…. Plaintiff alleges that at some unspecified point during the CBA negotiations, he objected to the CBA agreement due ‘to the breath [sic] and intrusive nature of the mandatory medical examinations.’ … Plaintiff further alleges that he continually voiced his objection to the CBA, even after the agreement was adopted on August 28, 2019. *** Based on a careful review of the pleadings, the Court grants the City's motion to dismiss. As discussed below, Plaintiff has failed to state a claim under the ADA, GINA, Title VII, and Section 1983…. Here, even when accepting the meager factual allegations as true, Plaintiff fails to allege any Fourth Amendment violation since the Complaint fails to allege that any private interests outweigh the City's interest in public safety. The Complaint vaguely asserts that the August 2022 physical examination violated ‘Plaintiff's personal privacy rights’ due to the exam's ‘breadth and intrusive nature.’ … But Plaintiff never specifies what aspect of the physical examination was so ‘intrusiv’ and overbroad that it violated Plaintiff's diminished expectation of privacy due to his job as a firefighter and paramedic. See Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 671 (1989) (‘[I]t is plain that certain forms of public employment may diminish privacy expectations even with respect to . . . personal searches.’); Scott, 717 F.3d at 869 (‘Another category-a natural extension of the Supreme Court's holding in Von Raab-encompasses . . . firefighters.’); Williams v. Bd. of Regents of Univ. Sys. of Georgia, No. CV 120-100, 2021 WL 2827293, at 7 (S.D. Ga. July 7, 2021) (dismissing the plaintiff's Fourth Amendment search and seizure claim, as her employer's drug test fell under the special needs exception). ** Local 747’s motion seeks dismissal of the single ADA discrimination claim

in Count IX. Local 747 asserts that the ADA claim is time-barred since Plaintiff ‘failed to file a charge against the Local challenging the medical exam requirement at issue within 300 days after Local 747 entered into the CBA on August 28, 2019.’ … Plaintiff’s discrimination charge must have been filed with the FCHR or the EEOC within 300 days—i.e., by June 23, 2020.”

Legal lesson learned: Very unusual to have a firefighter complain about annual physical.

Note: In Footnote 7, the Court wrote:

“Firefighters reside in close quarters. They must be strong and hale. They must be able to provide emergency lifesaving techniques in difficult circumstances to people of varying health. See Cremeens v. City of Montgomery, Ala., 427 Fed.Appx. 855, 858 (11th Cir. 2011) (‘The physical fitness requirements are directly related to a Fire Investigator's duty to fight fires, and they are necessary to ensure that Fire Investigators are able to perform that function when called upon to do so.).”

Return to top.

Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy

TX: MEDIC SUICIDE – CTY SUBPOENAS PSYCH RECORDS

On February 24, 2026, in In Re Fort Bend County, et al. v. Joshua Heiliger, individually and on behalf of the estate of Lauren Smith, deceased, et al., the Court of Appeals of Texas, Fifteenth District held (3 to 0) that the trial court had no jurisdiction in this contested worker’s compensation case about dispute of Lauren’s medical records. The worker’s comp Administrative Law Judge should decide of the County’s subpoena can be enforced for the medical records from Dr. John Marcellus, the doctor who prescribed Lauren's ADHD medication, her hypertension along with her complaints about stress. His lawsuit is therefore ordered dismissed.

https://cases.justia.com/texas/fifteenth-court-of-appeals/2026-15-25-00102-cv.pdf?ts=1771951104

THE COURT HELD: “Heiliger … filed his claim with the Division [of Worker’s Compensation], seeking a finding that he and his daughter are entitled to workers' compensation benefits because his wife died as a result of her work, a contention her employer contests…. In this case, that means if Heiliger objected to the amended subpoena or the subpoenaed party did not comply, then the ALJ or Fort Bend County - not Heiliger- would have the option to seek an order compelling compliance from a district court in Travis County or Harris County. Instead, Heiliger took matters into his own hands and filed a suit in Harris County to enjoin the subpoena instead of waiting for the administrative process to play out…. We first address whether the trial court has jurisdiction over Heiliger's suit and conclude it does not. "The Division of Workers' Compensation administers the [workers' compensation] system and has exclusive jurisdiction to determine compensation entitlement and to award any benefits." University of Tex. Rio Grande Valley v. Oteka, 715 S.W.3d 734, 736 (Tex. 2025).

Legal lesson learned: The worker’s comp. Hearing Officer will now decide if the deceased’s medical records must be disclosed and then hold a hearing on the worker’s comp claim.

Return to top.

Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy

OR: DISPATCHER – 20 YRS – 2 OF 3 MDs REPORT NO PTSD

On Feb. 11, 2026, in In The Matter Of The Compensation Of Camille Smicz v. Deschutes County 911 Service District, the Court of Appeals of Oregon held (3 to 0) that the Workers' Compensation Board’s determination was supported by substantial evidence; the claimant failed to establish by a preponderance of persuasive medical evidence that she met the criteria for PTSD. The Administrative Law Judge after a hearing denied her claim, and Board found that the opinion of Dr. Barran (psychologist who interviewed her for 3 hours) "was not based on a complete or accurate history" because he did not review the reports of the two other diagnosing medical doctors (psychiatrist and a psychologist) who concluded she does suffer from PTSD. https://www.casemine.com/judgement/us/698dd4328a508cf645e20167

THE COURT HELD: “Claimant worked as a 9-1-1 dispatcher for 20 years. Over her 20 years as a dispatcher, claimant assisted by phone with many alarming and disturbing situations, and she eventually asserted that the ‘continued exposure to trauma and critical incidents’ led to an occupational disease of ‘PTSD, secondary trauma, [and] cumulative stress disorder.’ However, the combined medical history that all three testifying experts relied upon also indicated significant non-work-related stressors that claimant experienced and that had led to her receiving other mental health diagnoses in the past—including that claimant's son had been in residential facilities due to developmental disabilities and violence toward claimant, such as holding a belt across claim- ant's neck while she was sleeping; that claimant recently went through a divorce that required a restraining order; and that claimant had severe health complications from an unsuccessful surgery. *** The three experts differed in their assessment of claimant. Drs. Wicher (a psychologist) and Telew (a psychiatrist) conducted medical evaluations at the request of claimant's employer and could not determine that claimant suffered from PTSD. Wicher concluded that her symptoms better fit the criteria for an adjustment disorder, and upon reviewing her previous diagnoses, concluded that her major depressive disorder and unspecified anxiety disorder developed during the course of her work, ‘but not largely due to the experiences at work.’ Telew similarly opined that ‘[i]t is evident that she does not have sufficient symptomatology to make a diagnosis of PTSD.’ His analysis included indications that she was exaggerating symptoms, did not have a problem discussing events she identified as traumatic, and did not avoid or even evidence a reaction to stimuli that she had identified as causing panic attacks.”

Legal lesson learned: Battle of the experts; two experts found no work created PTSD.

Return to top.

Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing

FL: B/C FIRED – REFUSED TO ISSUE COVID REPRIMANDS

On February 13, 2026, in Stephen M. Davis v. Orange County, the United States Court of Appeals for the Eleventh Circuit (Atlanta) held (3 to 0; unpublished decision) that his lawsuit was properly dismissed. Davis worked for the department for 15 years and advanced through the ranks to battalion chief. In 2021, Davis was terminated after he did not reprimand department personnel who refused the Orange County’s mandated COVID-19 vaccine. Davis has failed to allege an” objectively reasonable” belief that issuing the written reprimands to firefighters who hadn’t timely provided a vaccination certificate or exemption request, because the union had negotiated an MOU with the County that COVID reprimands could not be considered or used in a union member’s performance evaluation, and that no further disciplinary action could be taken against employees who didn’t file a timely vaccination certificate or exemption request. https://www.govinfo.gov/content/pkg/USCOURTS-ca11-25-11434/pdf/USCOURTS-ca11-25-11434-0.pdf

THE COURT HELD: “It is undisputed that Davis’s termination was an adverse employment action caused by his refusal to issue reprimands for violations of the department’s COVID-19 policy, so this case comes down to whether that refusal was protected activity…. Here, Davis asserts that he believed the reprimands he was ordered to issue violated Title VII’s anti-discrimination provision. That belief wasn’t objectively reasonable…. The memorandum of understanding between the union representing Orange County firefighters and the county stated that the reprimands could not be considered or used in a union member’s performance

evaluation, and that no further disciplinary action could be taken against employees who didn’t file a timely vaccination certificate or exemption request. In other words, the reprimands were toothless—they themselves didn’t rise to the level of an adverse employment action, and a future adverse employment action couldn’t be based on them…. In other words, the reprimands were toothless—they themselves didn’t rise to the level of an adverse employment action, and a future adverse employment action couldn’t be based on them. So Davis has failed to allege an objectively reasonable belief that a written reprimand—that by its own terms could

not impact the terms or conditions of a firefighter’s employment— would disadvantage, harm, or make “worse off” his subordinates’ employment in any way.”

Legal lesson learned: Davis should have consulted an employment layer before refusing to issue the COVID reprimands.

Note: See June 15, 2024 article: “BREAKING: Former Orange County Fire Rescue battalion chief announces candidacy for County Commission District 1. https://www.orangeobserver.com/news/2024/jun/15/breaking-former-orange-county-fire-rescue-battalion-chief-announces-candidacy-for-county-commission-district-1/

“Stephen Davis, a former Orange County Fire Rescue battalion chief has filed as a qualified write-in candidate for the District 1 Orange County Commission seat. Davis joins incumbent Nicole Wilson and challenger Austin Arthur in the race. Davis’ candidacy also moves the race from November general election up to the primary ballot, Aug. 20. If one candidate gets 50% plus one vote in the primary, that person wins the seat, Orange County Supervisor of Elections Public Information Officer Christopher Heath said. Davis worked for the department for 15 years and advanced through the ranks to battalion chief. In 2021, Davis was terminated after he did not reprimand department personnel who refused the Orange County’s mandated COVID-19 vaccine. He later filed a lawsuit against the county for wrongful termination and also has written a book about his experience. ‘History has now proven Orange County was wrong to mandate the so-called vaccine,’ Davis said. ‘It did not stop the spread. Worse, Commissioner Nicole Wilson ridiculed and showed disdain for the firefighters who refused it. That’s why I’m running — to make sure this issue does not go away.’”

Return to top.

Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing

TX: FEMALE LT – 5-DAY & 10-DAY SUSP - LEAVING STATION

On February 12, 2026, in City of Pharr v. Lt. Krystle Guerra, the Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg, held that the City of Pharr Fire & Police Civil Service Commission upheld her two separate suspensions after hearings, and the trial court should have dismissed her lawsuit. https://cases.justia.com/texas/thirteenth-court-of-appeals/2026-13-24-00112-cv.pdf?ts=1770913029

THE COURT HELD: “On June 22, 2021, Guerra received written notice that then-Fire Chief Leonardo Perez was investigating allegations that she violated Department policies on multiple occasions. The allegations largely centered on several reports that, without prior authorization, Guerra repeatedly left her assigned fire station and district to conduct personal business or socialize at other stations while on duty. During a disciplinary hearing before Chief Perez, Guerra did not dispute those allegations; instead, she generally claimed that it was common for other Department personnel to run personal errands during work hours. Chief Perez invited Guerra to provide examples to support her contention. In a follow-up email to Chief Perez, she accused him of running personal errands while on duty and cited specific instances of him allegedly doing so. After considering Guerra's response, Chief Perez found the allegations against her to be true and suspended Guerra for five days without pay. *** In January 2022, Chief Perez's successor, Pilar Rodriguez, sent Guerra written notice of contemplated discipline concerning two incidents. Guerra was accused of ‘exchanging time’ with another lieutenant in violation of a supervisor's prior directive not to do so. She was also accused of leaving her post for two hours without obtaining prior authorization from her immediate supervisor or notifying others above her in the chain of command. *** Guerra alleged in her petition that her protected activities consisted of ‘reporting misbehavior by a male firefighter and [Chief Perez]’ and that her transfer to another station and suspensions constituted ‘retaliation’ for making these reports. However, as she described in her own petition, the January 2021 report concerned a subordinate's ‘work performance issues." For example, Guerra reported that this employee's job performance was "unsatisfactory’ because of his poor interpersonal skills. Nowhere in the report did Guerra state that the employee had engaged in any kind of discriminatory behavior…. In short, Guerra's pleadings and evidence conclusively establish that her retaliation claims are based on activities that are not protected by Chapter 21.”

Legal lesson learned: Leaving a station without permission, particularly when you are the OIC, can lead to discipline.

Return to top.

Chap. 17 – Arbitration, incl. Mediation, Labor Relations

SC: UNION PRES. FIRED – SPOKE CITY COUNCIL /1^st AMEND

On February 3, 2026, in Gregory Cargill v. The City of Greenville, et al., U.S. District Court Judge Jacquelyn D. Austin, United States District Court for the District of South Carolina, Greenville Division. Denied the City’s motion to dismiss. Firefighter Cargill was President of IAFF Local 2261 and requested a meeting with the Fire Chief; on August 28, 2024, Chief Horton responded by email stating the City would not engage in collective bargaining with Local 2261 but that he would meet with Plaintiff “Chief to firefighter,” and he directed Plaintiff to go through the chain of command to set up the meeting or for any other communications. Cargill attended City Council meeting on September 9, 2024, spoke with member of the Council, on October 12, 2024 he sent letter on Union Letterhead to City Manager about poor morale, and then was fired by the Fire Chief on October 20, 2024. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmxCPiZizVlc11JYA3odTB4IhzrCNgoXQd5cis%2BDwnvItMWVDGFMSfq0NQT9Gs0Nt1TNd1VW0h9sJNC6uT%2FjNAHc%3D?utm_medium=email&_hsenc=p2ANqtz-8-aEXaYfaNma4DTW9HUN_1FUQQoclWpkG9e_9BTRsreHlU-cWJ1LgKYyHosOTXLG__w-panONGFSrnN_jSAOz_10UwNA&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

THE COURT HELD: “In particular, under the balancing test developed by the Supreme Court in Pickering and Connick, “the First Amendment does not protect public employees when their speech interests are outweighed by the government's interest in providing efficient and effective services to the public.” Lawson v. Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016).

Accordingly, the Court concludes that Plaintiff has adequately pled that his speech was as a private citizen on a matter of public concern. See Liverman, 844 F.3d at 410 (holding speech was on a matter of public concern when the matter ‘addressed was of more than personal import’).”

Legal lesson learned: The Union President was communicating on matters of a public concern.

Return to top.

Chap. 18 – Legislation, incl. Public Records

CT: NEW DROP LAW – NOT FF UNDER 55 – CASE PROCEED

On February 4, 2026, in David Dobbs, IAFF Local 834, et al. v. Brian Vahey, Chair of the State of Connecticut Municipal Employees Retirement Commission, et al., U.S. District Court Judge

Sarala V. Nagala, United States United States District Court for the District of Connecticut, denied the Commission’s motion to dismiss (and also Bridgeport firefighters and Union’s motion for preliminary injunction); case will now proceed with pre-trial discovery. The Bridgeport firefighters and Local 834 argue that it is age discrimination under the new DROP program to allow some public safety employees (including Plaintiffs) to be eligible to retire—for instance, if they have completed twenty-five years of service—but ineligible to enter the DROP, because they are not yet age 55 and have not completed thirty years of service. https://ecf.ctd.uscourts.gov/cgi-bin/show_public_doc?2025cv0824-74

THE COURT HELD: “Effective July 1, 2025, certain members of the Connecticut Municipal Employees’ Retirement System who are otherwise eligible to retire can elect to defer their retirement allowance, while continuing their employment for up to five years, under a Deferred Retirement Option Plan (‘DROP’)…. Under the statute adopted by the Connecticut legislature, the Connecticut State Employees Retirement Commission ‘may create’ a DROP, which ‘shall include a fixed period of time for member participation, not to exceed five years, and a specified rate of interest credit for member accounts.” Conn. Gen. Stat. § 7-459b(b)…. As relevant here, retirement-eligible firefighters may join the DROP at age 57 with five years of continuous service, at age 55 with 25 years of aggregate service, or with 30 years of aggregate service regardless of age. The Individual Plaintiffs, firefighters with the Bridgeport Fire Department,1 are eligible for retirement allowances by virtue of their tenure with the Fire Department, but are all under age 55, and therefore ineligible to join the DROP. *** First, the Court notes that Defendants’ argument about the rationality of the age classification—that it incentivizes skilled employees to delay their retirement beyond the date they are first eligible to collect pension benefits, thereby extending the period during which the employees contribute to the plan and delaying the time at which they begin to receive payments— are not in fact arguments about the rationality of the challenged age classification at all: they are simply arguments about the rationality of adopting a DROP as a whole…. (‘[The DROP] is also intended to encourage . . . skilled employees to stick around and delay their retirement’). Defendants do not meaningfully explain why this reasoning would apply differently to retirement-eligible firefighters who are under age 55 than to those who are age 55 or older. The desire to keep skilled employees working for a longer period and to delay paying benefits applies to all employees, regardless of age, and therefore does not squarely address the age-55 requirement Plaintiffs challenge here.”

Legal lesson learned: The case will now proceed with pre-trial discovery; the Commission will then likely file a motion for summary judgment that addresses the cost reasons for keeping eligibility at age 55 or older.

Note: See Ohio DROP. https://www.op-f.org/files/mgdrop.pdf

“If you are eligible for a normal service retirement you can enter the DROP

program by delaying retirement and continuing to work as a police officer or

firefighter. For those who were OP&F members on or before July 1, 2013,

normal service retirement eligibility is at least 48 years of age with at least 25 years

of service. For members hired into an OP&F-covered position after July 1, 2013,

normal service retirement is age 52 with at least 25 years of service.”

Return to top.