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SEPTEMBER 2026 – FIRE & EMS LAW NEWSLETTER
[NEWSLETTER IS NOT PROVIDING LEGAL ADVICE.]
Lawrence T. Bennett, Esq.
Professor-Educator Emeritus
Former Program Chair, Fire Science & Emergency Management
Cell 513-470-2744
27 RECENT CASE REVIEWS
UPDATING TEXTBOOK: FIRE SERVICE LAW (Second Edition; 2017)
(ISBN 978-1-4786-3397-6); Waveland Press: waveland.com/browse.php?t=708
Eight years of case reviews posted: National Fire Academy / NETC Library Index and Catalog: usfa.bibliovation.com/app/work/255508
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
Chap. 2 – Line Of Duty Death / Safety
Chap. 3 – Homeland Security, incl. Active Shooter, Cybersecurity, Immigration
Chap. 4 – Incident Command, incl. Training, Drones, Communications
Chap. 5 – Emergency Vehicle Operations
Chap. 6 – Employment Litigation, incl. Work Comp., Age, Vet Rights
Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination, Gay Rights
Chap. 8 – Race / National Origin Discrimination
Chap. 9 – Americans With Disabilities Act
Chap. 10 – Family Medical Leave Act
Chap. 11 – Fair Labor Standards Act
Chap. 12 – Drug-Free Workplace, inc. Recovery
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
Chap. 14 – Physical & Medical Fitness, incl. Heart Health
Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
Chap. 17 – Arbitration, incl. Mediation, Labor Relations
Chap. 18 – Legislation, incl. Public Records
________________________________________________________________________
FULL CASE REVIEWS
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
KY: ARSON / WANTON ENDANGERMENT – TWO SEP CRIMES – 32 YRS
On August 20, 2026, in Joseph Gordon Young v. Commonwealth of Kentucky, the Kentucky Supreme Court held (6 to 0) that there was no double jeopardy violation; starting fire on front porch of a house where three people were inside is both arson in first degree and three-counts of wanton endangerment; he must now serve 32 years in prison (per jury recommendation, 22 years for arson, and 10 years for wanton endangerment). http://opinions.kycourts.net/sc/2025-SC-0487-MR.pdf
THE COURT WROTE:
“Even a cursory reading of these two statutes reveals the elements of the two crimes are quite different. Starting a fire or causing an explosion with the intent to damage or destroy a building is required to convict of arson in the first degree but is not necessary to convict of wanton endangerment in the first degree. Engaging in conduct manifesting an extreme indifference to the value of human life is mandatory for a conviction of wanton endangerment in the first degree, but such conduct is irrelevant to an offense of arson in the first degree, as the building does not actually have to be inhabited or occupied at the time the fire is set, so long as the defendant had a reasonable belief a person was present. In addition, arson in the first degree is a crime against property while wanton endangerment in the first degree is in the nature of a crime against a person. Although there may be an overlap of proof covering the two offenses in this case, that does not, in and of itself, constitute a double jeopardy violation.”
Legal lesson learned: Not double jeopardy when defendant’s conduct violates two different criminal statutes.
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
IA: ARSONIST CALLED 911 – PROVE “INTENT” BY ACTIONS
On August 19, 2026, in State of Iowa v. Diamond Unique Campbell, the Court of Appeals of Iowa held (3 to 0) that jury properly found defendant guilty of first-degree arson, having lit two fires in front of a duplex. She called 911 and falsely claimed reporting a fire at the duplex with people inside the home screaming. She appeals claiming she was only “reckless” with no intent to destroy or damage the property; the jury was properly instructed that person intends the natural results of her act. https://cases.justia.com/iowa/court-of-appeals/2026-25-0805.pdf?ts=1787163745
THE COURT WROTE:
“After setting and extinguishing the initial fire near Harris’s front stoop, Campbell got in her car, drove down the alley, and then returned to set the fire by Keller’s side of the duplex. She was aware how high the fire could get (and how quickly) from the first fire, but she still chose to set the second fire next to the gas meter with plenty of dried leaves surrounding it to serve as fuel. And security footage showed her putting some sort of accelerant on the already-burning fire, causing it to flare up. She then moved her car from the alley back to the street before calling emergency services. With her own words, Campbell’s 911 call suggests she believed the gas meter was on fire. Viewing the evidence as a whole, the jury reasonably concluded Campbell either intended to damage or destroy the property or knew damage or destruction would probably result.”
Legal lesson learned: The actual intent of the arsonist does not need to be proved; she intends the natural results of her conduct.
Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson
IN: ADT DIDN’T RE-SET ALARM – $7M CLUBHOUSE FIRE
On August 19, 2026, in Frankenmuth Insurance Company and Lindy’s, Inc., which does business as Juday Creek Golf Course v. ADT LLC, U.S. District Court Judge Damon R. Leichty, United States District Court for the Northern District of Indiana, South Bend Division, held that case will proceed on breach of contract and negligence, but grated ADT’s motion to dismiss actual fraud claims. On April 16, 2024, construction at the clubhouse set off smoke detectors and alerted ADT, which agreed to turn off alarms for one week during construction. ADT placed Juday Creek’s system “on test,” which silenced all fire alarms and supervisory alert; but they never reactivated the system and on August 26, 2024 the clubhouse was destroyed by fire - $7 million loss. https://cases.justia.com/federal/district-courts/indiana/inndce/3:2025cv00741/124078/29/0.pdf?ts=1787223415
THE COURT WROTE:
“A fire ignited at the clubhouse on August 26, 2024—first discovered at 5:30 a.m. by a
passerby who saw smoke emanating from the eaves…. The local fire department was
dispatched and arrived within ten minutes …. Firefighters attempted entry through the front doors, but they determined that the floor was already compromised, so they took a defensive position and never entered the building…. Juday Creek suffered more than $7,000,000 in property damage, business interruption losses, and extra expenses, and claims that these losses could have been avoided or limited had ADT done its job…..
***
Nothing stops Juday Creek from proceeding in tort and in contract here, and the court cannot parse the injuries or damages today. The court cannot say they are coextensive now as a matter of law. The court denies the motion to dismiss the negligence claim.
***
Juday Creek disclaims any fraud based on the ADT representative’s promise to silence the alarm system for only a week and focuses only on the representation presupposed by ongoing billing, and one cannot plausibly assume that billing was not part and parcel of this commercial contract. With no fraud or injury distinct from the alleged breach of contract, Juday Creek’s actual and constructive fraud claims must be dismissed.”
Legal lesson learned: The golf club and their insurance company have a very strong case that will likely settle the case before trial. When alarm company shuts off the alarm for “one week” it is wise for building owner to later re-test to confirm system now back on.
Chap. 2 – Line Of Duty Death / Safety
CA: PFAS TURNOUT GEAR – CLASS ACTION CASES TO MN
On August 18, 2026, IN RE: FIREFIGHTER TURNOUT GEAR MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, U.S. District Court Judge - Matthew F. Kennelly, United States District Court for the Northern District of California (Acting Chair of panel in this multi district litigation class action) has, with agreement of plaintiffs and defendants, transfer the class action to U.S. District Court in Minnesota – where 3M (a key defendant) is headquartered. The consolidated cases allege that firefighter turnout gear, including self-contained breathing apparatuses, hoods, helmets, coats, pants, gloves, boots, and reflective tape—contains per- or polyfluoroalkyl substances (PFAS) that are toxic and harmful to both firefighters and the environment. Cases transferred include County of San Mateo; City of Peabody, MA; City of Rochester, NY; Earlville Community Fire Protection District, IL; and City and County of Butte-Silver Bow, MT. The cases are not transferred to U.S. District Court of South Carolina – Judge Richard M. Gergel is handling 15,000 actions (AFFF MDL - aqueous film-forming foam) claiming harm caused by AFFF manufacture, use, or disposal, and these turnout gear actions do not involve AFFF claims. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmxUKEbGbaFlexcqUctyrnFvzVwwOmAVBm%2FWENjBOa41qr2N0tipNbogFx7Hzz9DDPoKHACO1lVQSrxkGgspUxq8%3D?utm_medium=email&_hsenc=p2ANqtz-_D8uetZhSrdYqgOH6RbHUGR4NBkHGJgxz2M-KgfAGsZ-SE4dcuskkSbWcZUd-KZIzGe72P5qRDJGEH2ZuuPQ98-RV4iA&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT WROTE:
“With respect to the request to transfer these actions to the AFFF MDL, we agree that there is significant overlap between these turnout gear purchaser class actions and the thousands of turnout gear personal injury actions pending in the MDL. Even so, we are not convinced that this overlap merits expanding the scope of the AFFF MDL to encompass non-AFFF actions…. Minnesota also presents a convenient and accessible forum for this litigation. We assign this litigation to Judge Jeffrey M. Bryan, who presides over the three actions in this district. Judge Bryan is an able and experienced jurist who has not yet had the opportunity to preside over an MDL. We are confident that he will steer this litigation on a prudent and expeditious course.”
Legal lesson learned: Lots of litigation concerning PFAS in turnout gear and in firefighting foam.
Note: See this article on the transfer order. “JPML Creates New MDL for Non-AFFF Firefighter Turnout Gear Litigation.” August 24, 2026. https://www.thompsonhine.com/insights/jpml-creates-new-mdl-for-non-afff-firefighter-turnout-gear-litigation/
See also: July 28, 2026 class action already case in Montana, City and County of Butte-Silver Bow, et al v, 3 M Company, et al., where 16 municipalities from throughout the nation bring a nationwide class action against Defendants for the alleged sale, manufacture, and distribution of protective firefighter gear ("turnout gear") containing per- and polyfluoroalkyl substances ("PFAS") to fire departments and fire responding agencies. The Court denied defense motions to dismiss. https://www.casemine.com/judgement/us/6a70a2cd9499dcd9c1f502f5
Chap. 2 – Line Of Duty Death / Safety
IL: “BAILOUT” DRILL – LEATHER BELT – INSTRUCT IMMUN
On August 11, 2026, in George Hidalgo v. Village of Romeoville, the Court of Appeals of Illinois, Third District held (3 to 0) held the trial court judge properly granted summary judgment to the village; firefighter seriously injured when fell from third floor wearing a leather “truckman's belt” (or gut belt) instead of a Class 3 pre-sewn harness. Under Illinois state law, "The purpose of [the] Act is to protect local public entities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1(a) (West 2018). "A local public entity includes a *** municipal corporation" and" 'public employee' means an employee of a local public entity." Id. §§ 1-206, 1-207. The three instructors cannot be sued for willful and wanton conduct, since “immunity under section 2-201 is absolute and not subject to any exceptions based on willful and wanton conduct.” https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/1c448368-41d4-4c8c-ab9a-5c785b8aaec0/Hidalgo%20v.%20Village%20Of%20Romeoville%202026%20IL%20App%20(3d)%20240676-U.pdf
THE COURT WROTE:
“Beginning in 2017, the City of Des Plaines employed plaintiff to serve as a firefighter and paramedic on a rotating basis. From December 2 through 4, 2019, plaintiff attended an Advanced Technician Firefighter training course at the Romeoville Fire Academy (Academy). The purpose of the training course was to train experienced firefighters in skills needed to obtain their Advanced Technician Firefighter certification via a curriculum that included classroom instruction and hands-on practical evolutions.
One of the practical evolutions involved in the training course was a ‘bailout’ drill, which was a drill that was used to teach the trainees how to evacuate a burning building from an elevated height. To complete the bailout drill, the trainees were required to exit a third-story window of a hose tower one leg at a time and then use rappel lines to perform a controlled descent down the side of the tower. The equipment that was needed to conduct the bailout drill included rope, carabiners, webbing, anchors, and hand tools. A portion of the rope was anchored to a steel post inside of the hose tower to form a bailout, or main, line. Another portion of the rope was connected to a pulley system at the top of the hose tower to form a safety, or belay, line. The carabiners were used to connect and lock the bailout and belay lines to D-rings on the trainees' harnesses, which, in turn, enabled the trainees to control their descent using friction.
***
Class 1 harnesses and Class 3 pre-sewn harnesses were also available for the trainees to use during the bailout drill. A Class 1 harness, or ‘gut belt,’ is a body harness that goes around a firefighter's waist, whereas a Class 3 pre-sewn harness is a manufactured body harness that goes around a firefighter's waist and shoulders. On December 4, 2019, the third day of the training course, plaintiff performed the bailout drill using a Class 1 harness. After plaintiff stepped out of the third-story window of the hose tower while performing the drill, he separated from his harness, fell to the ground, and was injured.
***
[Plaintiff alleges] during the bailout drill, he had separated from his belt, fallen to the ground, and sustained serious injuries; and that his fall would have been prevented had he worn a Class 3 harness and his belay line been attached to something other than his Class 1 harness…. Plaintiff testified that he performed the December 4 bailout drill while wearing a Class 1 harness. Before plaintiff exited the third-story window of the hose tower to perform the drill, one instructor attached the bailout line to the front of his harness using a D-ring and carabiner and a second instructor attached the belay line to the back of his harness using another D-ring and carabiner. After an instructor affirmed that plaintiff's harness was properly secured, plaintiff exited the third-story window one leg after another and fell to the ground as he brought his second leg over the windowsill. While plaintiff was on the ground, he observed that his harness was still connected to the bailout and belay lines and suspended below the windowsill.
***
[Instructor Brian] Kulaga testified that about one-third of the trainees who had performed the bailout drill at the Academy during his time there prior to plaintiff's fall had used a Class 3 harness.
***
[Instructor Michael] Pemble further testified that the Academy guidelines did not specify certain details pertaining to the bailout drill, such as where the belay line needed to be attached; that a Class 3 harness needed to be used; or that two, rather than three, points of contact were needed.
***
Furthermore, we note that our determinations that immunity applies with respect to Hardin and Kulaga are not disturbed by the witness testimony that, in 2007, a firefighter fell while performing a bailout drill at the Academy while wearing a leather truckman's belt…. That Hardin and Kulaga did not know about the 2007 fall does not negate the fact that they occupied positions that involved the exercise of discretion and, after considering factors other than the 2007 fall, determined policy in exercising their discretion. It is for this reason that we find plaintiff's contentions regarding the alleged fall to be unpersuasive.”
Legal lesson learned: Absolute immunity protects the instructors and the Village; review your policy concerning use of a leather truckman’s belt during bailout drills.
Chap. 3 – Homeland Security, incl. Active Shooter, Cybersecurity, Immigration
NY: FDNY FF SURVIVED 911 - $15M AGAINST TALIBAN
On August 5, 2026, in class action In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001, U.S. Magistrate Judge Sarah Netburn issued a report and recommendation to U.S. District Court Judge George B. Daniels, United States District Court for the Southern District of New York, that the Taliban be ordered to pay several plaintiffs injured on 911, including FDNY firefighter Louie Cacchioli. “The Court thus recommends an award of $5 million in pain and suffering damages…. In accordance with § 2333(a), the Court also recommends awarding Cacchioli treble damages.” https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm6y%2ButKVHQ7qplXbc9U9gWaO0ooWSN9ntzBjMGV9FUUQ?utm_medium=email&_hsenc=p2ANqtz-_Z4fCy207wA-GVpVh4JS6wIyKK4xAt9PwjI-H5ckiw2tYlLKp3PzFWQuUG8qe1JOGf1y8GbQNr8qUECGdNhBetcdlP1w&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT WROTE:
“Two groups of Burnett Plaintiffs (the ‘Plaintiffs’) move for partial default judgments against the Taliban…. The Plaintiffs were all United States nationals on September 11, 2001, and thus they bring their claims under the Anti-Terrorism Act, 18 U.S.C. § 2333(a) (“ATA”)…. They argue that the Taliban aided and abetted al Qaeda, facilitated the 9/11 Attacks, and caused the personal injuries and the latent conditions that they developed following the Attacks…. Plaintiffs received prior pain and suffering awards against co-defendant the Islamic Republic of Iran (‘Iran’). Seven Plaintiffs request individual damages determinations for the first time.
***
On 9/11, Louie Cacchioli was a firefighter with the New York City Fire Department (‘FDNY’), Ladder 47…. After arriving at the fire station for his morning shift, Cacchioli heard the news that a passenger jet had crashed into the North Tower of the WTC…. He then saw United Airlines Flight 175 hit the WTC's South Tower…. His team immediately sprang into action and were instructed to head to the Marriot Hotel near the WTC…. When Cacchioli arrived, the hotel was on fire from debris falling from the Towers, and he ‘saw people jumping [from the Towers] and falling almost right on top of [him].’ … One of the ‘jumpers landed on [his] fellow firefighter, Danny Sur, killing him instantly.’ … As other bodies struck the ground, they ‘made a horrible sound.’ …
Still, Cacchioli and his team entered the hotel and escorted people outside and to safety.
Cacchioli then received instructions to approach the North Tower. As he entered the lobby with his team, he encountered a ‘war zone’: the elevators doors had been ‘completely blown out’ and ‘people were running and screaming and being struck by falling debris.’ … Cacchioli and other firefighters then took an operational elevator to the 24th floor. As the doors to that floor opened, Cacchioli briefly saw ‘a cloud of dust, debris, and smoke.’ … He and another firefighter doubled back for more tools. But as they took the elevator down, Cacchioli ‘heard a huge explosion that sounded like a bomb’; the elevator stalled and its lights went out…. Cacchioli and his partner were able to pry open the doors and exit onto another floor.
As explosions continued, Cacchioli rushed to exit this floor. He crawled, with a flashlight in hand, to eventually find an exit staircase…. Once inside, he began directing ‘a group of about 30 to 40 people’ downstairs. After several explosions, Cacchioli heard ‘bang, bang, bang' and surmised that it was floors collapsing on top of one another.’ … Even while carrying one man on his back down 12 flights of stairs, Cacchioli directed his group to the lobby of the North Tower…. Part of his group exited to the left, and Cacchioli continued to the right with others. While ‘[t]he people that headed to the left didn't make it out,’ Cacchioli and his group ‘came out alive on West Street.’ …
Once outside, Cacchioli began hearing ‘more loud noises . . . like bombs going off,’ and when he looked back, he saw the North Tower's antenna falling…. He began running to ‘stay ahead of the huge black smoke ball’ coming after him…. As he ran, he removed his air mask ‘to make himself lighter’ and run faster…. He threw himself to the ground at one point because ‘the heavy sawdust-like air mixing with glass . . . was choking [him] and taking away [his] vision…. At another point, he fell by a fire truck, where he found and put on a compressed air breathing mask…. He passed out and awoke to another firefighter pulling him to safety…. Cacchioli continued searching for his friends ‘until [he] couldn't walk anymore.’
Following the Attacks, Cacchioli sought and continues to receive monthly medical attention for his injuries. He reports suffering from multiple physical injuries—including corneal and retinal damage, pulmonary injuries (e.g., chronic obstructive pulmonary disease), lung disease, asthma, a strained back, and damages to his teeth and jaw—and provides medical records detailing each injury and his treatment…. Cacchioli was also diagnosed with post-traumatic stress disorder (‘PTSD’) due to his experiences during the Attacks…. The VCF [911 Victim Compensation Fund] found Cacchioli eligible for compensation for only his corneal and retinal damage and a ‘pulmonary injury.’ … These are ‘significant’ injuries, however, because they are analogous to ‘nasal irritations, chest pain, and asthma from inhalation of smoke, soot and dust’ and ‘cuts/lacerations/bruises.’”
Legal lesson learned: The Taliban have never been in this Court and any judgment awarded with require seizure of Taliban assets.
Chap. 5 – Emergency Vehicle Operations
MD: FIRETRUCK – JURY – FAO NOT NEG – CAR DIDN’T YIELD
On August 17, 2026, in Rodney Ivey v. Mayor and City Council of Baltimore, et al., the Appellate Court of Maryland held (3 to 0; unreported decision) that the jury found no negligence by the operator of the firetruck. [See photos of engine.] On a run for building fire, two fire engines were on three lane road and needed center lane to make left turn. One vehicle pulled to right curb, but plaintiff’s vehicle just stopped in center lane. The first engine made it through, but second engine clipped front side of stopped center lane vehicle (FAO didn’t know he scraped the car until after the run). Jury heard the evidence and held that the FAO was not negligent. Court of Appeals agreed. https://www.mdcourts.gov/sites/default/files/unreported-opinions/0042s25.pdf
THE COURT WROTE:
“The driver of the firetruck, Mr. Brown, testified that the fastest route to the
location of the reported fire required him to make a left turn from East Saratoga Street
onto Guilford Avenue. Because of the vehicle’s length, he could not make that turn from
the left lane. Because several cars stopped in the center lane, he could not use the center lane. As he attempted to use the right lane, a smaller vehicle pulled over and stopped next to the curb, apparently in an effort to yield the right-of-way. To maneuver around that vehicle, he steered to the center lane and then steered back into the right lane and tried to straighten out before the intersection.
One can reasonably conclude that this maneuver affected the angle of his turn and increased the degree of difficulty, relative to the difficulty experienced by the first firetruck. Under those circumstances, the left side of the firetruck, several feet from the back of the firetruck, made contact with the front right side of Mr. Ivey’s stopped vehicle. Based on the video evidence and photos of the damage to Mr. Ivey’s vehicle, the jury could make its own assessment of the severity of the collision.
***
The jury could conclude that Mr. Brown exercised the degree of care required of an emergency vehicle operator performing an emergency service, but he nevertheless was unable to avoid the collision. In reaching that conclusion, the jury could consider the emergency situation, the length of the firetruck, the narrow confines through which the firetruck operator needed to maneuver, and the absence of an obvious threat to the safety of others (such as a potential head-on collision). It was up to the jury to decide whether, in the circumstances, Mr. Brown’s conduct created an unreasonable risk of harm to others.
At a minimum, the evidence permitted the jury to find that Mr. Brown was not
negligent under the circumstances. For that reason, we conclude that the circuit court did not err in denying Mr. Ivey’s motion for judgment and thereby allowing the jury to
decide whether the City was liable for negligence.”
Legal lesson learned: Maryland law, like many states, requires drivers to pull to the curb and grant right away to emergency vehicle.
Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights
IL: POOR PERF / THREATS - NO LINE-OF-DUTY DISABILITY
On August 31, 2026, in Daniel Haley v. East Moline Firefighters’ Pension Fund. et al., the Court of Appeals of Illinois, Fourth District held (3 to 0) that the pension Board’s decision denying Haley's application for a line-of-duty disability pension does not stand against the manifest weight of the evidence. The record contains evidence to support the Board's decision, so we affirm it.” The firefighter receives only a non-duty disability pension. https://ilcourtsaudio.blob.core.windows.net
THE COURT WROTE:
“2018 Threats, Unfitness, and Administrative Leave.
Haley testified [before the Pension Board] that in February 2018, he was preparing to appear before the fire and police commission board for a disciplinary hearing regarding his poor performance evaluations. When his superior, Lieutenant Caves, asked Haley what he planned to do in the hearing, Haley remembered saying, ‘I'm going to go in there and I'm going to burn this place down, or burn this place to the ground.’ Haley testified it was a ‘figure of speech.’ When Caves admonished him, Haley was ‘kind of taken aback’ because he believed Caves ‘knew what [he] meant.’ Haley responded to the rebuke by sarcastically asking, ‘Well you want me to say blow the place up?’ or, ‘Shoot the place up?’ Haley said, ‘Fine, I will expose it for the shit hole that it is.’ He elaborated that he ‘felt that [he] was being treated wrongly and persecuted for things that weren't a big deal’ and wanted to "throw people under the bus." Haley testified Caves reported his statements up the chain of command.
The battalion chief confronted Haley and asked if he needed to go home. Haley said no, and he finished his shift without incident. The next day, February 22, 2018, Haley was placed on administrative leave and sent for an evaluation with Dr. Campion [two independent psychological evaluations with Thomas R. Campion, Ph.D.] who found him ‘emotionally unfit for duty’ and placed him off work. Meanwhile, Haley testified he had his disciplinary hearing regarding his poor performance reviews in July 2018 and received a 30-day suspension. When Drs. Lash and Narayana told him he could return to work in November 2018, the department sent him back to Dr. Campion, who again found him emotionally unfit for duty. Haley said he ‘was shocked’ by the second unfitness finding. He testified this finding prompted his second disability application, saying, ‘The city's doctor told me that I was unable to go to work due to PTSD.’
***
Per section 4-112 of the Pension Code, the Board selected four doctors to examine Haley. See 40 ILCS 5/4-112 (West 2020). Over the course of three months in autumn 2020, Haley underwent three psychiatric evaluations—with Richard P. Harris, M.D., in September, Steven Weine, M.D., in October, and Gaurava Agarwal, M.D., in November.
***
Nearly two years passed before the Board reconvened another hearing on Haley's application…. After executive session, the Board unanimously voted to deny Haley a line-of- duty disability pension. It then unanimously voted to grant him a nonduty disability pension…. We hold the Board's decision denying Haley's application for a line-of-duty disability pension does not stand against the manifest weight of the evidence. The record contains evidence to support the Board's decision, so we affirm it.”
Legal lesson learned: Pension Board heard testimony at two separate hearings.
Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights
NM: CHIEF DIED CANCER – WIFE - MAX 700 WEEKS NM LAW
On Aug. 19, 2026, in Janet M. DiLuzo v. City of Santa Fe, the Court of Appeals of New Mexico held (3 to 0) that under state law the total duration of all benefits (disability and death benefits) is limited to 700 weeks. Chief Frank Clark Di Luzio was a firefighter for the City of Santa Fe New Mexico, for over twenty years; he retired on August 1, 2001, and 12 years later was diagnosed with Stage IV mantle cell non-Hodgkin’s lymphoma. He became physically unable to work on January 11, 2012, and never recovered. The city paid permanent total disability (PTD) benefits for 492 weeks, approximately nine and one-half years, totaling $360,714.72. After his death on June 2, 2021, at the age of sixty-six, the Worker’s Comp judge after a trial awarded her an additional 700 weeks of pay totaling $513,212. Court reversed this award, since that would be a total of 1,192 weeks, exceeding the 700-week maximum; her death benefits are limited to the remaining 208 weeks.
THE COURT WROTE:
“However, we do conclude that the 700-week aggregate limit on all collective
benefits under the ODDL, in Section 52-3-14(D), applies to Widow’s death benefits.
Because Worker received 492 weeks of disability benefits during his life, Widow’s
death benefits are limited to the remaining 208 weeks…. Section 52-3-14(H)(2) sets the maximum duration of death benefits, standing alone, at 700 weeks from the date of a worker’s death, while Section 52-3-2 14(D) limits the combined total of all collective benefits, including disability and death, to a 700-week aggregate limit. This reading gives meaning and effect to every part of the statute…. The aggregate limit in Section 52-3-14(D) reflects a legislative judgment to limit employers’ total exposure, a ‘legitimate legislative goal,’ per our Supreme Court in Schirmer, 1994-NMSC-095, ¶ 8.”
Legal lesson learned: Legislature can limit total of disability and death benefits to 700 weeks.
Note: The Court rejected the City’s other arguments: “First, Section 52-3-14(H) of the ODDL requiring death to occur ‘within the period of two years’ from the disablement bars Widow’s claim because Worker died more than nine years after the onset of his disablement. Second, Section 52-3-10(B)(4) of the ODDL bars death benefits because Worker died more than three years after his last day of employment with the City.”
Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination
CA: INTERN AFFAIRS – FOCUS 2 MALE PD - JURY $8M / $4M
On July 30, 2026, in Stephen Glick and Alfred Garcia v. City of Los Angeles, the California Court of Appeal, Second District, Division 2, held (3 to 0) that the trial court improperly granted the City a new trial, and reinstated jury’s September 2023 gender discrimination verdict for Officer Glick ($8,621,358, including emotional stress damages) and Officer Garcia ($4.5 million, including emotional stress). The prisoner (Raul C.) was arrested on Jan. 26, 2017 for DUI after he struck a child with his car. While in the holding cell Officer Alfred Garcia “used his personal cell phone to take a picture of Raul lying on the floor in his own vomit. At some point it was determined that Raul needed medical attention. Paramedics took Raul to the hospital, where he was intubated and treated for acute alcohol poisoning.” The prisoner filed a complaint that an unknown officer shaved off his eyebrows, shaved his mustache to look like Adolf Hitler’s, and drew a penis and wrote the word “puto” on his abdomen with a marker. LA PD Internal Affairs launched a “major” investigation concerning “battery” of the prisoner; subpoenas were obtained on cell phones of two male PD, their two female PD partners, and two medics who transported the prisoner from police station to hospital. Only the male officers were ordered to desk duty and then to their homes pending possible termination. Internal Affairs failed to identify who shaved the prisoner. The police chief eventually officially reprimanded only Officer Garcia for failing to get Raul prompt medical treatment. The jury heard testimony that “When a police union representative complained to a high-ranking LAPD official about the disparate treatment between plaintiffs, who are male, and their partners, who are female, he was told that ‘this is something guys would do, not females.’” https://www4.courts.ca.gov/opinions/documents/B334953.PDF
THE COURT WROTE:
“A jury found in favor of Stephen Glick (Glick) and Alfred Garcia (Garcia) (collectively, plaintiffs) on their claims for gender discrimination and retaliation against the City of Los Angeles (City). The jury awarded Glick $8,621,358 in damages and Garcia $4.5 million, and the trial court entered judgment in that amount. The court later conditionally granted the City’s new trial motion unless Glick agreed to a remittitur reducing his damages to $250,000 and Garcia agreed to reduce his damages to $125,000. Plaintiffs rejected the reduced awards. Plaintiffs and the City both appealed. We reverse the order granting a new trial on damages. The trial court abused its discretion by capping the amount of
damages a jury can award for so-called “garden-variety emotional distress.” The court also abused its discretion by erroneously rejecting as inadmissible Glick’s own testimony about his future economic damages. Because the jury’s damages awards were not
excessive as a matter of law or unsupported by the evidence, we reinstate the judgment and affirm it.
***
LAPD’s Internal Affairs department (Internal Affairs) conducted a ‘major investigation’ into Raul’s allegations. Internal Affairs obtained a search warrant for the cellular telephone records of plaintiffs, their partners, and two paramedics. A second search warrant was obtained to seize plaintiffs’ cellular telephones but not those belonging to their partners. Internal Affairs also searched plaintiffs’ lockers and police and personal vehicles. Internal Affairs later served search warrants on plaintiffs’ partners to seize their cellular telephones but did not search their lockers or cars.
Plaintiffs were ‘benched,’ meaning that they were removed from field duties and assigned to work at the front desk of the station. Their partners, Orefice and Spitaleri, remained in the field. Because Internal Affairs was unable to identify who committed the battery on Raul, the commanding officer recommended that those allegations be adjudicated as ‘not resolved.’ As for the failure to request medical attention for Raul in a timely matter, the commanding officer recommended that Garcia be suspended for three days and that Glick, Spitaleri, and Orefice receive official reprimands. LAPD’s deputy chief later recommended increasing Garcia’s suspension to 10 days. The chief of police, however, rejected the disciplinary recommendations. Instead, the chief relieved plaintiffs from duty pending a hearing before the Board of Rights to terminate their employment. While awaiting the hearing, plaintiffs were required to stay at their homes unless they received approval to leave. The chief of police later canceled the Board of Rights hearing and adjudicated the battery counts against plaintiffs as ‘not resolved.’ The chief officially reprimanded plaintiffs for failing to get Raul medical treatment.”
Legal lesson learned: Internal Affairs investigations and discipline must be thorough involving both male and female officers. Jury obviously found gender discrimination.
Chap. 8 – Race / National Origin Discrimination
IL: BLACK FEMALE BC – NOT PROM 3 TIMES – RANKED LOW
On August 18, 2026, in Rhonda Walker v. City of Chicago, U.S. District Court Judge Mary M. Rowland, United States District Court for the Northern District of Illinois, granted summary judgment to the City; the City's proffered non-discriminatory reason for not promoting Walker to Deputy District Chief in September 2022. again in November 2022 and again in February 2024. During first panel, Deputy Commissioner Ferman ultimately ranked Walker eighth or ninth out of the pool of candidates. Assistant Deputy Commissioner Walker similarly did not rank her highly compared to the other candidates. The Court concluded: “Promoting individuals who an employer believes are better qualified for a position is legitimate, nondiscriminatory reason for an action.” https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmwkNGC21ZfGHMzbRo4fP8cpz%2BCEZ70RU4N9i%2B957fR2H?utm_medium=email&_hsenc=p2ANqtz-93BCHKeY8rFUHPxU20EYDUZBKoA8xfPL2gbvtqTb-KfZ-jSuPHcMWp2f3aURAUU2s5vJrKmBa580UVad7TZkqQmEMaRQ&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT WROTE:
“Walker, a black female, worked for the Chicago Fire Department (‘CFD’) from October 1, 1991 until her retirement on August 16, 2024…. Over her tenure, Walker held many roles within CFD, including Firefighter EMT, Lieutenant, Captain, and Battalion Chief…. Of relevance here, from 2021 until her retirement, Walker was a Battalion Chief for CFD Battalion 21, located in Chicago's Beverly neighborhood.
***
In 2022, due to a shortage of Deputy District Chiefs, CFD determined that additional promotions from Battalion Chief to Deputy District Chief were necessary…. As such, on September 7, 2022, Commissioner Nance-Holt, through her Chief of Staff, sent an email to all Battalion Chiefs seeking applications from those interested in becoming Deputy District Chief…. [Nine]Battalion Chiefs submitted applications…. The Battalion Chiefs who submitted applications were later interviewed by a four member-panel… The panel eventually selected Haynes [Black] and Burns for promotion to Deputy District Chief.
Following the November 2022 promotions, a second round of Deputy District Chief promotions occurred in 2023…. The panel did not conduct another round of interviews for the second round and instead relied on the same materials and interviews from November 2022 promotions…. The panel eventually selected Brooks, Ochoa, Chris Serb, and Douglas Schick for promotion to Deputy District Chief. Id. The second round of promotions were effective on or about March 16, 2023.
***
A third round of Deputy District Chief promotions occurred in 2024…. Applicants who had previously interviewed and were still interested in the role were considered….. Additionally, several new Battalion Chiefs who had expressed interest in the role were interviewed and considered…. The new candidates were interviewed by a different panel consisting of Deputy Commissioner Ferman, Assistant Deputy Commissioner Walker, and Assistant Deputy Commissioner of Airport Operations John Geis.
***
The City's proffered non-discriminatory reason for not promoting Walker to Deputy District Chief in February 2024 is straightforward: Walker was not a top candidate. When making decisions on Deputy District Chief promotions in February 2024, Deputy Commissioner Ferman testified that the panel was looking to pick the best possible person available at the time, and specifically, those who had the best training, could best handle emergency incidents, and had the best communication skills…. Based on interviews, resumes, and attention to each candidate's radio communications and day-to-day operations, the panel believed that Crowley, Mielnicki, Pinkston, and Shawluck each exhibited valuable attributes and skills, had stronger radio communication abilities compared to Walker, and were ultimately the best candidates…. Promoting individuals who an employer believes are better qualified for a position is legitimate, nondiscriminatory reason for an action. See Scruggs, 587 F.3d at 838. As the City has articulated a legitimate, nondiscriminatory reason for its promotion decision, Walker must present sufficient evidence to create a genuine issue of material fact as to pretext.”
Legal lesson learned: Promoting the best candidates is legitimate, and non-discriminatory.
Chap. 8 – Race / National Origin Discrimination
LA: WHITE B/C – 6HR SUSP / TRANS – DEI MEMO EMS CLASS
On August 6, 2028, in Henry L. Beba, Jr. v. New Orleans City, et al., U.S. District Court Judge Lance M. Africk, United States District Court for Eastern Louisiana, dismissed all of Beba's claims against defendants, including failure to promote, with prejudice (no further amended complaints can be filed). “The NOFD disciplinary process regarding Beba's statements during the EMT [course] culminated on March 26, 2025, when he was informed via letter that NOFD was imposing a six-hour suspension for his statements.” He was also transferred on March 24, 2025 from Station 508 to a “floating position” - Staff Platoon 2 (four other District Chiefs received transfers to stations). The Court held: Beba fails to state a claim for First Amendment retaliation. At its core, Beba's statement is that he feels he is more qualified to be deputy chief than a colleague promoted over him. Thus, even within the confines of his slight reference to DEI, the nature of his statement is airing a personal grievance, which weighs against finding that his statement was a matter of public concern.” https://cases.justia.com/louisiana/fourth-circuit-court-of-appeal/2026-2025-ca-0870.pdf?ts=1784938638
THE COURT WROTE:
“Beba is a white, male district chief for the New Orleans Fire Department (‘NOFD’). He first joined NOFD in 1991, and from August 5, 2018 until March 20, 2025, Beba was assigned as a district chief to the ‘8th District, Second Platoon (Station 508), an ‘assignment’ he obtained through a ‘seniority-based . . . system.’
In January 2025, Beba enrolled in ‘an EMT-BASIC program at Delgado Community College.’ As an introductory assignment, Beba and other students in the class responded to a series of prompts, including, ‘[t]ell us what's got you [sic] interested in EMS (YES, EVEN YOU FIRE . . .).’ In response to this prompt, on January 20, 2025, Beba wrote:
I'll be candid-I initially had no plans to pursue my Basic-EMT certification. My focus was on advancing through the promotional ranks, a path that included rigorous training, setting personal goals, and achieving professional milestones. However, after experiencing setbacks in the promotional process and not being a DEI candidate after passing the Deputy Chief Promotional Exam at #6 only to be passed over by the last person on the list at #14 because he fits more the description of a DEI promotion, I realized that pursuing my EMT certification could provide a meaningful way to enhance my skills, help others, and secure a 5% increase in my pension going forward cutting my loss of not getting the promotional 10%.
More importantly, this certification will equip me to better assist others, especially family members, in times of medical need.
Beba's response was visible on the online discussion board to his classmates, including multiple members of NOFD. Beba's statements were ultimately shared with members of NOFD outside of the EMT course, including with the individual that he referred to as a ‘DEI candidate.’ Shortly thereafter, NOFD leadership became aware of Beba's ‘derogatory comments,’ and on February 6, 2025, he received a disciplinary charge for violating NOFD's Workplace Harassment & Discrimination Policy. Following the issuance of the disciplinary charge, an investigation occurred.
While the initial disciplinary process regarding these comments was pending, Beba was reassigned from his post in the 8th District on March 20, 2025. Beba was listed as one of five NOFD district chiefs reassigned in an email from defendant [Deputy Superintendent of Fire Armand M.] Bourdais. While the four other district chiefs were transferred to specific stations, Beba was reassigned as a district chief for ‘Staff platoon 2.’ District Chief Thomas Ussin (‘Ussin’) was transferred to fill Beba's previous assignment with ‘[Station] 508 platoon 2.’ Beba, Ussin, and a third district chief were designated as ‘operational’ transfers.
Beba alleges that, before his March 2025 transfer, he had submitted complaints to his supervisor concerning Ussin for ‘responding to incidents in a personal vehicle,’ ‘sleeping at home while on duty[,] and responding to incidents improperly.’… According to Beba, his reassignment was the result of racial discrimination, in violation of Title VII, and retaliation for protected speech, in violation of the First Amendment. Beba posits that, despite being informed that the reassignment was not a disciplinary action, it was, in fact, disciplinary. He submitted ‘an official Employee Grievance [form]’ with respect to his reassignment on March 23, 2025.
***
Beba fails to state a claim for First Amendment retaliation.
At its core, Beba's statement is that he feels he is more qualified to be deputy chief than a colleague promoted over him. Thus, even within the confines of his slight reference to DEI, the nature of his statement is airing a personal grievance, which weighs against finding that his statement was a matter of public concern. Gibson, 838 F.3d at 485.”
***
Beba fails to plausibly state a claim for deprivation of procedural due process.
Beba asserts that defendants violated his right to procedural due process when he was reassigned from his post in the 8th District…. The Fifth Circuit has rejected public-employee claims of entitlement when reassignment does not economically impact the plaintiff and does not deprive them of professional duties guaranteed by contract or state law…. Other than an ambiguous reference to NOFD ‘established policies . . . and practices,’ Beba does not assert any cognizable right to the responsibilities that he possessed before his reassignment. Indeed, the facts Beba alleges indicate that he retained the duties of a district chief post-transfer, and that his transfer was simply to a ‘floating position’ without fixed authority in any one district.”
Legal lesson learned: Use care in your posting, whether class work or on Social Media.
Chap. 8 – Race / National Origin Discrimination
MS: NEW MAYOR – BLACK CHIEF – LET GO AFTER 25 YRS
On July 28, 2026, in Derreck Stamps v. City of Vicksburg, et al., U.S. District Court Judge Daniel P. Jordan III, United States District Court for the Southern District of Mississippi, Northern Division, granted the City motion to dismiss; the former Chief filed complaint that he was terminated based race and age (51), but actually under Mississippi law he was not “reappointed” by the new Mayor. The case may not be over if he has evidence of race or age discrimination. “For the reasons stated below, the Court grants Defendants' motion because Stamps lacks standing, but he will be allowed to seek leave to amend.” https://cases.justia.com/federal/district-courts/mississippi/mssdce/3:2025cv00733/130626/17/0.pdf?ts=1785351264
THE COURT WROTE:
“Stamps began serving as the Fire Chief for Vicksburg, Mississippi, in June 2000…. Twenty-five years later, in June 2025, Vicksburg held a mayoral election during which Defendant Willis Thompson ousted incumbent George Flaggs…. Stamps was a ‘known supporter[] of Mr. Flaggs.’ … After Thompson was sworn in, Stamps learned that the Mayor and Board of Aldermen passed a resolution appointing department heads across the city to interim positions…. This resolution listed all current department heads except Stamps and the police chief (another Flaggs supporter)…. Mayor Thompson told Stamps about that decision in a text message, telling him that ‘the Board had decided to go in a different direction regarding Mr. Stamps' role as Fire Chief.’ … Stamps wanted answers, so he attended the next Board of Aldermen meeting to ask about his termination…. Only the Mayor spoke, claiming he and the Board had the discretion to appoint whomever they wished because Mississippi was an at-will state…. Stamps was 51 years old at the time.
***
According to Stamps, his claims all ‘arise from Plaintiff's abrupt termination as Fire Chief for the City of Vicksburg after more than two decades of service.’ … But that's not what happened. In Mississippi, mayors and boards of aldermen ‘have the power and authority to appoint . . . officers and employees as may be necessary . . . [who] shall hold office at the pleasure of the governing authorities and may be discharged by such governing authorities at any time, either with or without cause.’ Miss. Code Ann. § 21-3-5. Notably, ‘[t]he terms of office or employment of all officers and employees so appointed shall expire at the expiration of the term of office of the governing authorities making the appointment.” Id. (emphasis added). So, Defendants did not terminate Stamps's tenure, his position ended by statute as did the positions of every other department head. See Compl. [1] ¶ 14. He simply was not reappointed.”
Legal lesson learned: Mississippi is an “at will” state; this can result in unfair employment decisions.
Chap. 9 – Americans With Disabilities Act
MD: MEDIC PTSD / FIRED – REQ. BE EMT - CASE PROCEED
On August 27, 2026, in Christpher Dew v. The City of Annapolis, U.S. District Court Judge Brendan A. Hurson, United States District Court for the District of Maryland, denied the City’s motion for summary judgment. The Court found, after all depositions and pre-trial discovery was completed, that Drew was medically qualified to serve as an EMT (not as a paramedic) and it would not be an “undue hardship” for fire department to accommodate him. The case will now go to jury unless settled. In March 2020, Drew was injured when a patient fell on him, he was off work for 3 months, and upon return had anxiety attacks and depression. In July 2020 he went on FMLA leave and began receiving treatment through the International Association of Firefighters where he met with Patrick Baker, LCSW for therapy, and also a private mental health provider. On September 30, 2020, Dew sent Chief Remaley a letter requesting an accommodation of a demotion to Grade 13 Firefighter First Class / EMT, removing his paramedic duties as an ALS provider. The Fire Chief ordered an independent medic exam by the City’s forensic psychologist, Dr. Jack Leeb. Dr. Leeb issued a report supporting Drew’s accommodation as a firefighter / EMT - “[t]o the extent possible, it is recommended that FF/PM Dew's desire to work as a firefighter be accommodated” and that “FF/PM Dew is psychologically fit to return to duty as a firefighter but... it would not be appropriate for him to be assigned as a paramedic.” A second report by Dr. Leeb confirmed plaintiff was not fit for duties as a paramedic. Shortly after, on November 12, 2020, Chief Remaley issued a letter to Dew notifying him of Chief Remaley's intent to terminate Dew's employment effective January 1, 2021.
THE COURT WROTE:
“In February of 2012, Dew was hired by the Annapolis Fire Department (‘AFD’) as a Firefighter II and Emergency Medical Technician (“EMT”)-Paramedic, also known as an advanced life support (‘ALS’) provider and more commonly referred to as a paramedic…. When Dew was hired, he had decades of experience as a firefighter paramedic with other departments in Maryland and Washington, D.C…. On March 9, 2017, Dew was promoted to Firefighter First Class (‘FF 1/C’), a position which both ALS and BUS providers can occupy…. Two years after his promotion, in March of 2020, Dew suffered an injury on the job…. Dew's left shoulder, neck, and back were injured when he caught a civilian who fell forward on top of him after calling EMS services for help…. . Approximately three months after the injury, Dew returned to work…. After his return, however, Dew began experiencing anxiety attacks and depression related to his role as a paramedic…. For example, Dew describes experiencing a mental health episode while watching an accident scene on television…. Dew reports reaching out to colleagues about his experience, including his battalion chief, Nathan Powell…. Specifically, Dew described his struggles during this time a related to the knowledge and anxiety of being ‘ultimately responsible for this person's life, for making decisions or - or potentially making the wrong drug calculation[.]’
***
On October 22,2020, Plaintiff went for an IPE with the City's forensic psychologist, Dr. Jack Leeb…. The City ultimately received versions of a report from Dr. Leeb regarding that evaluation…. In Dr. Leeb's first report, he states that ‘[t]o the extent possible, it is recommended that FF/PM Dew's desire to work as a firefighter be accommodated’ and that ‘FF/PM Dew is psychologically fit to return to duty as a firefighter but... it would not be appropriate for him to be assigned as a paramedic.’ However, in Dr. Leeb's revised, second report, this recommendation and conclusion of Mr. Dew's psychological fitness does not appear…. Instead, Dr. Leeb solely opines on Dew's ability to return as both a firefighter and paramedic, which he concluded Dew could not do “[s]ince the official job description melds the jobs of firefighter arid paramedic’ and ‘Dew said that he feels permanently unable to continue working as a paramedic.’ Dr. Leeb thus concluded that Dew could not, ‘at this time, be considered psychologically fit for duty…. Dr. Leeb included in his IPE report the instance of the anxiety attack suffered by Dew while watching the television show…. Dr. Leeb's report also describes Dew stating that ‘something broke inside’ of him after he attended to a belligerent patient, causing him to report losing some degree of empathy towards his patients.
***
Qualified Individual
The Court agrees with the City that there is ‘no question that responding to medical emergencies is an essential function of the FF 1/C position.’ … However, the Court disagrees with the City insofar as the Court concludes that there is a genuine dispute of material fact regarding whether Dew could perform that essential function. Dew's deposition testimony . reflects that he understood that returning to work as a ‘firefighter’ would mean returning with EMT duties and would therefore entail responding to medical emergencies as a significant portion of the job…. Dew has produced evidence, through his own testimony and his record of receiving care from providers, that it was not the provision of medical services themselves that made his anxiety, PTSD, and depression unmanageable, but rather the heavy weight, as he describes it, of bearing the ‘ultimate responsibility for patient care’ that comes along with being an ALS provider, as opposed to a BLS provider.
***
Undue Hardship
The Court concludes that the City is not entitled to summary judgment on the basis of undue hardship because Dew has shown a genuine dispute of material fact on that issue…. The City has argued that at the time of Dew's request, ‘three shifts had nine ALS providers and one shift had 10 ALS providers, far below the goal of 12 ALS providers per shift.’ … According to the City, permitting Dew to drop ‘his ALS certification would have left Plaintiff's shift with eight ALS providers, requiring either a more frequent rotation for the ALS providers on the medic unit and/or personnel changes.’ …. The City contends that such an outcome could ‘increase[] the risk of burnout, impact[] leave eligibility, and reduce[] opportunity for training and skills enhancement for the remaining ALS providers at AFD.’… Given that a reasonable juror could come to multiple conclusions on the issue of undue hardship as well as on other issues in this case, as described above, the City is not entitled to summary judgment.”
Legal lesson learned: This is an important case that hopefully will encourage other Fire Departments to consider reassignment of medics suffering from PTSD.
Chap. 9 – Americans With Disabilities Act
FL: CHIEF FIRED “MED OFFICER” – DISAB / CHIEF NOT TOLD
On August 10, 2026, in Walter Ebbert v. Ocean City Wright Fire Control District, the Unites States Court of Appeals for the Eleventh Circuit (Atlanta) held (3 to 0, unpublished decision) that lawsuit is reinstated to give the “Medical Officer” additional opportunity to show the trial court judge that he asked for specific accommodations to complete six tasks: less stress, more time, more information. Fire Chief Mark Bunrick fired him on March 17, 2022 for not timely completing six tasks (including developing a test-taking training course) in over a year and a half. Surprisingly, the Chief was never informed by his Deputy Chief or the City’s HR Manager that Ebbert suffered traumatic brain injury and PTSD from his military service. On May 14, 2020, Fire Chief Mark Bundrick had assigned Ebbert six tasks which he expected Ebbert to complete in 60 days; he was fired on March 17, 2022, over a year and a half after the tasks were first due, for failing to complete any of the tasks. https://cases.justia.com/federal/appellate-courts/ca11/25-10435/25-10435-2026-08-10.pdf?ts=1786397539
THE COURT WROTE:
“First, no reasonable juror could conclude that Bundrick knew about Ebbert’s disabilities when he decided to fire Ebbert. Ebbert never told Bundrick about his disabilities. Ebbert told Lord [former Fire Chief Billy Lord], Rimes [Jennifer Rimes, Ocean City’s Human Resources Manager], and Wagner [Deputy Chief Jeff Wagner]about those disabilities, but none of those employees told Bundrick [Fire Chief Mark Bundrick]. And Bundrick testified that he did not know about Ebbert’s disabilities.
***
Ebbert contends that a reasonable juror could reach that conclusion because the record
reflects that he was fired ‘for the very things for which he was seeking accommodations.’ Appellant Br. at 29. We agree.
A reasonable juror could conclude that a failure to accommodate led to Ebbert’s termination for two reasons. First, a reasonable juror could conclude that Ocean City
fired Ebbert for failing to complete any of the six tasks that Bundrick assigned to him in May 2020 by mid-March 2022. Bundrick testified that he fired Ebbert for ‘[p]oor work performance.’ … And he explained that Ebbert was ‘not performing [his] job’ because ‘none of [those tasks] got completed’ in ‘two years.’ ….
Second, a reasonable juror could conclude that Ebbert could have completed the tasks if Ocean City had granted his requested accommodations [less stress, more time / more information]. Ocean City says that Ebbert’s requested accommodations would not have ‘cure[d] his ongoing inability to perform.’ Appellee Br. at 19. We disagree. Ebbert worked in this position for over ten years, and he had performed some similar tasks for his previous supervisor with the benefit of many of the accommodations he requested of his most recent supervisors. Moreover, we cannot say as a matter of undisputed fact that Ebbert’s request for accommodations came too late. Ebbert testified that he requested accommodations over three months before he was fired in March 2022, and his successor completed some of these tasks within three months of when they were assigned.”
Legal lesson learned: It’s important that the Fire Chief is informed of an employee’s disability before a termination decision is made.
Note: Chief Judge William Pryor wrote a Concurring Opinion that questions whether the employee made “reasonable” requests for accommodations.
“First, Ebbert’s request for a less stressful environment or for less stress is likely not specific enough because he did not explain how his employer could achieve those goals…. Second, Ebbert’s request for additional time without clarifying the length of the extension is also likely not specific enough…. Third, Ebbert’s requests for more information on his tasks and for better guidance are both likely not specific enough and unreasonable.”
Chap. 11 – Fair Labor Standards Act, and Military Leave
WV: “SLEEP TIME” FLSA / PA CLAIMS – “UNINTERRUPTED”
On Aug. 24, 2026, in Daniel Fox, Jr., and Robert Sovine, Individually and for Others Similarly Situated v. Jan-Care Ambulance, Inc., U.S. District Court Chief Judge Frank W. Volk, United States District Court for Southern District of West Virginia, partially granted Company’s motion to dismiss PA state law claims against the WV based company, unless EMTs in their Complaint stated they regularly responded into PA. EMT Robert Sovine has met that requirement; EMT Daniel Fox needs to refile his complaint. The lawsuit will now proceed with pre-trial discovery about FLSA – interrupted sleep and shift differential premiums. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmwWDswf%2FyfkgPyip6VS0cDWpWwpvHNfVEfbuP6bmDGomWWWRX0Ufxoes%2FPslB3S6PX9NV7eOjHrVnzZJYNtoh0E%3D?utm_medium=email&_hsenc=p2ANqtz--Q5-zUfHtAae_7brt-BPUOknX_2kWtg7ggG2Ns0WUhsWss6pJixlwIFz2YiAn3Gomhhu6vVBkR2r-IsrShAW9NE10b9Q&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT WROTE:
“Mr. Fox is an emergency medical technician (‘EMT’) employed by Jan-Care since 2024…. From June 2012 through July 2025, Mr. Sovine was likewise employed as a Jan-Care EMT…. Plaintiffs' First Amended Complaint (the ‘Complaint’) alleges Jan-Care employed Plaintiffs as EMTs in West Virginia, Virginia, and Pennsylvania…. The Complaint specifically alleges Mr. Sovine ‘worked in Pennsylvania on two to three occasions per 24-hour shift during his employment, including in Greene, Washington, and Allegheny counties.’ …
***
[The Complaint alleges] It is Jan-Care's practice to deduct ‘3 or more hours during 24-hour shifts’ for what is referenced as its ‘sleep time’ policy…. Under this policy, Plaintiffs' time is deducted ‘regardless of whether their ‘sleep time' is on duty and/or interrupted.’ … Plaintiffs also ‘cannot enjoy an uninterrupted night's sleep’ during their shifts and are ‘required to remain on Jan-Care's premises, remain on call, monitor phones and pagers for calls that come in, respond to calls, and otherwise continue performing their regular job duties during their ‘sleep time.' … The Complaint alleges ‘Jan-Care improperly deducted ‘sleep time' from Fox that he actually spent performing compensable work, which resulted in him not being paid at least 1.5 times his regular rate of pay for the hours he worked over 40 in a workweek during that pay period.’ In addition to the sleep time policy, the Complaint also describes Jan-Care's shift differential pay scheme and incentive pay for good attendance that it otherwise ‘excludes from [Plaintiffs'] regular rates of pay for overtime purposes during workweeks the shift differentials are earned and the Hourly Employees work in excess of 40 hours.’ …. Simply put, rather than distributing overtime based on the shift differential premiums, Jan-Care pays overtime according to an employee's base rate.”
Legal lesson learned: Case will now proceed; see FLSA instructions on “sleep time.”
Note: Code of Federal Regulations: § 785.22 Duty of 24 hours or more. https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-B/part-785/subpart-C/subject-group-ECFRecc40629d2c64c8/section-785.22
“General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked….
“Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).)”
FLSA Hours Worked Advisor. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER44.asp
“Your employee's sleep time is probably not hours worked.
If your employee is able to get five or more hours of sleep, the sleep time is not considered hour worked. However, you can only deduct the actual number of hours spent sleeping, up to a maximum of eight hours. For example, if your employee receives six hours of sleep, you can only deduct six hours for sleeping from the work period. This determination is made on the basis of what happens during each sleep period.”
See FLSA instructions on sleep time (July 2008). https://www.dol.gov/agencies/whd/fact-sheets/22-flsa-hours-worked .
“Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.”
Chap. 12 – Drug-Free Workplace, inc. Recovery
FL: FF WITH STATE MJ CARD - ANXIETY – BUT VIOL. OF CBA
On July 29, 2026, in Hillsborough County v. Angelo Giambrone, the District Court of Appeal of Florida, Second District, held (3 to 0) that trial court improperly ordered the County to accommodate the firefighter/ paramedic, who was issued a state marijuana card for his anxiety and insomnia. He tested positive in random drug test on February 26, 2019, and has been suspended without pay. He testified that, during the time he was actively employed, he smoked "a half a joint to a joint two to three times a day." https://flcourts-media.flcourts.gov/content/download/2492932/opinion/Opinion_2025-0115.pdf
THE COURT WROTE:
“The trial court determined that medical marijuana is ‘considered a prescription or akin to a prescription, as it is an order for drugs written by a licensed doctor . . . [and] nowhere in [the CBA] is medical marijuana enumerated as distinct from all other prescribed medications.’ As the County correctly argues, the trial court reversibly erred in so concluding, and that error permeates the order on review…. Treating this provision as a ‘broad definition’ that ‘encompasses medications authorized under federal or Florida law,’ the trial court ultimately concluded that medical marijuana is a medication authorized for general distribution because Florida has ‘over 880 thousand [medical marijuana] patients’ and ‘over 650 retail stores to distribute medical marijuana.’ As we will explain, marijuana is neither a medication ‘obtained pursuant to a prescription as defined by s[ection] 893.02,’ nor one that is authorized by ‘federal or state law for general distribution and use without a prescription.’ … In sum, the trial court's conclusion that the County was contractually obligated to treat a positive test as negative rests on a premise that is wholly unsupported and is in fact contradicted by the CBA's text. Judgment cannot be sustained on a judicial rewriting of unambiguous definitions…. The better reading—and the one consistent with the statute's plain text and structure—is that the legislature preserved an employer's discretion to refuse accommodation of medical marijuana at all in the workplace and separately preserved an employer's discretion to refuse accommodation for an employee working under the influence…. The trial court's countywide, prospective command that the County must ‘provide an accommodation’ to any employee who produces a medical marijuana card after testing positive is not statutory interpretation; it is policymaking of the most direct kind. And it is absolutely forbidden by our constitution.”
Legal lesson learned: The CBA was negotiated prior to Florida authorizing medical marijuana; hopefully a future CBA will address when firefighters can use marijuana for medical reasons.
Note: See this Aug. 6, 2026 article. Medical Marijuana Is Legal in FL. Why Is A Paramedic Being Punished? … Giambrone plans to appeal the decision to the Florida Supreme Court, his attorney Michael Minardi said. https://www.jems.com/ems-management/medical-marijuana-is-legal-in-fl-why-is-a-paramedic-being-punished/?utm_source=fe_daily_newsletter&utm_medium=email&utm_campaign=2026-8-6&oly_enc_id=0573H1103045H2E
Chap. 13 – EMS, incl. Community Paramedicine, COVID-1
KS: PT WELFARE CHECK – ARRESTED ON WARRANT
On August 21, 2026, in State of Kansas v. Nicole Willard, the Supreme Court of Kansas held 96 to 1) that the trial court properly denied her motion to suppress since fire & EMS responded to call for unconscious person under a bridge. The Court of Appeals improperly held (2 to 1) that she was “seized” because police when she revealed her name to firefighters police ran a warrant check. A search after her arrest on the warrant revealed plastic bag of methamphetamine (18 months’ probation). https://cases.justia.com/kansas/supreme-court/2026-125812.pdf?ts=1787323095
THE COURT WROTE:
“On May 13, 2021, Captain Ian Arndt of the Hutchinson Fire Department and two other firefighters responded to a civilian's call there was an unconscious person under a bridge. When they arrived, they found a person lying under a bridge and not moving. Captain Arndt shook her awake. Once awake, she did not want to provide any information and turned down any care. She eventually told the firefighters her name was Nicole Willard. Three to five minutes after the firefighters arrived, Sergeant Cole Long arrived on the scene in response to a request for a ‘welfare check.’ Sergeant Long's bodycam footage shows Willard sitting against the bridge wall with three firefighters around her in a semi-circle. Willard told Long that the firefighters would not let her call her friend. The firefighters told Willard her phone was behind her, and she could call whoever she wanted. She asked the firefighters to call Christopher Shane Douglas; the firefighters handed her the phone and she made the call herself…. Long responded ‘she's got a warrant, so.’ A second officer arrived, and three minutes later, Long told Willard there was a warrant out for her arrest and took her into custody. Officers performed a search at the jail and located a plastic baggie containing methamphetamine. The State charged Willard with possession of paraphernalia and possession of methamphetamine.
***
In some instances, an encounter described as a public safety or welfare encounter does not rise to the level of a seizure because a reasonable person would understand they can end an encounter. In that case, the official's engagement with a civilian for safety purposes is simply a voluntary encounter that does not violate the Fourth Amendment. … We agree with this assessment and move on to consider whether all of the circumstances, including the actions of the firefighters and EMTs, communicated to a reasonable person in Willard's position that she was free to end the encounter. We conclude they did…. Because Willard was never seized, the district court made no error in denying her motion to suppress. Willard has not claimed that the warrant check or the search incident to arrest, on their own, constituted an unlawful search or seizure. She argued only that the unlawful seizure facilitated the warrant check, which facilitated the arrest and the eventual search. Because we reject that premise, her argument fails.”
Dissent: “Because the officials continued Willard's welfare-based seizure and used it to facilitate a warrant check after the record disclosed no remaining welfare need, transportation-related safety concern, or reasonable suspicion of criminal activity, discovery of the warrant and resulting search were fruits of the unlawful detention.”
Legal lesson learned: Welfare checks can result in lawful arrests if wanted on a warrant.
Chap. 13 – EMS, incl. Community Paramedicine, COVID-19
OH: CHILD SEIZURES – PARENTS COMPLAIN - PD WITH EMS
On August 7, 2026, in Timothy W. Kovach, et al. v. City of Lakewood, Ohio, et al., U.S. District Court Judge Charles E. Fleming, United States District Court for the Northern District of Ohio, dismissed the lawsuit by parents of three-year old child who suffers from seizures. Their repeated complaints about EMS conduct in administering medications led the Fire Chief to issue a Directive that Lakewood PD will be requested to accompany PD to their home and during transport. https://cases.justia.com/federal/district-courts/ohio/ohndce/1:2024cv01780/310775/29/0.pdf?ts=1786388028
THE COURT WROTE:
“Plaintiffs Timothy Kovach and Ashley Ziganti (‘Plaintiffs’) are spouses and the parents of three minor children, including EK-Z who suffers from seizures…. After moving to Lakewood, Ohio, Plaintiffs called 911 to request emergency assistance from the Emergency Medical Services of Lakewood (‘EMS’) for EK-Z's seizures on the five occasions at issue: February 13, 2022, July 20, 2022, October 12, 2022, December 30, 2022, and August 30, 2023.
***
[February 13, 2022 run} EMS personnel administered 2.5 mg of midazolam (‘Versed’) to EK-Z, who was three years old and weighed 35 pounds at the time…. Plaintiffs allege that on February 13, 2022, 2.5 mg of Versed was listed as an adult dosage in the regional EMS protocols (‘Regional Protocols’)… instead of the 1.6 mg dose for a minor of 35 pounds Plaintiff had interpreted the Regional Protocols to recommend…. Assistant Law Director Jennifer Swallow (‘Swallow’) emailed Plaintiffs that Dr. Lally, the Medical Director of the Lakewood Division of Fire, reviewed the run reports for the incidents that Plaintiffs raised and found that ‘all medications administered were within protocol and within proper dosing ranges for a child the age and weight of [Plaintiffs'] daughter.’
***
On July 20, 2022, EK-Z suffered another seizure, prompting Plaintiffs to call 911 for EMS services…. After that EMS run, in an August 12, 2022 email, [Assistant Law Director Jennifer] Swallow ‘accused Plaintiffs of ‘refus[ing] to allow paramedics to provide any pre-medical care to [their] daughter, resulting in her seizing for the entire trip to Metro Health'” hospital. Swallow emailed Plaintiffs:
[I]f you call 911 for transport of your daughter due to a seizure, all regular protocol will be implemented and she will be treated for her seizure and any other emergent symptoms. Not only does failure to treat your daughter put her at risk, but it also places our EMS staff at risk for failure to act in such circumstances.
***
The “Dunphy Directive”
On August 30, 2022, [Fire Chief Timothy] Dunphy emailed Swallow, Assistant Fire Chief Nicholas Sambula (‘Sambula’), and members of the Lakewood Fire Department…. In that email, Dunphy stated Lakewood police would accompany EMS on future calls to Plaintiffs' residence ‘‘to allow for [them] to do [their] job[,]'’ including ‘riding to the hospital with the medic in the back if needed.’ … The Dunphy Directive also advised EMS personnel to ‘consider having the parents ride upfront, especially when rendering patient care.’ … The Dunphy Directive concluded with informing EMS that they can’feel free to have LPD assist in anyway’ and that ‘if the parents refuse medical treatment, we will have them sign a refusal form and still transport the patient.’
***
On October 12, 2022, EK-Z had her next seizure, prompting Plaintiffs to call 911 for EMS services…. Two police officers accompanied EMS personnel to respond to Plaintiffs' 911 call…. On December 30, 2022, Plaintiffs called 911 for another medical emergency…. Upon arrival, EMS personnel examined EK-Z and determined that EK-Z did not require treatment or transportation…. During that run, police officers accompanied EMS personnel to the residence but did not enter. On August 30, 2023, EK-Z had another seizure, which prompted Plaintiffs to call 911, but Plaintiff Ziganti ‘requested that police not accompany EMS to the residence.’… None of the police officers entered the residence or ‘detained or threatened to detain or took any law enforcement action against Plaintiffs.’… Between October 6, 2023 and March 19, 2024, Plaintiffs have, through their attorney, attempted to secure a rescission of the Dunphy Directive…. Plaintiffs, with one exception [footnote 2]. have since chosen not to call 911 for EMS services when EK-Z seizes….Instead, Plaintiff Kovach uses his own car to drive EK-Z to the hospital. [Footnote 2: That one exception occurred in November 2023, when EK-Z seized while at physical therapy in Westlake, Ohio; Police officers did not accompany Westlake emergency services while EK-Z was transported to the hospital.]
***
Accordingly, absent allegations of a sufficient adverse action, Plaintiffs have not pled a First Amendment retaliation claim against Defendants. Plaintiffs' claims must be dismissed on this reason alone. But even if Plaintiffs adequately pled a First Amendment retaliation claim against Defendants, Plaintiffs claims still fail. Plaintiffs have not pled sufficient facts to infer a retaliatory motive as to Dr. Lally, nor overcome qualified immunity as to Dunphy.”
Legal lesson learned: The Fire Department wisely had police accompany EMS on these complaining parents.
Chap. 14 – Physical Fitness, incl. Heart Health
VA: RECRUIT DEATH – HEAT INDEX 116 / HIGH HEART RATE
On July 30, 2026, in Estate of Ian Strickler, by Stephanie Fiandaca-Strickler, Administrator of Estate v. Frederick County, et al., U.S. District Court Judge Jasmine H. Yoon, United States District Court for Western District of Virginia, Harrisonburg Division, denied the defense motion to dismiss. Ian Stricker, a 35-year-old recruit died during first day of fitness training of Recruit Class 14 on July 5, 2023. By 8:34 a.m., the heat index reached approximately 110°F.; Lead instructor, Lt. Kyle Ritter, a former United States Marine, allegedly dismissed the concern of fellow instructor that Strickler's heart was beating above 100 percent of his maximum rate. At approximately 9:12 a.m. the heat index was now between 116°F and 124°F, Stricker collapsed. “He was transported to Winchester Medical Center at 9:30 a.m. and suffered cardiac arrest en route…. His body temperature was recorded at 104°F…. Resuscitation was terminated at 9:52 a.m., and Strickler was pronounced dead. “Plaintiff adequately pleaded failure to train liability for Frederick County.” The Court held: “Defendants argue that Plaintiff alleges only ‘negligently inflicted harm on Strickler during the new recruit program,’ and therefore fails to allege a constitutional violation by Ritter that ‘shocks the conscience.’ … But the court is not persuaded by Defendants' argument. Plaintiff plausibly alleges that Ritter intended to injure Strickler and other recruits through his training program.” https://cases.justia.com/federal/district-courts/virginia/vawdce/5:2025cv00063/135495/23/0.pdf?ts=1785772612
THE COURT WROTE:
“Sometime prior to 2016, then-Fire Chief Dennis Linaburg and Deputy Chief Keith Jenkins devised a plan to turn FCFR's recruit school into a ‘paramilitary’ school, ‘designed to transform firefighters into soldiers when deployed to the field.’ … To do so, Deputy Chief Jenkins recruited Lieutenant Kyle Ritter, a former United States Marine, as a training instructor…. Ritter was selected solely ‘because of his prior military service,’… and was not certified to lead physical training.”
***
[On Jul5, 2023 at] approximately 8:30 a.m., the recruits were bused to FCFR's Public Safety Building, and Ritter directed the recruits to put on heart rate sensors, which linked their heart rates to an iPad monitored by [Instructor] Toler…. When Strickler strapped his sensor on at 8:34 a.m., his heart rate already registered at or slightly above 184 beats per minute…. This was virtually Strickler's maximum heart rate, exceeding his recommended ceiling of 167 beats per minute…. During the break, Toler informed Strickler about his heart rate, which had not dropped below 195 beats per minute…. She did not tell Strickler that his readings were dangerous, but asked only whether he felt lightheaded, nauseated, or in pain…. Strickler said he did not…. Toler then showed the readings to Ritter and told him Strickler's heart was beating above 100 percent of his maximum rate…. Ritter dismissed her concerns and lined the recruits up for bear crawls, despite having witnessed at least two cardiac events in prior trainings.
***
First, as discussed above, Plaintiff plausibly alleged that Ritter violated Strickler's constitutional rights. Second, Plaintiff alleges ‘that policymakers were aware of, and acquiesced in, a pattern of constitutional violations.’… The complaint includes allegations that Ritter [Lieutenant Kyle Ritter, a former United States Marine, was recruited in 2016 as a training instructor] intentionally caused over a dozen injuries, including two cardiac emergencies …; that Ritter methodically hazed recruits … ; that a female recruit sustained so many injuries that Ritter was warned to stop documenting injuries or lose his position … ; that Ritter threatened to ‘fuck [a recruit] up,’ …; and that a lieutenant warned Ritter that he was endangering recruits' lives…. Plaintiff also alleges that Fire Chief Majchrzak witnessed and approved of Ritter's physical training methods, despite these injuries …. ; that the Deputy Fire Chief, when told that recruits' lives were at risk, stated that he ‘stood by [his] marine,’ … and that senior leadership encouraged Ritter to stop generating a paper trail of injuries …. At the pleading stage, this sufficiently alleges ‘deliberate indifference’ to the individuals that Ritter trained. See Brown v. Mitchell, 308 F.Supp.2d 682, 703 (E.D. Va. 2004) (collecting cases showing that ‘if the supervisory power is actually aware of the fact that its subordinates are regularly violating constitutional or statutory rights, and the supervisory power fails to implement a training program to quell this pattern, deliberate indifference exists.’).”
Legal lesson learned: Strenuous recruit training with heat index between 116°F and 124°F can lead to tragic results; case will now proceed to pre-trial discovery.
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
CA: FIRE MAR – FIRED – DIDN’T CLAIM “WHISLEBLOWER”
On August 26, 2026, in Orlando Arriola v. City of Oakland, the California Court of Appeals, First District, Fourth Division held (3 to 0; unpublished decision) that trial court properly dismissed his lawsuit since he sued under Fair Employment and Housing Act (discrimination) and no proof his race or age was the reason for termination. Not clear why he didn’t file a claim of violation of whistleblower protections under Labor Code section 1102.5. In April 2019 he began working as an Oakland Fire Marshal, and in May he “initiated an administrative investigation” about deficiencies in the Fire Marshal’s Office, and in December 2021 he was summoned by the Alameda County District Attorney’s Office to testify before a grand jury. “Thereafter, Fire Chief through the Chief-of-Staff attempted order [Arriola] to provide a detailed report of his presentation before the Grand Jury, which [Arriola] had to decline given the confidentiality he had as a witness as well as his agreement with the Alameda County District Attorney’s Office.” He resigned in lieu of termination on February 4, 2022. https://www4.courts.ca.gov/opinions/nonpub/A174302.PDF
THE COURT WROTE:
“Arriola alleged that the defendants in the case, including respondent City of
Oakland, retaliated against him because of his engagement in FEHA-protected activities when, as a City of Oakland Fire Marshal, he investigated into and reported about certain matters, testified before a grand jury, and would not tell his superior the content of his testimony. He appeals on the ground that he brought valid FEHA claims and that he deserves the opportunity to at least conduct discovery…. Arriola does not show that the City took any adverse actions against him because he engaged in FEHA-protected activities [Fair Employment and Housing Act]. Accordingly, we will affirm. The gist of Arriola’s SAC is that he was pushed out of his Fire Marshal position with the OFD after preparing an investigative report about certain OFD matters, testifying before a grand jury about the OFD, and refusing to tell his superior about the content of his testimony.
***
In support, he characterizes his allegations as that ‘Respondents intentionally retaliated against Arriola because he provided a report of information regarding division weaknesses, opportunities for improvement and support and attention needs of the facility. Furthermore, the retaliation increased when Mr. Arriola adhered to being called a witness for a grand jury regarding his report. Most notably, the retaliation worsened when [Arriola] refused to share his testimony with Respondents, which he has the legal right to do as there is no law or protocol that requires Mr. Arriola share confidential statements with anyone but those within the Court. This caused an eruption of retaliatory acts.’
Arriola’s claim of error is unpersuasive. He simply repeats what the trial court—and we—find to be conclusory and insufficient contentions in his SAC of the City’s alleged retaliation for his ‘whistleblower’ activities, without ever alleging how the City’s actions violated FEHA…. None of these alleged activities involve protected activities. Therefore, his appeal fails. [Footnote 2: Arriola’s contentions are more akin to a claim of retaliation for whistleblower activity under Labor Code section 1102.5, subdivision (b), but he did not base any of his claims on that statute or argue its application below, nor does he argue its application on appeal. Therefore, we do not discuss it further, or express any view on whether such a claim would have been viable.]”
Legal lesson learned: The former Fire Marshall should have filed under CA whistleblower law.
Note: CA Labor Code 1102.5: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB§ionNum=1102.5
(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
MD: 46-YR RECRUIT – FIRED - POOR PERFORM / WELL DOC
On August 20, 2026, in Robert D. Whittaker III v. Howard County, Mayland and Howard County Fire And Rescue Services, the United States Court of Appeals, Fourth Circuit (Richmond, VA) held (3 to 0) that U.S. Magistrate Judge properly granted summary judgment for Howard County; it was well documented that he was fired shortly before graduation for insubordination and poor performance. https://www.ca4.uscourts.gov/opinions/232019.U.pdf
THE COURT WROTE:
“Robert Whittaker was selected by the Howard County Department of Fire and
Rescue Services (the ‘Department’) to participate in its training academy. At age 46, he
was the oldest trainee in his class. Whittaker advanced through the Department’s training
academy (the ‘Academy’) but was terminated just before graduation. That termination
was based on Whittaker’s insubordination and poor performance at the Academy.
***
The Department asserts that Whittaker was not meeting their legitimate expectations
based on the record evidence of Whittaker’s poor performance and insubordination….
After reviewing the record, we agree. Counseling Reports and emails show that in the two months before his termination, Whittaker was made aware of staff concerns about his performance in core firefighting skills, including his trouble navigating mazes, hesitancy during ladder exercises, and lack of fireground speed…. Contemporaneously prepared internal memoranda and emails further note the same performance issues and raise concerns about his insubordination, detailing incidents where he talked back to instructors … and became ‘frustrated and insubordinate’ under stress or when asked to complete tasks in real life scenarios… The insubordination alone is a legitimate, nondiscriminatory basis for termination as an employee is not ‘meeting [his] employer’s legitimate expectation if [he] was insubordinate.’ Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 478 (7th Cir. 2010). But taking it together with the performance concerns, no reasonable jury would conclude that Whittaker was meeting the Department’s legitimate expectations.”
Legal lesson learned: Excellent documentation on poor performance.
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
TN: EXPLORER PROG - 60YR VOL RAPES 16YR – PRISON
On August 18, 2026, in State of Tennessee v. Anthony Lawrence Johnson, the Court of Criminal Appeals of Tennessee, held (3 to 0) that the defendant was properly convicted by jury. “The victim testified that she met Defendant during the summer of 2021, while she was a student at Johnson County High School. She participated in ‘the Explorer program,’ which allowed students to volunteer with the rescue squad and ‘ride along and help out with the EMTs and paramedics.’ Her career goal was to work in ‘the medical field.’ The victim was sixteen years old at the time. The victim met Defendant, who was sixty years old, because he was a volunteer with the rescue squad. In June of 2021, Defendant asked the victim if she wanted a job caring for his horses.” “The court imposed an effective sentence of eleven years to be served at 100 percent.” https://cases.justia.com/tennessee/court-of-criminal-appeals/2026-e2025-00835-cca-r3-cd.pdf?ts=1787176489
THE COURT WROTE:
“In June of 2021, Defendant asked the victim if she wanted a job caring for his horses.
The victim had an interview with Kerri Kennedy, Defendant’s live-in girlfriend, who
owned the horses. Ms. Kennedy hired the victim to work with the horses. The victim
described her duties, which included feeding the horses two to three times a day, training and riding them, and grooming them. She sometimes purchased supplies for the horses using Defendant’s debit card. Defendant paid her cash for her work.
***
On July 23, 2021, the victim went upstairs to clean a bedroom, and Defendant
entered the room while she was cleaning. Defendant pushed her onto the bed and pulled down her pants and panties. She testified he ‘put his tongue and hands in [her] vagina.’ The victim asked him to stop ‘multiple times’ and Defendant ‘kept on going.’ Defendant only stopped when the victim kicked him in the shoulder. She testified, ‘When I kicked him, it pushed him back pretty good, and I went back downstairs and I left after that.’ The victim ‘went home and maybe thought it was a mistake.’ She planned to return to work the next morning, but she was ‘[a] little bit’ scared to go back to Defendant’s house. She was ‘not feeling good after the day before that with what he had done.
***
[On July 24, 2021] the victim got on the elevator to go upstairs to get a bottle of water.
As she got onto the elevator to go back downstairs to feed the horses, Defendant followed her onto the elevator and stopped it. He pulled down her pants and panties and again ‘put his mouth and fingers back in [her].’ The victim testified it was painful and she again told Defendant to stop multiple times. Defendant’s hands were behind her thighs, and she was ‘pinned up against the wall in the corner.’ She testified, ‘with him pushing pressure on my legs, it was hard for me to go anywhere.’ She was holding a water bottle in one hand and her phone in the other. She testified, ‘I don’t know why I took a picture, but I took a picture of him doing it just – I guess just to have to – if any – if I felt like I needed to say something.’ The photo the victim took with her phone was introduced as an exhibit.”
Legal lesson learned: Explorer programs need strict rule – no personal interaction with participants.
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
OH: CHIEF FIRED W/O HEARING – CITY MGR NO IMMUNITY
On August 13, 2926, in Michael Washington v. City of Cincinnati, the United States Court of Appeals for Sixth Circuit held (2 to 1) that the trial court judge properly held that the City Manager was not entitled to qualified immunity for pre-deprivation violations of Washington’s procedural due process rights, and that she was not entitled to statutory immunity for the defamation claim. The case will now proceed to trial. https://files.constantcontact.com/c0e462b4101/e141b674-435b-44eb-8111-03664eafd509.pdf
THE COURT WROTE:
“This procedural due process case concerns the discharge of a public employee by a government official. Michael Washington, a longtime employee of the Cincinnati Fire Department, was promoted to Fire Chief in 2021. Around two years later, he was terminated from this position with no opportunity for a pretermination hearing. Washington sued the City of Cincinnati and the City Manager, Sheryl Long, for
violations of his federal and state procedural due process rights, as well as defamation under Ohio state law. At summary judgment, the district court held that Long was not entitled to qualified immunity for pre-deprivation violations of Washington’s procedural due process rights, and that she was not entitled to statutory immunity for the defamation claim. Long and the City filed this interlocutory appeal challenging both denials of immunity. For the following reasons, we AFFIRM.
***
Washington began working for the City of Cincinnati Fire Department in 1993. In May
2021, he was promoted to Fire Chief. The Cincinnati City Charter (the “Charter”), per a 2001 amendment, contains the following language governing the Fire Chief position:
The positions of fire chief and assistant fire chief shall be in the unclassified civil
service of the city and exempt from all competitive examination requirements. . . .
The fire chief may be removed at any time by the city manager. After the fire
chief has served six months, he or she shall be subject to removal only for cause
including incompetency, inefficiency, dishonesty, insubordination, unsatisfactory
performance, any other failure of good behavior, any other acts of misfeasance,
malfeasance, or nonfeasance in office, or conviction of any felony. If removed
for cause the fire chief may demand written charges and the right to be heard
thereon before the city manager. Pending the completion of such hearing the city
manager may suspend the fire chief from office.
Charter of the City of Cincinnati, Art. V, § 6.
When Washington was promoted to Fire Chief, he signed a memorandum titled ‘Understanding of Unclassified Appointment’ (the ‘MOU’), which provides, in full, as follows:
The position of Fire Chief is an unclassified position.
Employees accepting employment in unclassified positions serve at the pleasure
of the appointing authority and can be dismissed from employment without cause
at any time. In addition, unclassified employees are not recognized under the
Civil Service system and are, therefore, not afforded civil service protections
and/or hearings granted to classified employees. In accepting unclassified
appointments, employees forfeit the right to seek other employment via lateral
transfers and the opportunity to take competitive, promotional exams.
By signing below, I, Michael A. Washington, Sr., understand that the position of
Fire Chief, which I am accepting, is an unclassified position and that I have read
and understand the explanation of unclassified positions detailed in this
document.
On March 24, 2023, Washington was called to a meeting at City Hall, where Long,
accompanied by two Human Resources representatives, told him that he was being terminated, effective immediately. Long then handed him a termination letter. The letter began with an excerpt of the Charter language providing that ‘[a]fter the fire chief has served six months, he or she shall be subject to removal only for cause,’ then provided five reasons for Washington’s termination: (1) poor workplace culture under his leadership, (2) that he was absent from a high-rise fire, (3) that he mishandled personnel matters when a lieutenant was charged with assault, (4) that he mismanaged the acquisition of a new training facility, and (5) ineffective communication with Long and others. After the meeting, Long informed the Mayor and members of the City Council that Washington had been terminated for cause, listing her reasons for terminating him in a memorandum titled ‘For Your Information.’ On the same day, Long notified local media outlets of Washington’s termination by providing a copy of the termination letter and making statements in interviews consistent with the letter and memorandum. Washington subsequently requested a post-termination hearing before a neutral decisionmaker,
and Long and the City responded by offering him a hearing before Long. No post-termination hearing took place.
***
For all these reasons, a reasonable official in Long’s position (a) would have known that
Washington, in his position as Fire Chief under the Charter, accrued for-cause protection
following his six-month probationary period; and (b) would not have presumed the MOU
operated as a waiver of the rights afforded by that status. Long’s failure to provide Washington with any pre-termination process before firing him on March 24, 2023, was a violation of clearly established law.”
DISSENT (Circuit Judge Chad Readler)
“Washington signed a document that indicated he was an unclassified employee, provided for no property right in his employment, and allowed for his immediate termination. Because it was far from clearly established that Long could not immediately terminate Washington’s employment under these circumstances, she is entitled to qualified immunity.”
Legal lesson learned: When the City Charter provides that Fire Chiefs and Assistant Chiefs, after having served six months, can only be fired for cause, then City must provide pre-termination hearing.
Note: This is an important decision that will impact Ohio and other municipalities in the 6th Circuit (Ohio, Kentucky, Michigan, Tennessee). The Ohio Municipal League warned cities in Ohio:
“SIXTH CIRCUIT DECISION RAISES QUALIFIED IMMUNITY CONCERNS. Aug. 27, 2026. https://omlohio.org/m/newsflash/home/detail/52
“Why Does It Matter for Municipalities?
If the decision stands, OML is concerned it could make it easier for plaintiffs to overcome qualified immunity in due process cases, increasing potential legal exposure for municipal officials throughout Ohio and the Sixth Circuit. The case also provides a practical reminder that before terminating an appointed official or other employee, municipalities should review their charter, ordinances, employment agreements and policies to determine whether ‘for cause’ protections or other provisions trigger constitutional due process requirements.
OML Supporting Further Review
Because of the broader implications for municipalities, OML intends to participate in an amicus brief supporting a request for the full Sixth Circuit to rehear the qualified-immunity portion of the case. OML believes established precedent requires a sufficiently particularized showing that an official's conduct violated clearly established law before qualified immunity can be denied.”
Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing
NC: CAPTAIN’S SOCIAL MEDIA POSTS – 3 WARNINGS - FIRED
On August 10, 2026, in Dustin Robert Jones v. The City of Greensboro and Greensboro Fire Department, U.S. District Court Judge Thomas D. Schroeder, United States District Court for the Middle District of North Carolina, granted the City’s motion for summary judgment. Applying the “balancing test” of U.S. Supreme Court (Pickering v. Board of Education, 1968; https://www.oyez.org/cases/1967/510 ), the City reasonably perceived Jones's continued posting as insubordinate. “A public employee's interest in speaking on matters of public concern ‘does not require that a public employer tolerate associated behavior that it reasonably believed was disruptive and insubordinate.'” https://cases.justia.com/federal/district-courts/north-carolina/ncmdce/1:2024cv00450/98804/21/0.pdf?ts=1743522862
THE COURT WROTE:
“The record demonstrates that Jones received three coaching sessions in which supervisors expressed disapproval of his posts…. Though his post regarding Tyre Nichols was ‘just within policy,’ Chief Robinson cautioned Jones at the third session to ‘be careful.’ …. Chief Robinson's handwritten notes from this meeting further indicate that he ‘ask[ed] [Jones] to stop with the post[s] that could be viewed as offensive.’ … Indeed, Jones himself understood from the coaching sessions with GFD leadership that his ‘employment could be threatened’ if he continued posting controversial political speech to his social media…. Yet, as Jones's counsel conceded at the hearing, his subsequent posts continued to test the boundary of acceptability within the GFD's policy, and he crossed the line with, at minimum, the repost stating: ‘IF I'VE EVER OFFENDED YOU, I'M SORRY . . . THAT YOU'RE A LITTLE BITCH.’
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Jones's leadership position [as Captain] exacerbated the potential disruption caused by his posts. ‘The expressive activities of a highly placed supervisory employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.” Id. (citation modified) (quoting McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997)). And here, according to Chief Robinson, captains ‘set the standard’ within the GFD…. Thus, as a captain, Jones was ‘responsible for ensuring implementation of the GFD's policy and mission…. Yet as noted, according to one battalion chief, personnel throughout the GFD knew that Jones had been ‘coached’ on his ‘offensive posts’ but continued posting, thereby creating a perception of public defiance.”
Legal lesson learned: Social media posts can lead to termination.
Note: His posts included:
2021: Photograph of the interior of the private residence and noted, “Just an example of some of our ‘working conditions' ... from our job last night.”
Nov. 2022: Reposted a Facebook video of Guilford County Sheriff Danny Rogers dancing at the North Carolina A&T State University homecoming parade, on which Jones commented, “This is the clown in charge of keeping you safe. Freaking Joke.” … The original poster had previously commented, “When yo[ur] Sherrif [sic] is black.”
Feb. 2023: Following the killing of Tyre Nichols by Memphis police, Jones shared the headline of a related FOX8 WGHP news article and commented, “will we see another George Floyd reaction? Will city's [sic] burn??? ALL LIVES MATTER.”
Jones also posted a screenshot from Wikipedia around the same time, which read in part: “Freedom of speech is a principle that supports the freedom of an individual or community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction.
Over the next several months, Jones continued posting controversial material to his Facebook page. These posts included the following:
A photograph of a keychain stating, “IF I'VE EVER OFFENDED YOU, I'M SORRY . . . THAT YOU'RE A LITTLE BITCH,” with Jones adding, “[‘]Bout right .....”
“Straight Pride. it's Natural, it's Worked for Thousands of years, and you Can Make Babies.”
“IF THIS IS A WOMAN,” (superimposed on a photograph of Rachel Levine, United States Assistant Secretary for Health during the COVID-19 pandemic) “THIS IS A FISHING POLE” (superimposed on a photograph of an assault rifle).
“You know what's insane .... A white person can paint their [sic] face black and be accused of being a racist. Yet a man can dress as a woman and be called a hero ......”; this post, dated April 25, 2023, was accompanied by a definition of blackface from Wikipedia.
“I identify as invisible. I'm TRANSparent .... My pronouns are who/where?” This post was also made on April 25, 2023.
Chap. 17: Arbitration, incl. Mediation, Labor Relations
OR: LEAD MEDIC FIRED – NO UNION CONSPIR WITH CEO
On August 26, 2026, in Samantha Ward v. Morrow County Health District, a local government body, Emily Roberts, and Oregon AFSCME Council 75, a nonprofit entity, U.S. Magistrate Judge Andew Hallman, United States District Court of Oregon, Pendleton Division, granted the motion of AFSCME to be dismissed from the lawsuit; there is no proof that Emily Roberts, CEO of the Health District fired the plaintiff in a conspiracy with the union. The plaintiff was hired as Lead Paramedic for the Irrigon, Oregon station on March 18, 2024; discussions regarding paramedics unionizing were ongoing and involved consideration of alternative union representation, including the International Association of Fire Fighters (“IAFF”), of which Plaintiff was a member, and AFSCME. In December 2024, Plaintiff attended a meeting in which CEO Emily Reynolds indicated that AFSCME intended to incorporate paramedics into AFSCME's existing union contract with MCHD and that MCHD did not plan to oppose the incorporation. “Reynolds advised Plaintiff not to express a preference for which union to join based on Plaintiff's paramedic lead position.” On January 29, 2025, MCHD terminated Plaintiff at Reynolds' direction; encouraging medics to join IAFF. https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmzw1MjNfE42lsGXHo5QuLwzGO9v5LOxlzP%2Bh0pvh6sGa84MuJU1YBVqK1ekaBZuy%2F7iVYOwp0Zv%2FyO%2BM%2FzbRTYc%3D?utm_medium=email&_hsenc=p2ANqtz-8yXGd80l_LUWaAnsmB3JMO2ESWYuMTqNd3smnS9LzfREYFdHkYx-1YqdQDmvXovN_D03neIMXoYWANJifdITEhWzlhbw&_hsmi=226712652&utm_content=226712652&utm_source=hs_email
THE COURT WROTE:
“At some point between January 24 and January 29, 2025, Wolford Davis spoke with Reynolds about MCHD's paramedics not yet voting to join AFSCME and expressed that Plaintiff was resistant to joining AFSCME, preferring IAFF…. In a memorandum dated January 30, 2025, Reynolds recounted Wolford Davis sharing with her that MCHD employees had reported that Plaintiff continued engaging staff in dialogue regarding AFSCME, discouraged staff from paying dues, encouraged paramedics to not consider joining AFSCME, and made defamatory comments about Wolford Davis personally…. . Reynolds recounted Wolford Davis explaining that AFSCME considered Plaintiff's behavior unfair labor practices due to her paramedic lead position and that staff reported fearing Plaintiff…. Plaintiff's allegations do not show that AFSCME approved either Reynen's or Wolford Davis' conduct. The allegations do not offer evidence of a conscious affirmative choice on AFSCME's part. Rather, the allegations show merely a failure to overrule Reynen's and Wolford Davis' discretionary acts, which is not enough for Monell liability to inure to AFSCME through a ratification theory.”
Legal lesson learned: Lead paramedic violated CEOs specific instructions not to express a preference for which union to join.
Chap. 17: Arbitration, incl. Mediation, Labor Relations
WI: STATE LAW 2011 ENDED COL BARG – NOT MUN FF / PD
On July 29, 2026, in Abbotsford Education Association, et al. v. Wisconsin Employment Relations Commission, et al., the Wisconsin Court of Appeal, District II held (2 to 1) that there was a “rational basis” for the State Legislature in 2010, facing a “$3.6 billion budget shortfall” to enact Article 10 which restricted collective bargaining by most state and municipal employees, but allowed municipal firefighters and police [not fire marshals; not state fire or state police] to have collective bargaining rights. These “public safety” employees were “determined were necessary to maintain public safety in the event of labor unrest.” The majority opinion held: “While it may be easy to review the Legislature’s decision regarding which public safety employees to include in the public safety group and question why certain public safety employees, such as motor vehicle inspectors, were included in that group while Capitol Police were placed in the general employee group, or why firefighters were included in the public safety group but fire marshals were not, it is not our role to second-guess these classifications. Rather, our role is limited to determining whether any rational basis exists for the Legislature’s choice.” https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=1152252
THE COURT MAJORITY WROTE:
“This is an appeal from the circuit court’s declaratory judgment that held certain provisions of 2011 Wis. Act 10 (‘Act 10’) and 2015 Wis. Act 55 (‘Act 55’) unconstitutional and then struck those provisions.
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This is not a close case. Under these standards, we can easily locate a reason for the choices the Legislature made. We can conceive of facts for the public safety distinctions, and we can hypothesize a sound reason for why some public safety employees were not included in Act 10’s public safety group. Namely, the groups included in the public safety group were the minimum number of groups the Legislature deemed essential to perform public safety-related services, and it selected employees it determined were necessary to maintain public safety in the event of labor unrest. The fact that the Legislature did not include all employees who could be described as providing services related to public safety in the favored collective bargaining category does not render the law irrational. To the contrary, it is logical to conclude that if the Legislature’s goal was to restrict collective bargaining privileges for the largest possible number of public employees without also risking essential public safety services, the distinctions it made was in furtherance of this goal.
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The same can be said for the decision to include firefighters in the favored public safety group while excluding fire marshals—firefighters serve ‘in the trenches’ and respond to emergencies and protect lives, see WIS. STAT. §§ 40.02(48)(b)2 and 62.13(8), whereas fire marshals serve in a more investigatory capacity, see WIS. STAT. § 165.55.”
DISSENT:
“The stated purpose of ensuring public safety in the event of mass labor unrest and strikes by the excluded public safety employees also does not explain the inclusion of all local and village police forces across the state—no matter where located or how small some of those forces might be. The argument that these local forces will be necessary to maintain public safety in the dozens of remote rural counties across the state and yet exclude Capitol and UW [University of Wisconsin] police, underscores how fanciful and speculative the Legislature’s stated purpose is.”
Legal lesson learned: This case will probably be appealed to the Wisconsin Supreme Court.
Note: See this article, “Appeals court overturns ruling declaring Act 10 unconstitutional.” July 29, 2026. “If the Supreme Court were to take up the case, it’s likely a final decision wouldn’t be reached until after November’s elections and the inauguration of a new governor and start of a new legislative session in January. With Democrats hopeful they’ll be able to win trifecta control of state government, the actions of the other two branches of government could render the lawsuit moot.”
Chap. 18 – Legislation, incl. Public Records
TX: NO SURPRISE ACT – AIR AMBUL / FED. REGS SET ASIDE
On August 11, 2026, in Texas Medical Association, et al. v. United States Department of Health and Human Services, the United States Court of Appeals for Fifth Circuit (New Orleans) held in an en banc decision (all 17 Judges) set aside the Federal reimbursement rate rule for medical providers such as air ambulance companies and insurance companies. In July 2021, the agencies promulgated the so-called July Rule …. The July Rule is an interim-final rule, meaning that the agencies promulgated it without notice and comment…. Because the agencies directed insurers to include non-negotiated ghost rates, the resulting QPAs [qualifying payment amount] were artificially low. How do we know? For one, the number of arbitrations dwarfed the agencies’ expectations by a factor of 84. For two, providers prevailed in over 80% of arbitrations. And for three, arbitrators selected a reimbursement rate higher than the QPA in a whopping 85% of arbitrations. These statistics underscore that the agency’s inclusion of artificially low reimbursement rates is contrary to the statutory text.
THE COURT WROTE:
“The No Surprises Act (‘NSA’ or ‘the Act’) mitigates unexpected medical bills from out-of-network healthcare providers, especially in emergencies. The Act directs insurers and healthcare providers to negotiate reimbursement rates via an ‘independent dispute resolution process,’ 42 U.S.C. § 300gg-111(c), rather than leaving patients responsible for the (potentially staggering) full balance of their treatment. That negotiation process centers on the ‘qualifying payment amount,’ or QPA.
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Because the air ambulance business model is built on avoiding in-network contracts, we cannot say it was arbitrary or capricious to exclude them from a scheme built on in-network contracts.
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As the district court put it, the QPA serves to approximate the ‘median rate the insurer would have paid for the service if provided by an in-network provider or facility.’ But single-case agreements involve out-of-network providers’ performing emergency services that result in exorbitant, ‘surprise’ charges to unwitting patients. That the No Surprises Act would incorporate such surprise rates into the QPA makes little sense. The point of the QPA is to ‘reflect[] market rates under typical contract negotiations.’ 86 Fed. Reg. at
36,889; see also supra, Part I. Out-of-network charges for emergency care do not factor into this calculus.”
Legal lesson learned: Reimbursement rates for air ambulance companies and other medical providers is a “hot issue.” Federal agencies need to follow APA when drafting a rule, including public notice and comment period.
Note: Read this article: “The No Surprises Act: A Litigation Status Check” (Aug. 26, 2026). https://www.healthaffairs.org/content/forefront/no-surprises-act-litigation-status-check
“Nearly five years ago, President Trump signed the No Surprises Act into law, establishing new patient protections against surprise medical bills. Since the law took effect in 2022, millions of consumers have been protected from unexpected bills for out-of-network care—from emergency services to anesthesia to air ambulance rides. While the law has successfully protected consumers from the most common types of surprise out-of-network bills, its implementation has been hobbled by aggressive litigation…. The first wave of litigation began in fall 2021 beginning with six lawsuits by doctors, hospitals, and air ambulance companies across five different jurisdictions. These lawsuits are now over, but these early challenges laid the groundwork for successful follow-on challenges over the next four years—especially in the eastern district of Texas.”
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