Firefighter Wins Age Discrimination, GINA Claims

David Lee was a firefighter/EMT for the City of Moraine, Ohio Fire Department for nearly 16 years. He was also a member of Moraine Professional Firefighters Association, IAFF Local 2981.

The City and Local 2981 had been involved in discussions for years about physical standards for the job. On November 23, 2011, Lee received an email sent to all firefighters explaining: “If you are under the age of 40, you only receive a partial physical which involves a questionnaire only.” Lee was 43 at the time. Lee completed the questionnaire sent to him by the City’s doctor. Question 1(a) on the questionnaire asks: “Is there a family history of heart disease with your parents or siblings?”

On January 30, 2012, Lee was scheduled for his “full” over-40 physical with the City’s doctor. Lee asked that he be permitted to complete only those tests required of a firefighter under 40, tests that did not involve the full cardiac workup given to firefighters over 40. Lee was told that his choices were a full, over-40 physical or be deemed “Not Fit for Duty.” Lee did not take the examination.

The Fire Chief issued a direct order to Lee that he had 30 days to complete his physical consistent with the Department’s rules. Lee immediately filed a discrimination charge with the EEOC.

After an internal City appeal hearing, Lee decided that, in order to avoid losing his job, the best course of action was for him to take the physical under protest and continue to fight the policy through the EEOC. Lee scheduled his over-40 physical with the doctor’s office at their earliest date: March 30, 2012. The City nonetheless fired Lee on March 28, 2014, two days before his scheduled physical. The Department decided that Lee could not “cure insubordination by an ‘after-the-fact’ attempt at compliance” and that Moraine Fire Department did not believe that Lee’s “‘newly scheduled exam’ was anything more than another attempt to delay [his] discipline and/or continue to disrupt the operations of the Department.”

A federal court found that the City violated both the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act (GINA) in its treatment of Lee. As to the ADEA, the Court held that “the City provides copious evidence and case law that testing and histories of coronary disease are bona fide job requirements of firefighters, but offers no evidence or case law as to why it is not a bona fide job requirement for firefighters of all ages. For example, the City asserts that testing involves inevitable false positives and ‘a false positive could create additional risk to younger patients, causing them to endure additional, more invasive testing such as a stress echo with ultrasound machines or a nuclear stress test where they must endure radioactive dye injected into them.’ However, this is true of those over 40 as well. In the firefighter ‘buddy system’ the City describes, where firefighters rely upon each other in dangerous situations, the buddy of one who may have manifested a false positive is just as likely to want their buddy to undergo the invasive testing necessary to determine whether he is capable of fulfilling his buddy duties whether he is over 40 or under 40.

“The City has discriminated against Lee by requiring him to undergo job requirements not required of those under 40. While physicals are a bona fide job requirement, differentiations in physicals required of those older and younger than age 40 are not.”

Turning to GINA, the Court again faulted the City. The Court found that GINA is “clear” that an employer may not even ask an employee to provide genetic information, much less require that the employee do so. Genetic information, in turn, includes the very sort of “family medical history” demanded by the forms used by the City’s doctor.

The Court noted that “the City protests that it did not request genetic information from Lee. The City points out that the doctor added the family history of heart disease question to an OSHA questionnaire, as if this absolves the City of responsibility for the doctor’s actions. The City’s position is thwarted by GINA’s definition of ‘employer’ as a person employing a sufficient number of employees, and ‘any agent of such a person.’ The City’s position that it is not responsible for the doctor’s actions is further eroded by the City’s failure to comply with the implementing regulations that require that an employer ‘must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.’”

Because it ruled in favor of Lee on his ADEA and GINA claims, the Court set a trial date on the issue of how much damages were owed Lee by the City.

Lee v. City of Moraine Fire Department, 2015 WL 914440 (S.D. Ohio 2015).