City ignored warnings in fireman's discrimination suit

Monday May 21, 2012

PITTSFIELD -- Even before it escalated into a high-level federal lawsuit, city officials had received warning after warning: There was little doubt they were on the wrong side of employment laws that protect U.S. soldiers.

But according to documents obtained by The Eagle, former mayor James M. Ruberto and Acting Fire Chief Robert Czerwinski repeatedly ignored those warnings, delaying for years the case of firefighter Jeffery Rawson -- a Navy reservist passed over for a promotion by city officials who told him he had to choose between serving his country and working for the fire department.

That ultimatum and the decision to stand by it ended up costing city taxpayers $22,000 in back pay that eventually was awarded to Rawson, who has worked as a city firefighter for 21 years.

Employment law experts say it's difficult to imagine a more clear-cut violation of the Uniformed Services Employment and Reemployment Rights Act, which prohibits employers from discriminating against veterans who miss work because of their military service.

"Most employers aren't that stupid, but this one apparently was -- we call it a slam dunk," said Samuel F. Wright, who as a former lawyer for the U.S. Department of Labor had a hand in drafting USERRA in 1994.

Rawson lodged his first complaint with the state Civil Service Commission in September 2010, the month he was bypassed for a promotion to lieutenant in the Pittsfield Fire Department in favor of a candidate with a lower score on the promotional exam.

The case finally was settled late last month, but only after it had been taken up by the state Civil Service Com mission, the U.S. Department of Labor and finally the U.S. Department of Justice.

Rawson said he's relieved the matter has been resolved, but he said the whole ordeal has been trying.

"I don't expect you to thank me when I get home, but I don't expect you to hold it against me," said Rawson, who as a Navy intelligence officer was last deployed to Iraq for a year beginning in 2007. "I am glad this is done and it's unfortunate that all of this came down to one person's personal agenda -- everyone else [in the department] has been very supportive."

Per terms of the consent decree, Rawson has been retroactively promoted to lieutenant and has received the requisite back pay. Meanwhile, the firefighter who initially had been promoted instead of Rawson has been demoted, but is first in line for any future openings.

Training for supervisors

Czerwinski and other supervisors also are required to undergo training in federal employment laws under terms of the settlement.

Although the agreement provides for all of the remedies Rawson has sought since he first appealed the decision to bypass him, it doesn't require the city to admit any wrongdoing in failing to promote him initially.

And indeed, to this day Ruberto stands by his and Czerwinski's decision not to promote Rawson.

"The decision to bypass, I believe, had a solid foundation and had nothing to do with Mr. Rawson's service as a reservist to the United States," Ruberto told The Eagle in a recent phone interview. "I commend him for his service. But I believe the appointment that was made was made to a person who truly is an excellent performer and deserved a promotion. In fact, I add, he too, is a former veteran."

Ruberto said he regretted that he couldn't be more specific, but said he is limited by state privacy laws.

The documents obtained by The Eagle detail the city's argument, which focused not just on Rawson's military service, but on the amount of sick time he had used -- a position that ultimately was found to lack merit.

In January 2010, Ruberto issued a directive to the fire department asking Czerwinski to cut down on the use of sick leave in the department, which was resulting in high rates of overtime, raising the cost of running the department, according to the documents.

Czerwinski declined to comment for this article.

Too many sick days?

Ruberto and Czerwinski apparently had decided Raw son was an employee who, even excluding time lost to military service, called in sick too many times to be promoted.

However, the investigations by the Civil Service Com mission, the Labor Depart ment and the Justice Depart ment independently concluded that the city's real reason for bypassing Raw son was his military service.

Rawson has said the fire department had long been hostile to his military service, saying his supervisors complained it was harming the department.

In the city's bypass letter explaining why he wasn't promoted, the second reason listed read: "Firefighter Rawson was on military leave for the year of 2008."

After he received the letter, Rawson said he and the city's director of veterans services, Rosanne Frieri, asked to meet with the mayor. He said Ruberto declined to sit down with him, so he began filing appeals.

At a December 2010 hearing before the Civil Service Com mission, the hearings officer was clear that there was a problem with the bypass.

"I'm kind of concerned about the reasons for firefighter Rawson. The second reason [listed] was that he was on military leave, and we don't penalize folks for serving their country," the officer told the city's attorney, according to a transcript of the hearing.

The city's attorney, Fernand Dupere, responded by trying to explain that, though it was listed, it wasn't actually intended as a reason for bypassing Rawson.

The hearings officer did not accept the excuse.

"It doesn't state here that it was just for information purposes," the hearings officer said. "It says it was a military leave, so it appears to the commission and anyone else, that he is being penalized for serving his country."

"You can't, you can't, you can't make it a reason," the hearings officer said.

The Civil Service Com mission ruled in favor of Rawson in May 2011, but because of the commission's limited authority, it was only able to recommend that Rawson be placed at the top of the promotion list for future positions and that he receive retroactive seniority upon promotion.

Rawson, who was still serving as a regular firefighter, simultaneously was pursuing a complaint against the city through the labor department, which accepted the case after it conducted a full investigation.

By that point, the city had backed away from any reference to Rawson's military service, and instead focused only on an alleged pattern of absenteeism.

Labor Dept. disputes claim

But the Labor Department's investigation, detailed in a letter to the city, found the city's claims about Rawson's absenteeism without basis. They found that, not including his military service, Rawson actually averaged fewer missed hours of work than another firefighter the department had promoted without debate or incident.

At multiple junctures, the Labor Department offered to settle the case with the city as long as Rawson was duly promoted and received appropriate compensation for time lost. The last such settlement offer was sent in February 2011. The Labor Department received no response from the city.

Ted Fitzgerald, a spokesman for the Labor Department, said it's unusual for an employer to completely ignore efforts to reach a settlement, especially in cases such as Rawson's, where the violations are obvious and well documented.

"These cases are often settled amicably, without legal action; that's the preferred route," Fitzgerald said in an email to The Eagle.

Few cases go to Justice Dept.

In Massachusetts, the Labor Department handled 40 USERRA investigations last year. Of those, only three had to be referred to the Justice Department.

The Justice Department filed suit against the city on Raw son's behalf in federal court in November 2011. It was one of only 12 USERRA violations from across the country that it handled that year.

Among the allegations in the Justice Department's suit were claims that, in addition to the initial USERRA violation, fire department officials began retaliating against Rawson after he invoked his rights under the act by, among other things, effectively cutting his pay $100 a week by taking him off acting lieutenant duty. They also attempted to make him use his vacation time to cover absences related to his military service -- something that is explicitly prohibited under USERRA.

Though Ruberto made the decision to settle the case shortly before he left office at the end of 2011, the former mayor maintains the city was within its rights not to promote Rawson. He said any mention of Rawson's military service with regard to his bypass was a mistake.

"I think it's unfortunate that references were made to his military service," Ruberto said. "My decision to promote someone else did not in fact have anything to do with his service to the country as a reservist."

With Ruberto out of office, current Mayor Daniel L. Bianchi, as the city's new hiring authority, is required to undergo USERRA training with Chief Czerwinski, according to city Solicitor Kathleen E. Degnan, who will provide the training using a pre-determined curriculum.

Even though a different mayor will attend the training, Wright, the USERRA expert and current director of the Service Members Law Center in Washington, D.C., said that aspect of the settlement is perhaps the most important.

Training requirement ‘great'

"I think it's great that the Department of Justice sought and obtained relief, not just for Rawson, but for reserve and guard members in general through the training requirement," he said.

He said that while there are thousands of USERRA violations reported each year, few go as far as Rawson's case. But Wright said that states and municipalities typically are the employers that fight claims the hardest.

"The mayor, the City Council, they don't do the same kind of calculus a private employer would," he said. "If the city ends up having to pay back-pay to Rawson, that's not coming out of the mayor's pocket."

To reach Ned Oliver:,
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On Twitter: @BE_NedOliver


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