NYC wants FDNY age discrimination suit by chiefs against Kavanagh tossed

The city has asked a judge to toss out a sweeping ageism lawsuit filed by a group of FDNY chiefs against Fire Commissioner Laura Kavanagh, arguing that it fails to show that seasoned fire officials were targeted or suffered discrimination because of their age.

A half dozen experienced FDNY brass say in the lawsuit that they were harassed, maligned and ultimately demoted because they seemed too old in Kavanagh’s eyes. Each one was between 54 and 62 years old when the complaint was filed in March 2023.

Asking Judge Patria Frias-Colón in Brooklyn Supreme Court to dismiss the case, city attorney Hayley Bronner said on Wednesday the complaint fails to show the chiefs were specifically targeted due to their age.

“There is nothing in the allegations that (the chiefs) were replaced by anyone younger or that they were targeted because of their age,” Bronner said.

Representing the chiefs, Attorney Jim Walden accused the city of playing “whack-a-mole” with the complaint, smacking down sections of the lawsuit it claims are not specific enough to show ageism when the entire complaint shows what he called a “pattern of behavior.”

“The city is arguing that there is a lack of specificity, but I don’t understand how there could be more specificity,” Walden said. “The story of this complaint, the arc of the behavior is a wide-ranging conspiracy that is one of the most detailed stories that I have ever seen in a complaint.”

The lawsuit was filed by Assistant Fire Chiefs Michael Gala, Joseph Jardin, Michael Massucci, Frank Leeb, EMS Computer Aided Dispatch Programming Manager, Deputy Director Carla Murphy and retired EMS Chief James Booth, who has since been removed after it was found that his claims went beyond the four-year statute of limitations.

Kavanagh, who is in her early 40s, is New York’s first woman fire commissioner. She is also one of the city’s youngest fire commissioners.

Walden argued that the fire officials filing suit were “all qualified to do their job and all suffered adverse actions.”

Beginning in 2018 and continuing to the present, “the most senior people within the FDNY … were demoted, taken off medical leave, had their benefits cut, had their computer access cut off, were disparaged and had false claims filed against them,” Walden said.

City attorneys say the lawsuit is filled with allegations involving other FDNY employees to bolster the ageism argument, but “they have not alleged an inference of discrimination for any or all of them.”

The lawsuit is trying to claim that “an inference of age discrimination for any FDNY employee over 50 would exist by pointing to any other employee over 50 who has ever been subject to any kind of unfavorable treatment,” the city attorney wrote in her motion.

“It is not enough for the plaintiff to say: I belong to a protected class; something bad happened to me at work; therefore, it must have occurred because I belong to a protected class,” she wrote.

Walden disagreed and said all the allegations show an undercurrent of discrimination against older members of the department.

“We have 20 people all experiencing similar acts of adversity and discrimination,” Walden asked. “In cases of intimidation and discrimination, the employer doesn’t often say, ‘Hey we’re demoting you because we don’t like you because of your age.’ If that was the case, it would be much easier to plead a case.”

The judge is expected to render her decision on the city’s dismissal motion in coming weeks. Over the past year, she has ordered parts of the wide-ranging lawsuit be excised, including allegations that one of the chiefs was ordered to fast-track fire inspections for companies and businesses friendly with the Adams’ administration.

Colon determined that the allegations about a list of deep-pocketed developers whose inspections were to be bumped up on fire inspectors’ to-do lists did not belong in the suit because they didn’t get to the heart of the ageism complaint. Allegations of Adams fast-tracking the opening of the Turkish consulate in 2021 have become a focus of an FBI investigation; Adams has not been accused of any wrongdoing.

The judge also ordered that “scandalous and prejudicial” claims against Kavanagh be stricken.

Outside court, Walden called the dismissal motion a “delay tactic.”

“We’re hoping that the real takeaway here is not just that the complaint is upheld, which it should be, but that the court says ‘Enough is enough’ to the city and put us on a discovery schedule so we can find the actual underlying evidence,” he said. “That’s going to show there’s even more misconduct.”

The department has repeatedly labeled the chiefs’ lawsuit as “baseless” and “just an attempt to undermine the authority of the Fire Commissioner.”

The chiefs sued Kavanagh about a month after she demoted Gala, Jardin and Assistant Chief Fred Schaaf to deputy chief.

Their demotions sparked a protest by FDNY chiefs who criticized Kavanagh and asked to be demoted in rank and moved out of department headquarters. So far, she has not signed off on any of the demotion requests, FDNY officials said.