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Pasco Tribune

Pasco's legal fees climbing in firefighters' civil rights case

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Published:   |   Updated: March 20, 2013 at 10:08 PM
NEW PORT RICHEY -

Two Pasco County firefighters who filed a civil rights lawsuit against the county have been placed on unpaid leave and ordered to submit to a psychological evaluation before they can return to duty.

Their attorney, Cynthia Sass, said the suspensions were clear acts of retaliation against the firefighters, who accused the county of racial and religious discrimination. She has filed an emergency motion to prevent the county from ordering her clients to submit to a "fitness for duty" evaluation.

According to the motion, when Anthony Booth and Jerry Brown arrived at work Aug. 31 they were told to report to the county's Employee Assistance Program, where an assistant fire chief presented them with a fitness for duty letter addressed to personnel director Barbara De Simone.

The letter was based on testimony the firefighters gave eight months earlier about feeling threatened by their co-workers and stressed because of the lawsuit.

They were told they would be fired if they didn't sign the letter, according to Sass' motion.

The two also were forced to sign a letter acknowledging they would not be paid and would have to use vacation or sick time until they were released by an EAP counselor who worked for the county, the motion states.

De Simone said she considers the lawsuit "a bogus case." But she would not discuss the suspensions, saying it was "super confidential."

Booth, a firefighter/EMT who is Hispanic, and Brown, a driver/engineer whose wife's family is Jewish, are seeking compensatory and punitive damages, back pay, attorneys' fees and other litigation costs.

The case arose from complaints both men filed in 2007 against Capt. Mark Bodden, their supervisor at Station 14. After an internal investigation, department officials agreed that Bodden had violated at least nine county policies. He was transferred and ordered to enroll in anger management and diversity training, but he still received a merit pay raise, according to court documents.

The lawsuit also alleges that at least one of the men was passed up for a promotion, got transferred against his will to another station and got marked down on evaluations because of the grievances. Brown also alleges he was denied a day off to tend to family matters when his sister died.

Both men, who had been members of the local firefighters union since its inception in 2005, said they went to the International Association of Firefighters Local 4420 for help but were turned away.

The union posted an announcement on the bulletin board warning members that their dues would likely increase as a result of the "frivolous" lawsuit.

The Equal Employment Opportunity Commission found that the bulletin board notice violated the civil rights of Booth and Brown and that the county was equally responsible because it allowed the notice to be posted on county property.

"The EEOC found that the county knew or should have known the postings would adversely impact Mr. Booth and Mr. Brown's working conditions, and it did," Sass wrote.

The case is scheduled for trial at the U.S. District Court in Tampa in December. Judge James Moody scheduled a hearing for Sept. 20 on the motion regarding the fitness for duty evaluation.

Pasco County already has spent $100,000 in legal fees on the case. In August, county commissioners allocated an additional $65,000 for fees to take the case to trial.

Booth and Brown offered to settle the case in March for $20,000 each plus $70,000 in legal fees on the condition that each would be promoted at the next available opening within the department.

"You recognize, of course, that the county will continue to incur significant fees and expenses going forward," Sass wrote in the settlement offer. "It will incur fees if it decides to pursue a summary judgment motion which will almost surely fail in whole or in part.

"For example, Mr. Booth and Mr. Brown can easily show that the actions taken against them by the County after they complained about discrimination would dissuade a reasonable employee from making a similar complaint," she continued.

County commission Chairwoman Ann Hildebrand said commissioners were never told there was a settlement offer before they voted to increase the legal fees. An internal memo from County Attorney Jeffrey Steinsnyder reported that the case had become "increasingly adversarial" and that a mediation conference March 3 was unsuccessful.

"I don't know anything about it, and I don't think it was ever a part of the discussion," Hildebrand said.

It's unusual, she said, for the county to take a case to trial without advising commissioners of a potential settlement.

Steinsnyder said he didn't have a copy of the settlement offer and didn't even know it existed until The Pasco Tribune filed an open records request for it in late August.

De Simone said she decided to reject the offer without bringing it to the county commission.

"It was decided between me and (outside counsel Tracy Jaensch) not to take it to the commissioners," she said. "We're the ones who handled the mediation."

She said Sass' legal fees were excessive.

"And there is no way I was going to promote employees who did not follow procedures," De Simone said.

That decision could prove to be expensive. The judge could award the firefighters up to $300,000 each plus attorney's fees, Sass wrote. That's in addition to the $165,000 in legal fees for the defense.

"We've tried to resolve this case since the beginning," she said in an interview. "Pasco County has continued to litigate this claim to the detriment of the taxpayers."

Sass invited the county to make a counteroffer. Jaensch responded by email, saying she and County Administrator John Gallagher would wait until after the judge ruled on the county's motion for summary judgment.

"This case could have been resolved long before today had you or your clients ever made a reasonable demand," Jaensch wrote. "Demanding promotions and the like that Pasco County is unable to do under its collective bargaining agreement is unreasonable."

lkinsler@tampatrib.com


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