City Settles With federal government over accommodations for disabled 9/11 firefighter

May 11, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Loretta E. Lynch, United States attorney for the Eastern District of New York, announced the filing of a settlement agreement with the City of New York regarding allegations that the Fire Department violated the Americans with Disabilities Act by failing to reasonably accommodate a disabled firefighter.

“The parties’ stipulation of settlement specifically acknowledges that the city has denied that it discriminated against Captain Snell or other firefighters on the basis of disability,” said Kathleen Comfrey, senior counsel in the city’s labor & employment law division.  

The federal complaint was brought on behalf of Gerald Snell, a former FDNY fire captain who suffered irreversible lung damage while participating in search, rescue, recovery and cleanup efforts at the World Trade Center site in New York City after September 11, 2001.

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Pursing this lawsuit “would have been extraordinarily difficult for the United States in light of firefighters’ unlimited paid sick leave and generous pension plan, and the city’s ongoing obligation to the citizens of New York to clamp down on pension abuses,” Comfrey contended.

The U.S.’ complaint alleges that the FDNY failed to reasonably accommodate Captain Snell’s disability and forced him to retire despite his desire to remain with the FDNY in a non-firefighting capacity.

“All New York City firefighters with disabilities – and in particular, 9/11 first responders such as Mr. Snell – are entitled to the protections of the Americans with Disabilities Act,” Lynch stated. “This includes the right to receive reasonable accommodation in the form of reassignment where appropriate, so that firefighters can continue to serve the people of New York City even if they are no longer physically able to fight fires. Their experience and expertise should not be lost.”

Under the Settlement Agreement, the FDNY has agreed to pay Snell back pay and to adjust his monthly pension payments.   “Firefighters have 20-year retirement pensions precisely because the legislature recognized early on that given the physically demanding nature of the job, many firefighters are unable to maintain the necessary fitness,” said Comfrey.  “Many firefighters file their own applications for retirement, in addition to the application filed by the Fire Commissioner on their behalf, and retire promptly when awarded a disability pension.  As a result, firefighters have not expressed major concerns about the reasonable accommodation process.”

This case, however, concerned more than merely paying Snell an adjusted pension.  In addition, the FDNY has agreed to create and implement written reasonable accommodation procedures that comply with the ADA, which will ensure that all disabled firefighters are offered the opportunity to obtain reasonable accommodation and not be forced to retire if they wish to remain with the FDNY and are qualified for available “off-line” positions that do not involve firefighting duty.

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