A fire fight

Former captain’s lawsuit continues

The Appellate Division of the Superior Court of New Jersey has upheld the North Hudson Regional Fire and Rescue’s (NHRFR) decision to terminate Steven Winters, a former fire captain turned whistleblower, but his lawsuit against the department will move forward unless future appeals by the NHRFR halt it.
Winters was a former Union City firefighter before the department regionalized to cover the North Hudson communities of Union City, North Bergen, West New York, Guttenberg and Weehawken, after which he became a captain.
Citing several decisions made by the Civil Service Commission (CSC), the independent state agency that oversees public employees, and most recently, decisions by the appellate court, Winters maintains that actions he took as a whistle blower from 2002 to 2006 led to his termination by the department. The Regional counters that his behavior warranted disciplinary action.
Winter’s suit was filed under the Conscientious Employee Protection Act (CEPA), which protects employees who are “whistleblowers.”


The Regional then had Winters removed from employment effective Nov. 30, 2006 due to “feigning sickness and defrauding the public,” said court documents.

On Aug. 30, the Superior Court denied the department a summary judgment against Winters to stop his lawsuit from going forward, saying they could not prove the disciplinary actions were not retaliatory in nature. Chief Brion McEldowney and Co-Directors Jeffery Welz and Michael De Orio asked the court for “qualified immunity,” which would have justified their disciplining Winters, but the court decided a jury had to decide this.
The Aug. 30 court ruling said a “reasonable fact finder” could decide whether or not his termination was protected under CEPA.
The Superior Court then upheld the Regional’s decision to fire Winters on Sept. 28.
Neither side would talk except through their attorneys, since the matter is still in litigation.
“The court ruled that according to the CEPA laws, you have to look at what motive was in the disciplinary action and that’s an issue of fact that a jury has to decide and ‘we sitting here as judges’ can’t make that decision,” said NHRFR attorney Thomas Kobin.
If the department does not win an appeal that it expects to file in Superior Court, Winters’ lawsuit against the department is scheduled to go to trial on Jan. 24, 2011.

‘Confidential document’
According to court documents, in November 2004 Winters submitted to the Regional several reports complaining about the NHRFR’s radio communications, as well as other health and safety issues. He also sent a letter to the North Hudson Fire Officers Association accusing McEldowney of interfering with a fire investigation.
Kobin said that the letter had wild allegations and that the department had inherited old equipment and that although they took the need to replace it seriously, it had to be done over a period of time to save taxpayers’ money.
Then on Dec. 13, 2003, Winters prepared a report which detailed an anonymous firefighter’s allegation that battalion chief had harassed him and other firefighters. He claimed that on Dec. 15 he handed an envelope titled “confidential” to McEldowney’s secretary.
Winters allegedly handed a copy of the report to Teaneck Firefighter William Brennan. When Brennan allegedly provided the report to a television news reporter in late 2004, the department demoted Winters in September 2005, accusing him of “incompetency,” “insubordination,” and “conduct unbecoming a public employee,” according to court documents. The Regional said that the confidential report, which contained allegations that had not been proven, should have not left the department.
After Winters waived a hearing, the Regional served him with a 60 day suspension and demoted him to firefighter status. This demotion, after being upheld by the CSC is currently being appealed in appellate court.
McEldowney and his secretary claimed that they never received the report. The Regional accused Winters of not following the proper chain of command and for not following up on the report. In court documents, Winters admitted as much.
Winters’ Attorney Robert Herbst said that his client broke no laws by doing so.
“It was perfectly appropriate for him to have done so, and patently illegal for the defendants to have retaliated against Mr. Winters for this legally protected activity under both CEPA and the First Amendment, as the Court in our case has effectively found in its ruling denying defendants’ motion for summary judgment as to that issue,” said Herbst.

Termination due to ‘improper’ sick leave

After the most recent hearing, argued by Attorney David Corrigan for the Regional, the court upheld the CSC decision that the termination of Winters was warranted.
According to court documents, Winters began psychiatric care in April 2006 due to an “overwhelming” work environment and due to him suffering from a panic disorder. His doctor suggested he not work in any capacity at a fire department for three to six months. He then went on sick leave on June 13.
While on leave, Winters allegedly continued to work as an electrical inspector for Old Bridge from June to Nov. 2006 and as an electrical inspector or construction official for Long Branch from Sept. to Nov. 2006.
After being examined once by the Regional psychologist in October, the doctor contended he could go back to work, according to court documents.
The Regional maintains that according to their rules, workers on sick leave must remain at home. However, by not being at home other numerous dates when they wanted Winters to submit to their psychologist’s exam, he violated their policy. When they asked Winters to return to modified duty on Oct. 24 according to their doctor’s suggestions, he did not report to work, said reports.
The Regional then had Winters removed from employment effective Nov. 30, 2006 due to “feigning sickness and defrauding the public,” said court documents.
“Now he’s claiming we’re retaliating against him [but] at the end of the day this case is about what he wanted, the management of the fire department to ignore his egregious conduct,” said Kobin.
Herbst disagreed, stating that Winters only worked the other two jobs on his non-duty days at the NHRFR and said that both directors worked a second job while on full duty at the Regional. He said that only Winters was retaliated against for speaking out against the Regional.
“We are confident that the jury at the upcoming trial in January will see this discipline for the illegal relation it was,” said Herbst.

Future of the case

Kobin said that as the suit goes forward, it will likely become an expensive legal bill for the Regional, since it could last five to seven weeks and demand anywhere from 10 to 12 hours a day from attorneys “at a minimum.”
While they await their appeal, the trial date looms in January.
Tricia Tirella may be reached at TriciaT@hudsonreporter.com.

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