Local municipalities spent months negotiating with the Equal Employment Opportunities Commission over the issue of volunteer firefighters’ pensions. After passing resolutions setting amounts to pay out to the firefighters in question this past summer, board members and fire chiefs thought the issue was resolved.
So imagine their surprise when they found out about a lawsuit filed against them by the EEOC — by reading about it on a news website.
“They’ve sued the village of North Syracuse, the town of Cicero and the town of Clay,” said North Syracuse Village Mayor Mark Atkinson. “We have, for the last four years, been working with the EEOC. We all said, ‘You know, we understand the state laws, and there were some changes to the federal laws, and that supersedes everything. So we want to get everything cleared up. Let’s get it cleared up.’ So our office, in connection with VFIC, which is the insurance company, put everything together and came up with a dollar amount for those people that were within that time frame who were not getting the credits that they should. And we were still talking to them [the EEOC]. From our last conversation, which took place with our attorney in July, everything was all good. They said, ‘We’re sending this all up for your sign-off.’ The next thing I know, there’s an article on syracuse.com saying we’re being sued. I haven’t even seen the paperwork.”
Officials from other municipalities told similar tales.
“We’ve done more than work with them. We’ve agreed to and set aside monies to make these adjustments,” said Clay Town Supervisor Damian Ulatowski. “We passed a board resolution, which was signed a couple of months ago [to address the issue]. So we were blindsided.”
The lawsuit, filed Tuesday, Sept. 25, in federal court, named not only the municipalities but also the Cicero, Clay, Moyers Corners and North Syracuse fire departments as defendants. It involves four counts of alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA) and demands a jury trial to resolve the issue. According to the complaint, the defendants violated the rights of several firefighters by failing to allow them to accrue credits toward their length of service award, the equivalent of a pension, because of their age.
A length of service award program (LOSAP) is meant to allow firefighters to earn a pension by taking part in a points-based awards system that gives credit to participants for the duties they regularly undertake as volunteer firefighters. In order for a year to qualify, a firefighter must earn 50 points. Pensions are determined based on the number of qualifying years once the firefighter reaches the retirement age set by the fire department in which he or she is a member. According to the original legislation, after firefighters reach that age, though they could continue to volunteer, they could no longer accrue points toward that pension. That changed in 2003, when the state amended the law.
According to New York state law, passed in 1989, a LOSAP can only be adopted, amended or terminated by a referendum of the voters covered by the fire department and/or fire district. Those establishing a LOSAP must set an “entitlement age” at which firefighters become eligible for benefits, no lower than 55 and no higher than the age at which recipients can receive Social Security benefits.
All four departments named in the EEOC lawsuit enacted LOSAPs in the early 1990s, setting their age cap between 60 and 65. That cap went down to between 60 and 62 in the intervening years.
The problem — the reason for the lawsuit — is that the three municipalities and the associated fire departments failed, at some point or another, to adequately compensate some volunteers through the LOSAP program. According to the complaint, a number of volunteers were either denied credits toward their LOSAPs, which violates the ADEA, or were not issued retroactive credits when LOSAPs were amended to allow those over the entitlement age to receive credits.
Attorneys from the EEOC’s New York district office said at least 25 firefighters are affected in the suit against three municipalities and four fire departments, but they are not exactly sure how many yet. They said that they would not be suing without having taken previous measures to resolve the issues and that they remain hopeful a settlement can be reached.
“Our system doesn’t allow us to file a case unless we have done everything we can to bring about a resolution,” said Elizabeth Grossman, EEOC regional attorney for the New York district office. “The way that the statute works is that if we believe discrimination has occurred, we attempt to work out a resolution with the employer and we do not file a lawsuit unless and until we determine that settlement talks have not proven successful.”
Her colleague, Michael J. O’Brien, said he knows that settlement offers have been made prior to the lawsuit but the EEOC hasn’t been able to confirm their accuracy yet.
“There are offers out there to settle,” said O’Brien, EEOC’s senior trial attorney for the New York district office. “The issue right now is whether or not the offers are sufficiently detailed and accurately identify all the claimants and accurately identify the money involved. We filed suit to hopefully facilitate a settlement. We need more information about the numbers that they gave us and the number of claimants.
“I think what’s going to happen is it’s going to be a process during which we attempt to identify all persons who reach the age of eligibility and whether or not they are entitled to relief. Right now we have the towns’ estimation of damages.”
The heads of the local municipalities didn’t understand why the EEOC had to file a lawsuit instead of continuing the path of negotiations, as the parties had been for the last few years.
“I’m completely at a loss,” Ulatowski said. “The situation was brought to our attention, and we did the right thing. We identified the volunteers who fell into that category, we worked with the administration to categorize the funding, authorize it, set it aside — what more can we do? I can’t answer that. We as a board did the right thing. We followed New York state legislation to a T and did what we were supposed to do.”
Atkinson was upset about the money that would be wasted on the lawsuit that could have been spared had negotiations been pursued instead.
“What’s upsetting to me is that we’re spending money, money that we certainly don’t have in the village of North Syracuse, the federal government is spending money, money they apparently do have, since they’re the ones who initiated this, when we already agreed upon what the outcome should be,” he said. “I don’t know what the problem is.”
