By Thomas Tracy
New York Daily News
NEW YORK — Fire Commissioner Laura Kavanagh may be gone, but the lawsuit accusing her of ageism filed by a group of FDNY chiefs she constantly butted heads with is alive and well, the Daily News has learned.
Brooklyn Supreme Court Judge Patria Frias-Colón shot down the city’s attempt to dismiss the case, finding the allegations made by the chiefs against Kavanagh “are sufficient enough to state a cause of action.”
In the same decision, Frias-Colón removed two of the plaintiffs from the lawsuit, claiming their allegations were time-barred and not related to age discrimination.
Five experienced FDNY chiefs, including Michael Gala, Joseph Jardin, Frank Leeb, Michael Massucci and Fred Schaaf say in the lawsuit that they were harassed, maligned, reassigned to insignificant back-room positions and were 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.
During a hearing in June, city attorneys said the entire case should be tossed because it failed 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,” city attorney Hayley Bronner said at the time.
Yet Frias-Colón disagreed.
“Here [the lawsuit] adequately alleges that Plaintiffs Gala, Jardin, Leeb, Massucci, and Schaaf were each a member of a protected class, were qualified to hold their respective positions, and were treated less well than other similarly ranked FDNY officers,” she wrote in her decision on Aug. 21 . “Further, [the suit] also adequately alleges that Plaintiffs Gala, Jardin, Leeb, Massucci, and Schaaf, each over the age of 50, were each treated differently under the circumstances giving rise to an inference of age discrimination.”
Frias-Colón removed EMS Computer Aided Dispatch Deputy Director Carla Murphy and retired EMS Chief James Booth as plaintiffs from the suit. Booth’s claims were too old to be added and Murphy’s claims couldn’t be considered age discrimination, she said.
She also denied the city’s request to remove Deputy Mayor of Public Safety Philip Banks and FDNY First Deputy Commissioner Joseph Pfeifer as defendants in the suit for “lack of personal involvement” with the allegations.
Again, Frias-Colón disagreed with the city’s assessment.
“An employee who did not participate in the primary violation itself, but who aided and abetted that conduct, may be individually liable based on those actions,” she wrote. “[The plaintiffs’] alleged facts are sufficient to state a cause of action against Defendants Banks and Pfeifer for aiding and abetting Commissioner Kavanagh in unlawfully retaliating against them.”
After a decade in the FDNY and more than two years as fire commissioner, Kavanagh resigned on Aug. 7.
“The department needs a commissioner who can give it 100% of their all every day,” Kavanagh posted in an essay on Medium. “I gave that to the FDNY for 10 years. It’s time for me to give that time back to all the people who made it possible in the first place for me to serve our beloved city for so long.”
Kavanagh was the city’s first woman fire commissioner. She was also one of the youngest commissioners in the city.
She said she wanted to spend time with family, which she says she neglected as the head of the country’s largest fire department, before figuring out what her next step would be.
A week later, Mayor Adams named Robert Tucker as Kavanagh’s replacement. Within a week Pfeifer was ousted as the FDNY’s second in command and retired.
The chiefs sued Kavanagh about a month after she demoted Gala, Jardin and 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. She never signed off on any of the demotion requests.
Over the last year, Frias-Colón 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.
Frias-Colón 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.
Attorney Jim Walden, who is representing the chiefs and has called the city’s attempt to quash the suit a “delay tactic,” was happy the lawsuit will continue.
“Given that the Court wisely sustained the majority of our claims, including those against Deputy Mayor Banks and First Deputy Pfeifer, we look forward to deposing former Commissioner Kavanagh and the defendants, and finally taking this case to trial,” Walden said Friday.
The FDNY, which has repeatedly labeled the chiefs’ lawsuit as “baseless” and “just an attempt to undermine the authority of the Fire Commissioner” referred requests for comment about the lawsuit to city attorneys, who declined comment.
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