West Virginia Record

Sunday, October 13, 2019

Martinsburg firefighters amend holiday pay complaint to include retaliation, salary adjustment


By Chris Dickerson | Apr 11, 2019

MARTINSBURG – A lawsuit filed by more than three dozen current and retired Martinsburg firefighters allegedly failing to pay holiday pay has been amended a second time to add claims of retaliation and salary adjustment. 

Mark Stroop is a lieutenant with the Martinsburg Fire Department and is president of the I.A.F.F. Local 805. He is the named plaintiff, and all 37 plaintiffs are members of the local. Three of the plaintiffs are listed as captains, six as lieutenants, 26 are firefighters and two are retired.

“The City of Martinsburg appears to pay its police officers correctly as to holiday pay, and this lawsuit simply seeks to have the firefighters also paid correctly as to holiday pay,” plaintiffs attorney Teresa Toriseva said when the complaint originally filed in July.

In addition to those original issues, the first amended complaint includes allegations that Martinsburg City Council introduced an ordinance Sept. 13 showing “disparate treatment of firefighters compared to all other city workers” regarding wage payment.

“Ordinance 2018-19 contains no clause related to retroactive application of the ordinance,” the amended complaint states. “Plaintiffs believe Ordinance 2018-19 was introduced and adopted in bad faith by defendant to further infringe upon the fair payment of wages to the plaintiffs and that the same was introduced and adopted as retribution directed toward the plaintiffs for filing this action.

“Ordinance 2018-19 arbitrary and contrary to equal protection guarantees contained in the Constitutions of West Virginia and the United States of America.”

The amended complaint says the city intended to apply the ordinance retroactively to apply to Labor Day this year.

“After the plaintiffs filed their lawsuit to recover their wages, the Chief of the Martinsburg Fire Department unilaterally instituted a policy changing the procedure related to firefighters and calling off sick,” the complaint states. “This policy requires a note from a medical professional if the firefighter takes two consecutive days of sick leave.

“Upon information and belief, no other Martinsburg city employee is subject to the same scrutiny when using sick time.”

It also claims former fire chief Paul Bragg started the policy without taking the matter to city council.

“The department never had a sick leave policy,” the complaint states. “Plaintiff’s believe this is another attempt by the defendants to further ‘muddy the waters’ in terms of wages and paid time off to make the leave policy for the firefighters virtually impossible to understand and decipher if, in fact, they are accorded use of their leave in line with applicable statutory requirements.”

It also says the fire chief could “use this policy to further the disparate treatment of the members of his department compared to all other city employees who did not bring an action against the city.”

According to the complaint, none of the plaintiffs could waive any statutory holiday pay requirements for firefighters who actually worked the holiday.

State code says that if any member of a paid fire department is required to work during a legal holiday or if the holiday falls on the firefighter’s regularly scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief or shall be paid at least time and a half.

According to the complaint, the firefighters – whether they worked a holiday or not – may have been paid additional pay for each holiday, such pay was “in addition to their regular pay.” They say Martinsburg didn’t pay them properly for the holidays.

They also claim that because they have a 56-hour work week, there is an established “regular rate of pay.” The firefighters say they are owed wages for “numerous holidays … some over a period of many years,” but they say they were not paid at the rate of at least time and a half. They also say when they worked overtime on holidays, they were not paid double time for the overtime hours worked.

In the complaint, the firefighters say Martinsburg police officers are paid properly when they work holidays and holiday overtime.

The second amended complaint, filed April 10, says Bragg “instituted a sick leave policy which negatively impacted all firefighters.”

The new policy required firefighters to obtain a note from a medical professional before returning to work if the firefighter takes two consecutive days of sick leave.

“No other employee of the City of Martinsburg is subject to the same scrutiny when using sick leave, the latest complaint states. “The defendant, City of Martinsburg, continues to take retaliatory action against the plaintiff/firefighters for asserting their rights to payment in a willful, wanton, and/or reckless manner with malice and oppression toward the firefighters.”

The latest complaint also claims the firefighters now receive reduced pay for sick leave.

“Prior to the instant lawsuit, when a firefighter took a sick day, the firefighter would be compensated for 24 hours on that day even though the 24 hour shift overlapped two calendar days,” the complaint states. “For example, a firefighter who took February 19, 2017, as a sick day took 24 hours sick leave on February 19, 2017, not 16 hours on February 19, 2017, and 8 hours February 20, 2017, and the firefighter was compensated for 24 hours sick leave.

“Only after the lawsuit was filed, firefighters were informed that their shift schedule would be divided into two days, 16 hour and 8 hour shifts, not a 24 hour shift.

“In retaliation for this lawsuit, the City of Martinsburg changed the sick leave time off compensation policy that had been in effect for over thirty years. The change negatively impacts the firefighters.”

The firefighters claim the city violated the state Wage Payment and Collection Act and negligently failed to properly pay the statutory holiday premium. They seek a motion for the appointment of a special commissioner “to calculate the holiday pay wages due each of the firefighters from their date of hire … to assess the costs” against the city. They also want the commissioner to “calculate the additional benefits due each firefighter.”

They seek compensatory damages, attorney fees, court costs and other relief. They also seek a stay of Ordinance 2018-19 and the chief’s new “sick time” policy.

Toriseva and Joshua Miller of Toriseva Law in Wheeling is representing the firefighters. The case has been assigned to Circuit Judge Laura Faircloth.

Berkeley Circuit Court case number 18-C-209

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