MARTINSBURG – A Berkeley County judge has denied the City of Martinsburg’s request to alert or amend an earlier order regarding pay for its firefighters.
In the order filed December 20, Circuit Judge Laura Faircloth says the city should pay the plaintiff firefighters with a minimum of 24 hours compensatory time or 36 hours pay for each legal holiday according to state code.
Faircloth ruled in the matter earlier this summer from the bench, but the city had filed a motion asking her to alert or amend the previous order. The city argued Faircloth didn’t follow a 1986 state Supreme Court ruling, but the judge said that ruling didn’t apply in this case because Martinsburg firefighters work 24-hour shifts.
Toriseva
"This court's previous order is a logical legal development based upon the differing factual deployment of the 24-hour shift worked by Martinsburg firefighters," Faircloth wrote in her December 20 order.
In February, Faircloth granted a motion for summary judgment in the case filed by union members of the Martinsburg Fire Department. From the bench, Faircloth said the city should be paying the firefighters either time and a half for their 24-hour shift whether they work the holiday or not or providing them with comp time for the holiday. She filed the order granting in part and denying in part the plaintiffs’ motion for summary judgment on August 11. Faircloth did not grant the firefighters’ motions regarding salary adjustments and claims of retaliation.
"By affirming her previous order granting summary judgment to firefighters and fully explaining the state law that directs how professional firefighters are to be paid during holidays, Judge Faircloth has now twice thoroughly examined all of the relevant issues and twice decided Martinsburg is not meeting its duty on firefighter holiday pay," attorney Teresa Toriseva, who is representing the firefighters, told The West Virginia Record. "She has ordered plainly and clearly that Martinsburg comply with the law and that they begin to pay firefighters correctly per the statute.
"We expect this pay change immediately and we will fight for back pay awards for every firefighter who was denied his/her fair wage."
In the August order, Faircloth says “there are no disputed issues of fact regarding the defendants’ failure to compensate the plaintiffs’ holiday pay required by the West Virginia State Code.”
In granting summary judgment on the issue of holiday pay, Faircloth also orders the city to comply with state code and compensate plaintiffs with a minimum of 24 hours compensatory time or 36 hours pay for each legal holiday.
As for the issue of back holiday pay damages, Faircloth says she needs further evidence and testimony to make a ruling. Plaintiffs suggest 29 years or at least 10 years because of a statute of limitations regarding written contracts.
The firefighters also allege the city retaliated against them for filing their lawsuit. Faircloth denied summary judgment on that matter, saying evidence of retaliation is subjective and relies on intent of the defendant.
“To make a summary judgment ruling on this issue would be premature as there are disputed issues of fact raised in the pleadings, motions, answers to discovery and depositions,” Faircloth wrote. “The court finds the evidence presented by the plaintiff is not fully developed regarding this specific issue of retaliation. The alleged retaliation should be verified by in-court witness testimony so the court may evaluate the truthfulness, demeanor and character of the witness and the testimony.”
Faircloth also denied a plaintiffs’ motion regarding salary adjustment, saying there are issues of fact about whether the city complied with state law. She also says a hearing with testimony is needed for that.
The Martinsburg lawsuit was filed in 2018 by more than three dozen current and retired firefighters alleging they were not properly paid holiday pay. It later was amended to add claims of retaliation and salary adjustment.
Mark Stroop is a lieutenant with the Martinsburg Fire Department and was president of the I.A.F.F. Local 805. He is the named plaintiff, and all 37 plaintiffs are members of the local. Brad Knierman is the new I.A.F.F. Local president.
In addition to those original issues, the first amended complaint included allegations that Martinsburg City Council introduced an ordinance 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 stated. “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 said the city intended to apply the ordinance retroactively.
“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 stated. “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 claimed 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 stated. “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 said 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 said Martinsburg police officers are paid properly when they work holidays and holiday overtime. The second amended complaint said 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 complaint also claimed the firefighters began receiving 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.”
Toriseva and Joshua Miller of Toriseva Law in Wheeling are representing the firefighters. Floyd “Kin” Sayre of Bowles Rice in Martinsburg is representing the city.
Berkeley Circuit Court case number 18-C-209