CLARKSBURG – A federal judge has remanded two lawsuits originally filed by Morgantown police officers and firefighters accusing the city of retaliation back to state court.
On May 4, U.S. District Judge Thomas Kleeh issued memorandum opinion and orders in both cases. They will be heard in Monongalia Circuit Court, where they originally were filed in September. The city removed the cases to federal court a few weeks later, and the plaintiff asked Kleeh to remand them a few weeks after that.
The two lawsuits – one by 48 members of the International Association of Fire Fighters Local 313 and another by 43 members of the Mon-Preston Fraternal Order of Police Local 87 – originally were filed after the groups issued a statement regarding their votes of no confidence in the entire city government to “competently administer public safety.”
Toriseva
“Even a cursory reading of plaintiffs’ complaint reveals the complete absence of any semblance of a federal claim on that pleading’s face,” Kleeh wrote in both of his May 4 orders. “Defendant fails to cite any provision of the complaint to support its claim a federal question exists here. Instead, defendant argues it ‘must rely on’ the Fair Labor Standards Act to defend the matter."
The attorney representing both groups of plaintiffs said her clients are happy with Kleeh's order.
"The Morgantown firefighters and police officers are all pleased with this ruling, which is the correct legal analysis," Teresa Toriseva told The West Virginia Record. "The retaliation claims are based in state law.
"We’re eager now to move forward in the proper venue and for these first responders to all have their day in Monongalia County Circuit Court."
In the original complaints, the members of the Morgantown fire and police departments claimed retaliatory actions following previous legal actions regarding pay and benefit issues. They also filed civil service complaints with the city seeking hearings on the issues.
“The backbone of any city, large or small, is its public safety servants,” Toriseva told The Record in September when the suits originally were filed. “Firefighters and police officers are a city’s main resource.
“The laws protect them from retaliation and mistreatment on the job that can be brought on by the changing winds of city politics. These lawsuit filings today aim to enforce the state laws that city officials refuse to follow.”
The two complaints were filed September 7 in Monongalia Circuit Court.
In their complaint, the firefighters claim the city has violated their right to seek redress for their grievance by reducing pay and benefits to punish or retaliate against them.
“The defendant has chosen to retaliate against the plaintiffs and other Morgantown civil service employees by reducing their pay and manipulating the leave system to punish those city employees that exercise their right to petition the courts,” the complaint states. “The plaintiffs have brought two lawsuits against the defendant seeking to correct various wage and compensation issues.”
The lawsuit details “unprecedented challenges” the department is facing to recruit and retain firefighters. It says those issues mean minimum staffing requirements rarely are met.
“Firefighting staffing challenges created by the city threaten the overall public safety of Morgantown residents, Morgantown structures, and citizens’ real and personal property,” the complaint states.
Members of IAFF Local 313 previously filed a lawsuit against the city alleging negligent failure to properly pay statutory holiday premium.
Last summer, the city amended the employee handbook to change how firefighters are paid wages and benefits. They firefighters allege this was done in retaliation for the lawsuit.
“The changes to pay and compensation were unnecessary and arbitrary, designed only to punish, devalue, and retaliate against the firefighters for their continued fights in the courts to be paid,” the complaint states.
Under the new compensation scheme, both firefighter pay and leave is affected. The new pay scheme eliminates Master Firefighter pay, hazard pay, longevity pay, shift differential pay and emergency overtime pay. It also reduces the amount of paid time off a firefighter can bank and also eliminates sick time.
The complaint says firefighters could lose as much as $1,260.60 per year under the new pay scheme.
In the police complaint, the officers say their department also is understaffed. As of August 31, it is authorized to have 76 officers. Currently, there are 55 officers. Recruitment is an issue for the police department as well, the complaint states.
The officers say the city’s new pay scheme also reduces their pay and benefits, which has “affected department morale and threaten public safety as trained, experienced police officers seek other employment further adding to the staffing crisis.”
The complaint says the new pay scheme reduces overtime availability for police officers, eliminates the ability to accrue additional sick leave, additional vacation leave and additional holiday leave. It also changes how compensatory time can be used.
Both groups accuse the city of violating their rights to petition for redress of grievances, official retaliation by city government actors, violating the West Virginia Wage Payment and Collection Act and violating the state Whistle-Blower Law. The firefighters also accuse the city of violating public policy and violating the Takings Clause of the state constitution.
Both groups seek compensatory damages, interest, attorney fees and court costs. Both are being represented by Toriseva, Joshua Miller and Michael Kuhn of Toriseva Law in Wheeling. The city is being represented by Ryan Simonton, Erin Webb and Matthew Elshiaty of Kay Casto & Chaney.
U.S. District Court for the Northern District of West Virginia case numbers 1:22-cv-00094 (FOP) and 1:22-cv-00095 (IAFF); Monongalia Circuit Court case numbers 22-C-214 (FOP) and 22-C-216 (IAFF)
