City That Axed Depressed Firefighter Faces Review

PITTSBURGH, Pa. (CN) - A former Pennsylvania firefighter who was fired after setting a fire in a bathtub during a suicide attempt can sue the department for disability discrimination, a federal judge ruled.

Mary Wolski had worked as an Erie, Pa., firefighter since 1997 but fell into a downward spiral of depression following her mother's death in 2005. In the week of the one-year anniversary of that loss, Wolski tried to kill herself. When carbon monoxide poisoning and overdosing on prescription medication failed her, Wolski set fire to some clothes in a bathtub, expecting the smoky fire to release additional carbon monoxide. She also cut her neck several times with a buck knife.

Wolski survived after receiving emergency treatment and went on sick leave. The city declined to file criminal charges, but it fired her about three months later.

Wolski sued Erie under the Americans with Disabilities Act in 2008, claiming that she was fired because of her psychiatric illness.

The city's civil service commission had determined, however, that the termination "resulted solely from her own offensive actions" in setting a fire, which it called "the single most significant act a fire fighter may not commit."

"Your ticket out of being a firefighter is to set an intentional fire and have your own company address it," the city's attorney, Gerald Villella, told Courthouse News.

Erie claimed the commission's decision concerning the basis of Wolski's termination was conclusive and that the issue could not be re-litigated.

"One cannot help but reflect that the popular science-fiction novel 'Fahrenheit 451' is built upon the massive incongruity of applying the term 'firemen' to people who set fire to books in a dystopian, illiterate future rather than extinguishing fires," Villella argued in his brief. "Fortunately, neither the present state of the law nor the intelligence of our society have yet deteriorated to such a degree as to permit this plaintiff to trample such fundamental principles of public safety and common sense by the outrageous misuse of legislation."

Wolski's attorney, Paul Susko, told Courthouse News that commission's decision merits review since it comes from a panel composed "of three members appointed from the community who have no authority to judge or enforce the Americans with Disabilities Act."

Wolski is currently working in "local manufacturing" but wants to be reinstated as a firefighter, Susko said.

Erie had moved for summary judgment, but U.S. Judge Sean McLaughlin rejected the attempt on Friday. He found that the doctrine of collateral estoppel cannot be applied to the proceedings of Erie's civil service commission, which upheld the termination, because the commission lacks state court oversight.

The Supreme Court has held that unreviewed state administrative proceedings may not be given preclusive effect in civil rights cases under Title VII and the Age Discrimination in Employment Act, McLaughlin said, and the trend would likely hold true for claims under the Americans With Disabilities Act.

"This court likewise concludes that no preclusive effect should be given to the unreviewed decision of the city's civil service commission," McLaughlin wrote. "Accordingly, plaintiff is not collaterally estopped from contesting in this civil action the basis of the city's decision to terminate her employment."

The city had argued that Wolski should have been able to adequately argue her case before the commission, and that the courts had rejected a similar case involving a postal worker with a bad back.

Judge McLaughlin found that the postal worker's case did not apply since it had been litigated before the Pennsylvania Commonwealth Court after the workers' compensation court issued its decision.

Villella said that Wolski had appealed the commission's decision to a county court, but that Wolski subsequently withdrew her appeal with prejudice.

"An appeal filed and withdrawn with prejudice" means the state court did, in fact, have review over the commission proceedings, Villella told Courthouse News.

Wolski claims that Erie did not afford her an "individualized assessment" to determine whether she posed a direct threat to others before giving her the ax.

The city said such an assessment was unnecessary because Wolski was terminated for past misconduct.

Judge McLaughlin said that if a jury was asked whether Wolski's termination resulted solely from past misconduct or was at least partly motivated by general concerns about her psychiatric disability, "we cannot say that the record is so one-sided."

Villella says he is prepared to take the matter to a jury.

"I have no authority to do anything but go to trial," he said.

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