Frank Donnelly
Staten Island Advance, N.Y.
STATEN ISLAND, N.Y. — A judge has dismissed the federal lawsuit of a female emergency medical technician from Staten Island who alleged gender discrimination and retaliation, in part for participating in the yearly FDNY sexy Calendar of Heroes.
Manhattan Federal Court Judge George B. Daniels ruled Margot Loth failed to show she was treated less favorably due to her gender or that the terms and conditions of her employment were materially altered.
“Plaintiff fails to present ‘proof of specific ongoing discriminatory practices or policies’ nor does plaintiff identify ‘specific and related issues of discrimination [we]re permitted by the employer to continue unremedied for so long as to amount to discriminatory policy or practice,’” wrote Daniels in a decision handed down last week. "... The verified complaint fails to plausibly allege that plaintiff suffered adverse employment action or that defendant was motivated by discriminatory intent.”
Daniels also said some of Loth’s claims were time barred.
Vincent White, Loth’s lawyer, said the rejection does not knock his client out of the box.
White says he plans to file a similar lawsuit in Manhattan state Supreme Court.
“We have not yet begun to fight for Ms. Loth, and we continue to expect a sizable recovery for her at the close of this case,” said White, a principal in the Manhattan-based firm White, Hilftery & Albanese.
Nick Paolucci, a city Law Department spokesman, said the federal court was “correct in dismissing the case.”
“Claims of retaliation or discrimination by the city were not substantiated,” said Paolucci. “We’re confident of prevailing should the case get to state court.”
Loth, 37, originally sued the city last November in Manhattan federal court.
She alleged her ex-boss Capt. Donna Tiberi, who has since been promoted to an FDNY deputy chief, referred to her degradingly as a “calendar girl” after she appeared in the 2019 calendar as Miss March. Tiberi called her “disrespectful” and a “terrible person,” alleged Loth’s civil complaint.
The complaint also alleged Tiberi filed various false disciplinary infractions against her.
In addition, Tiberi rejected Loth’s request for annual leave and Loth was denied overtime driving assignments, maintained the complaint.
The lawsuit also contended that Loth and her male ambulance partner were treated differently for returning to their station before their shift ended on one occasion.
Tiberi slapped Loth with a command discipline that led to an internal investigation but only gave her partner a warning, maintained the suit.
FDNY sources previously told the Advance/SILive.com its Equal Employment Opportunity Department investigated Loth’s claims and found they were unsubstantiated.
While the complaint alleged Tiberi’s “disparaging” comments about Loth being a “calendar girl” were sufficient to infer discrimination, Daniels, the judge, disagreed.
He said merely mentioning Loth’s gender did not rise to that level.
“Similarly, Plaintiff’s subjective impression of Tiberi’s state of mind when she used the ambiguous phrase does not support an inference of discrimination,” wrote Daniels. "' [A] plaintiff’s speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn.’
“Moreover, plaintiff has failed to allege that the remarks were tied to any adverse employment action.”
As for the disciplinary charges against Loth, Daniels said they were resolved at a December 2019 meeting.
Loth settled the cases by agreeing to forfeit three days of annual leave and was allowed to enter the paramedic training program in February 2020.
Loth contended she agreed, under duress, to resolve the charges.
Daniels also shot down that argument.
Loth’s legal papers do not “plausibly allege” she executed the agreement against her free will or that she had no alternative but to sign it.
“Nor has plaintiff plausibly alleged that defendant exerted a ‘wrongful threat’ on plaintiff in order to secure her signature,” wrote Daniels. “Moreover, as a matter of law, an ‘employee does not suffer a materially-adverse change in the terms and conditions of employment where the employer merely enforces its preexisting policies in a reasonable manner.”
The judge also said there was no proof that Loth had been disciplined more harshly due to her sex.
In a prior posting on the FDNY Foundation’s Facebook page, Loth spoke about her reasons for posing for the calendar.
“I know some very strong and beautiful women from the previous calendars, and they were such an inspiration to me,” she said. “We are a force to be reckoned with in this department. We are comfortable with our skills, strong, confident, and we look out for each other. We are opening doors and breaking glass ceilings, and I am proud to be a part of it.”
All proceeds from the calendar’s sale benefit the FDNY Foundation.
The Foundation funds fire safety education and CPR training for New Yorkers — especially children and seniors — as well as training and fitness equipment for FDNY members, the group said in a Facebook post.
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