Lawyers for FDNY chiefs want allegations of affair kept in ageism lawsuit

By Thomas Tracy
New York Daily News

NEW YORK — In the ageism lawsuit by FDNY chiefs against the city and Fire Commissioner Laura Kavanagh, one side’s salacious claim is the other’s critical detail.

New court papers filed by the chiefs’ lawyers argue that lawsuit details labeled by city attorneys as “scandalous and prejudicial” are in fact very revealing.

City lawyers’ push to excise from the chiefs’ lawsuit the “salacious” claims about Kavanagh’s alleged affair with another FDNY official and allegations of her poor administrative decisions are an attempt to “neuter the truth,” the new papers say.

Portions of the lawsuit city lawyers want removed from the case “tell the story of this conspiracy,” the chiefs’ lead attorney, Jim Walden, says in a brief that asks a Brooklyn Supreme Court judge to keep in the 88-page legal complaint more than 160 paragraphs the city wants to remove from the case.

Assistant Fire Chiefs Michael Gala, 62, Joseph Jardin, 61, Michael Massucci, 59, Frank Leeb, 54, retired EMS Chief James Booth, 59, and EMS Computer Aided Dispatch Programming Manager and Deputy Director Carla Murphy, 56, say they were targeted by Kavanagh and her team “because they were at or near the age of 60” according to their lawsuit in Brooklyn Supreme Court.

At 41, Kavanagh, New York’s first woman fire commissioner, is also one of the city’s youngest.

City attorneys claim that “scandalous” claims peppered throughout the chiefs’ lawsuit — including discussions about department brass unrelated to the case — “do not even remotely go to any of the material elements of [the chiefs’] claims.”

“Plaintiffs [the chiefs] have now filed multiple versions of the complaint, each with more hyperbolic allegations than the last,” the city’s Law Department said in a motion filed in August. “The vast majority [of the issues in the latest version of the complaint] have nothing to do with plaintiffs’ fanciful age discrimination and retaliation claims.”

Walden disagrees. He says the allegations opposed by city lawyers provide context behind Kavanagh’s executive decisions as well as “conclusive proof” of the “systematic war” she is waging against his clients.

The chiefs claim they were harassed, maligned and ultimately demoted because in Kavanagh’s eyes, they seemed too old.

“The defendants do not want these relevant and damning details before a jury,” Walden wrote in his response to the city’s motion. “Their motion is their attempt to neuter the truth.”

In his brief, Walden wrote about new allegations against Kavanagh and a co-defendant, Deputy Commissioner Jon Paul Augier.

The city wants erased from the complaint mentions of five-year-old rumors of a relationship between Kavanagh and Augier. The mentions of rumors are presented without any evidence of any relationship between the two.

Walden says his clients never alleged a relationship between Kavanagh and Augier — though the chiefs’ lawsuit claims Kavanagh accused Gala of spreading that rumor as part of a campaign to remove him from his position in the FDNY.

In addition, the chiefs’ lawsuit claims, Kavanagh promoted Augier even though he had been “accused of racial discrimination.”

“(Augier) repeatedly harassed two Black firefighters in his firehouse, including by hanging a noose,” Walden wrote in his latest brief.

“(Her) knowledge was not indirect: a senior officer told her about the conduct (and trial evidence will show she followed up by interviewing one of the victims herself),” he wrote.

Moreover, the filing claims, Kavanagh believed Augier was responsible for the racial harassment, but she and another FDNY official, Joseph Pfeifer, concluded Augier had “reformed” and promoted him anyway.

Augier was made a deputy commissioner “over an older and more experienced woman,” which dovetails into the ageism claims, Walden wrote.

“Put bluntly, defendants tolerated racism to accomplish ageist ends … even faced with a younger employee who Kavanagh believed had engaged in actual racist behavior on the job, Kavanagh (and Pfeifer) were apologists who still preferred the younger man over an older and more experienced woman,” Walden wrote.

Walden said the claim will help a jury understand his clients’ case. He says that Kavanagh wrongly “seeks to justify her ageism as promoting ‘diversity’” when in truth she promoted a man she believed “engaged in racist harassment against two firefighters in his own firehouse.”

“This is just wrong,” Walden said.

Walden said he has two witnesses that will confirm Kavanagh knew about the discrimination when she was deciding to promote Augier — and had spoken to the victim of the discrimination — but greenlit the promotion anyway.

“The city’s strategy is obvious: keep evidence of blatant discrimination away from the jury. It won’t work,” Walden told the Daily News.

Asked about the chiefs’ allegations about Augier, an FDNY spokeswoman said that the “entirety” of what is written in the chiefs’ filing “is false.”

The racism incident noted in Walden’s brief was rumored to have occurred around 2002, but didn’t become known inside the department until about a dozen years later, said a source with knowledge of the case. The allegations of Augier’s racism were never officially reported to the department — and Kavanagh didn’t know about any investigation or complaint against Augier since none had been filed, the source said.

The department looked into the rumor about Augier’s behavior, but couldn’t confirm any of the allegations, the source said.

Kavanagh was deputy fire commissioner when Augier was bumped up in rank and the promotion was vetted by both the fire department and the city before it went through, an FDNY official said.

FDNY officials note that Augier is a 9/11 first responder who received a medal of valor for saving a woman from a fire in Chinatown in 2009.

Over the years he’s helped modernize the department’s training and fitness programs and is currently overseeing the modernization of the fire dispatch system and brainstorming ways for technology to increase public safety, department officials said.

The city is expected to respond to Walden’s arguments in the next few weeks. A judge is expected to look over the arguments in October.

The department has repeatedly labeled the chiefs’ lawsuit as “baseless” and “just an attempt to undermine the authority of the Fire Commissioner.”

The chiefs sued Kavanagh in March, about a month after Kavanagh demoted Gala, Jardin and Assistant Chief Fred Schaaf to deputy chief.

Their demotions sparked a mass protest by FDNY chiefs who criticized Kavanagh and asked to be demoted in rank and moved out of department headquarters. So far, Kavanagh hasn’t signed off on any of the demotion requests, FDNY officials said.

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