Tobacco Documents Online

1 N C. DAVIS UANr^. W. RENO ZNCENT J. COURTNEY JR. AVIS & RENO 82 Second Street, Fourth Floor an Francisco, California 94105 elephone: (415) 543-1900 ttorneys for Plaintiffs and Petitioners -s, ons I`sLad y J rr a .,',y ~- 6 -~: Cr'123 U2 FILE21 uY G IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO AN MATEO COUNTY FIRE FIGHTERS ) ~ OCAL 2400, INTERNATIONAL ) SSOCIATION OF FIRE FIGHTERS, ) L-CIO, MARK GREENE, KEVIN RUANE, ) . ) Plaintiffs and Petitioners, ) ) vs. ) ) ITY OF SAN MATEO, RICHARD B. ) ELONG, as City Manager of the ) ity of San Mateo, ARTHUR N. KORON ) s the Fire Chief of the City of ) an Mateo, ROES ONE THROUGH TEN, ) l Defendants and Respondents. ) ) 24 25 OBERT DAVIS, EARL CHINN, CORY ) RAMMEL, RANDY HIMES, KURT ) ALLIDAY, JOHN ROEMER, AAROa SAY, ) OHN S. MOLINELLI, JR., DOES ONE ) HROUGH ONE HUNDRED, ) Case No. 268~~~~ COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PETITION FOR WRIT OF MANDATE F-A

19 1 2 4 14 15 16 17 18 19 20 21 22 23 24 25 AFL-CIO.("Local 2400") is a labor organization within the meaning of Section 1117 of the Labor Code of the State of California and is the recognized employee organization within the meaning of - Section 3501 of the Government Code of the State of California on behalf of all non-management positions of the Fire Department of the City of San Mateo. Local 2400 brings this action on behalf of all persons who will be benefitted by the proper performance of the duties described herein. 2. Plaintiffs Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Kurt Halliday, John Roemer, Randy Himes and Aaron Say are all members of the Fire Department of the City of San Mateo. Said plaintiffs bring this action in their own behalf and on behalf of all other similarly situated employees and successful job applicants of the City of San Mateo Fire Department who have been or will be required to sign "Employment Agreements" in order to obtain employment with the City of San Mateo Fire Department. 3. Petitioner'John S. Molinelli, Jr. is a successful job applicant for the position of Firefighter/Engineer in the City of San Mateo Fire Department. As hereinafter set forth, Petitioner Molinelii has been disqualified from employment by Defendant and Respondent Richard DeLong, acting as City Manager of the City of San Mateo, on the grounds that Petitioner Q Molinelli's father is presently an employee of the City of Q CJ San Mateo Fire Department. Petitioner Molinelli brings this Q~ rl) IN action on behalf of himself and all other job applicants who N -2-

1 2 3 are threatened with disqualification from the City of San Mateo Fire Department for reasons of nepotism. 4. The true names and capacities of Plaintiffs ' and Petitioners DOES ONE THROUGH ONE HUNDRED are unknown to Plaintiffs and Petitioners. Plaintiffs and Petitioners will amend this complaint and petition to show the true names and capacities when the same have been ascertained. 5. Defendant and Respondent City of San Mateo is a municipal corporation duly organized and existing under the Constitution and laws of the State of California. Defendant and Respondent City 'of San Mateo is situated in the County of San.Mateo, State of California and is a public agency 13 14 15 16 17 18 19 20 21 22 23 24 25 26 within the meaning of Government Code Section 3501. 6. Defendant and Respondent Richard B. DeLong is the duly appointed City Manager of the City of San Mateo and has as his duties the management, supervision, the hiring and termination of employees of the departments of said City, including the Fire Department. 7. Defendant and Respondent Arthur N. Koron is the duly appointed Fire Chief of the City of San Mateo, and has as his duties the management, direction and supervision of the employees of the Fire Department, and the examination and recommendation of job applicants for employment in said Fire Department. 8. The true names and capacities of Defendants and Respondents Roes One through Ten, inclusive, are unknown -3-

CC E R. 2 3 4 5 6 8 9 10 11 12 20 21 22 23 24 25 26 to Plaintiffs and Petitioners, who therefore sue said Defendants and Respondents by such fictitious names. Plaintiffs and Petitioners will amend this complaint and petition to show the true names and capacities of said Defendants and Respondents when the same are ascertained. 9. At an unknown date in 1981 Defendants and Respondents unilaterally promulgated rules requiring job applicants in the Fire Department of the City of San Mateo to agree, as a condition of employment and continued employment, to maintain certain physical standards throughout the course of employment, to be retested annually, and to bear the expense of medical "correction" or "physical conditioning" to maintain said physical standards. Said rules provided that non- compliance with the physical standards would automat~ically subject job applicants to disciplinary action. Said rules further provided that job applicants, upon employment, would be required to agree to refrain from smoking tobacco both on and off duty during their tenure of employment. Job applicants were also required to agree that a discharge for smoking tobacco on or off duty would be a discharge for "good cause". Plaintiffs and Petitioners are informed and believe that the aforesaid rules were unilaterally imposed on job applicants without the approval of the City Council of the City of San Mateo. W 10. In November, 1981, the City of San Mateo Fire N I ma Department advertised for job applicants for the position -4-

,k 2 3 4 14 15 16 17 18 19 20 21 22 23 24 25 26 of Firefighter-Engineer. All the plaintiffs and Petitioners named herein successfully completed the examination process. Plaintiffs Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Kurt Halliday, John Roemer, Randy Himes and Aaron Say were offered employment with the City of San Mateo Fire Department on the condition that said Plaintiffs would sign an "Employment Agreement" containing the physical standards, the annual retesting requirements, the no smoking prohibitions and the automatic termination provisions referred to in paragraph 9, above. A true and correct copy of said "Employment Agreement" signed by said Plaintiffs, is attached hereto and identified as Exhibit A, and incorporated herein by reference. 11. Aforesaid Plaintiffs Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Randy Himes, Kurt Halliday, John Roemer and Aaron Say were required sign aforesaid "Employment Agreement" in order to obtain employment with the Fire Department in the City of'San Mateo. to 12. Aforesaid "Employment Agreement" is an unlawful and unenforceable contract of adhesion in that said "Employment Agreement" was imposed by a party of superior bargaining strength and because the terms of said "Employment Agreement" W ~ are unduly oppressive and unconscionable. Said "Employment W ~ ~ Agreement" is also unenforceable in that said agreement T) U1 violates the provisions of California Civil Code Section 1670.5.

1 2 3 4 5 6 7 8 CC 13. Unless restrained and enjoined from doing so by order of this Court, the enforcement of the aforesaid "Employment Agreement" will cause great and irreparable injury to plaintiffs and to employees represented by the plaintiff and petitioner Local 2400. 14. Plaintiffs have no adequate remedy at law for such injury in that monetary damages would not provide an adequate remedy. 15. Plaintiffs' action herein seeks to vindicate I important constitutional rights. Plaintiffs are therefore 13 14 15 16 17 18 19 20 21 22 23 24 25 26 entitled to recover reasonable attorney's fees pursuant to 42 U.S.C. Section 1988 and California Code of Civil Procedure Section 1021.5. Plaintiffs are also entitled to attorney's fees for respondents' arbitrary and capricious actions pursuant to Government Code Section 800. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. SECOND CAUSE OF ACTION (.Right of Privacy) 16. Plaintiffs Local 2400, Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Randy Himes, Kurt Halliday, John Roemer and Aaron Say reallege and restate paragraphs 1 through 15 of their FIRST CAUSE OF ACTION and incorporate said paragraphs and said allegations as if fully set forth in this SECOND CAUSE OF ACTION. // -6-

CC C~ 1 2 7 8 9 10 11 12 13 14 15 16 17 18 24 25 17. Defendants and Respondents' requirement of an employment agreement to refrain from smoking tobacco on or off duty and Defendants and Respondents' threats to discharge any applicant or employee represented by plaintiff union for smoking tobacco while off duty violates the right of the individual plaintiffs herein and the rights of persons represented by plaintiff Local 2400 to privacy as guaranteed by Article I, Section 1 of the California Constitution, the United States Constitution and 42 U.S.C. Section 1983. ' WHEREFORE, plaintiffs pray for judgment as hereinafter set forth. THIRD CAUSE OF ACTION (Equal Protection) 18. Plaintiffs Local 2400, Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Randy Himes, Kurt Halliday, John Roemer, and Aaron Say reallege and restate Paragraphs 1 through 11 and Paragraphs 13 through 15 of their FIRST CAUSE OF ACTION and incorporate said paragraphs and said allegations as though fully set forth in this THIRD CAUSE OF ACTION. 19. Defendants and Respondents' actions of requiring job applicants and other employees represented by plaintiff Local 2400 to refrain from smoking tobacco while on or off duty and to maintain a physical conditioning and retesting 03,73S~1,27 program as a condition of employment deprives said job applicants and said employees represented by plaintiff Local 2400 of equal -7-

C (C 1 2 7 8 9 10 11 12 13 14 15 16 17 18 24 25 rotection of the laws in violation of the Fourteenth Amendment of the United States Constitution, 42 U.S.C. Section 1983, and Article I, Section 7 of the California Constitution in that a non-smoking agreement, the physical conditioriing and retesting program are not " equired of other firefighters and other public safety employees employed by Defendant and Respondent City, and also not required of ther non-public safety employees of Defendant and Respondent City. here is no compelling state interest or rational basis for imposing said requirements on firefighter job applicants who have become employees of the City of San Mateo Fire Department. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. I FOURTH CAUSE OF ACTION ' (Privileges and Immunities) 20. Plaintiffs Local 2400, Mark Greene, Kevin I Ruane, Robert Davis, Earl Chinn, Cory Trammel; Randy Himes, Kurt 0alliday, John Roemer, and Aaron Say reallege and restate Paragraphs 1 through 11 and Paragraphs 13 through 15 of their FIRST CAUSE OF ACTION and incorporate said paragraphs and said allegations as though fully set forth in this OURTH CAUSE OF ACTION. 21. Defendants and Respondents' actions of requiring firefighter job applicants to refrain from smoking tobacco ff duty and to maintain a physical conditioning and retesting rogram as a condition of continued employment while not 03''J;jSf2,^8 equiring other employees and other employees represented by

1 2 3 4 5 6 plaintiffs to refrain from smoking tobacco off duty as a condition of employment is a violation of the privileges or immunities clause of the Fourteenth Amendment of the United States Consitution, 42. U.S.C. Section 1983, and further violative of the privileges or immunities clause of Article I, Section 7 of the California Constitution in that there is no necessity for requiring one group of persons to refrain from or promise to refrain from smoking tobacco on or off duty and to maintain a physical conditioning and annual retesting program as , conditions of employment in that all other firefighters employed by the City of San Mateo are not subject to said employment conditions. The distinction between the two 14 15 16 17 18 19 20 21 22 23 24 25 26 firefighter groups is arbitrary and capricious in that it bears no relationship to the applicants or employees' ability to perform the responsibilities of their position. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. FIFTH CAUSE OF ACTION (Unlawful Oath or Declaration) 22. Plaintiffs Local 2400, Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Randy Himes, Kurt Halliday, John Roemer and Aaron Say reallege and restate Paragraphs 1 through 11 and Paragraphs 13 through 15, inclusive, of their FIRST CAUSE OF ACTION and O incorporate ~ C.: the same therein as though fully set forth. GO Cn r.~

1 2^ 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 23. The aforesaid "Employment Agreement" constitutes an oath or declaration required by respondents as a qualification for public employment in violation of Article II, Section 3 of- the California Constitution and Section 1364 of the California Government Code. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. SIXTH CAUSE OF ACTION (Labor Code Violations) 24. Plaintiffs Local 2400, Mark Greene, Kevin Ruane, Robert Davis, Earl Chinn, Cory Trammel, Randy Himes, Kurt Halliday, John Roemer and Aaron Say reallege and restate Paragraphs 1 through 11 and Paragraphs 13 through 15 of their FIRST CAUSE OF ACTION and incorporate the same herein as though fully set forth. 25. Defendants and Respondents requirement of an "Employment Agreement" containing a provision that firefighter engineers bear the expense of medical correction or physical conditioning is contrary to public policy in that it conflicts with the policy of the state to provide for medical care and O rehabilitation services for employees injured or incapacitated W ~ due to their employment. Labor Code Sections 4600, 139.5, T ::n sub. (c), 3207. ~ WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. // -10-