A seasonal firefighter who the US Forest Service (FS) refused to rehire due to something he wrote Facebook, won his case before the Merit Systems Protection Board. After the judge ordered that the agency reinstate him and give him back pay, the firefighter agreed to a $115,000 settlement from the FS.
Pedro Rios worked on the Klamath National Forest at Grass Lake Station on the Goosenest Ranger District. He had 12 years of firefighting experience with a private contractor and the FS.
In July, 2020, about six months into the COVID pandemic, Mr. Rios and his strike team were dispatched to Southern California. They did not quarantine before or after traveling. When they were told to return from what was considered a “hot zone”, and being on standby at a fire station where employees had tested positive for COVID days or weeks before their arrival, they were told that instead of quarantining for a week or more, they were supposed to “self-isolate” if they experienced symptoms after return.
Mr. Rios at that point thought of his son who in 2019 was life flighted to Children’s Hospital in Davis, California and kept for 2 days for labored breathing due to severe asthma. His fiancée also has asthma, but not to the same degree.
Worried about the impact his crew returning without quarantining would have on his hometown and his family, on July 8, 2020 he wrote a post on the Siskiyou Coronavirus Community Response Facebook page. He included a screenshot of the top management positions on the Klamath NF.
In the post, after explaining that the plan was for the personnel to return without a quarantine, he name-checked the Fire Staff Officer on his home forest, “so the public can voice their concerns to him as well.”
District Ranger Drew Stroberg led the effort to not rehire Mr. Rios for the next season even though his performance ratings were fully satisfactory and an employee relations specialist told the Ranger that Mr. Rios likely had whistleblower status. Mr. Stroberg was also advised that he had no choice but to rehire the firefighter.
While working with a crew at the Little Soda Fire on the Klamath NF in late July, 2020, Mr. Rios noticed a newly hired firefighter who was exhibiting symptoms of rhabdomyolysis. If left untreated, severe rhabdo may be fatal or result in permanent disability. After Mr. Rios took the necessary steps to ensure he received medical attention, the firefighter was removed from the fire and was hospitalized. The crew boss had failed to take action earlier after the firefighter was throwing up in the truck. The crew boss reported that Mr. Rios had a negative attitude. One of the crewmen testified in the hearing that Mr. Rios “saved the guy’s life,” was a good leader, and he did not have a bad attitude. In the court proceeding several witnesses in addition to Mr. Rios testified that the crew boss did not prioritize safety.
Michael S. Shachat, the Administrative Judge who oversaw the case for the Merit Systems Protection Board, said Mr. Rios’s Facebook post “broke no rules and raised legitimate concerns through the only forum he felt he had available to him to do so.” He also ruled that Mr. Rios had whistleblower status and that the Forest Service retaliated against him by preventing him from being rehired.
“I find that Stroberg’s frustration with the appellant’s alleged unprofessional choice to raise his concerns on social media and his comments to the appellant in setting ‘expectations’ for future conduct is itself evidence of a motive to retaliate,” the judge wrote. “Considering the record as a whole, I find that there is strong evidence of a retaliatory motive on the agency’s part, particularly with respect to Stroberg.”
In his decision, Judge Shachat ordered the FS to pay Mr. Rio the back pay he missed, with interest. In addition, he ordered the agency to place Mr. Rios in the same position he would have been in had he been rehired for the 2021 fire season. He also ordered the agency to remove Mr. Rios from any “DO NOT REHIRE” lists.
Mr. Rios told Wildfire Today that he “applied for 350 permanent positions with a stellar record of signed evals.” But now, “Although I have zero interest in returning to USFS I will continue to speak out against USFS Management in the hopes that my verdict can and will be used as a precedent and expose how limited USFS Management’s authority is and show if they try to retaliate EEOs can uncover their behind the scenes behavior regardless of how they try to pass it off to the employee and ER/HR.”
“I’d also like to point out,” Mr. Rios said, “[the crew boss’s] history of lack of safety for his personnel resulted in several employees being put on light duty after several dehydration issues. My case is just the best documented incident so far.”