Ex-firefighter’s complaint detailed

January 3, 2019

KANKAKEE — A former Kankakee firefighter said he was fired in 2016 when the city’s doctor determined he could no longer meet the job’s physical requirements, according to his complaint against the city.

Former firefighter John Burke’s own doctor, however, released him for full duty four days after he hurt his back, the complaint says.

Last month, the Kankakee City Council voted for a settlement agreement with Burke. But the city said it won’t release the document until Burke signs it. Watchdog groups contacted by the Daily Journal are split on whether the city can legally withhold the document from the public.

On July 21, 2016, Burke filed a grievance with the Equal Employment Opportunity Commission. He alleges the city discriminated against him in violation of the Americans With Disabilities Act.

Burke was hired in July 2015 after successfully completing a background check and psychological and medical exams, according to the complaint.

On April 19, 2016, he hurt his back. After being admitted to a hospital, he was diagnosed with early degenerative disc disease by an orthopedic spinal care physician, the complaint said.

On April 23, 2016, his doctor released him to work for full duty without restrictions. But the city’s doctor said Burke only could return to work on a “light duty” basis in which he could lift no more than 50 pounds, the complaint said.

When Burke requested records from the city doctor’s exam, he only received blank evaluation sheets and other incomplete documents consisting of the 50-pound restriction without any time parameters, according to the complaint.

In early May 2016, Burke asked to be re-evaluated by the city’s doctor or be sent to an independent doctor for another opinion about his ability to return to full duty, the complaint said. Alternatively, he asked for the opportunity to undergo a “functional capacity” exam. The city rejected all of Burke’s requests, according to records.

On May 5, 2016, the city told Burke he could no longer meet the job requirements and would recommend his termination. Four days later, Burke’s doctor examined him with respect to his job description and found he could perform all the duties without restrictions, the complaint said.

He was fired May 10, 2016, less than a month after he hurt his back.

On Friday, the city released Burke’s EEOC complaint more than a month after the Daily Journal filed an open records request for it. The newspaper also sought the city’s responses to the EEOC, but the city provided no documents in answer to that request.

While the city provided the grievance, it denied the Daily Journal’s request for the settlement agreement that the City Council approved on Dec. 17.

The state Freedom of Information Act states that settlement agreements are public record, but the city said it can legally withhold the record in Burke’s case.

“Legal has informed me that it is not an agreement until signed by both parties,” Kristine Schmitz, the city’s Freedom of Information Act officer, wrote in an email.

However, watchdog group Citizen Advocacy Center, based in Elmhurst, said the settlement should “absolutely” be released.

“The City Council has already taken final action on it. It has to be a public record,” said Ben Silver, a lawyer for the center. “They seem to be dragging their feet as much as they can, and I can’t figure out why.”

Don Craven, a lawyer for the Illinois Press Association, disagreed. He said the city is not legally required to release the settlement.

“I don’t think there is an agreement until all parties sign,” he said.

The Daily Journal could not reach Burke for comment. Little information is available about him.

Even though he worked for the fire department for less than a year, he was honored at least twice for his service.

In October 2016, Burke, who already had left the fire department, attended a council meeting to receive a Meritorious Service Award from the city. Then-Mayor Nina Epstein said Burke performed rescues from a ladder to the second floor of a building engulfed in flames a few months earlier.

In May 2017, Burke was one of 24 firefighters honored statewide with the Firefighter Excellence Award for acts of service in the line of duty and demonstration of professionalism in service to the public.

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