D. Del. on Volunteer Fire Companies and the ADA

New on Westlaw: The District Court for the District of Delaware recently issued an opinion in Tawes v. Frankford Volunteer Fire Co., 2005 WL 83784 (D. Del. Jan. 13, 2005). The plaintiff was a volunteer firefighter who claimed that his dismissal from the volunteer fire company was disability discrimination in violation of ADA Titles I and II. The court held that neither title applied. Title I did not apply because the plaintiff was a volunteer, not an employee (and the fire company did not have enough employees -- as opposed to volunteers -- to be a covered entity under Title I). Assuming arguendo that the fire company was a "public entity," the court held that Title II nonetheless did not apply. On that point, the court held that the plaintiff did not seek to "participate" in the fire company's "services" because he wanted to help the company put out fires, not to receive fire protection himself:

The Defendant is correct in arguing that the public entity output here is the service of protecting the community against fires. Title II must be read to guard against discrimination in providing that service. But that is the logical limit. As Plaintiff has not demonstrated a denial of the benefit of fire protection, Title II is not a valid basis for Plaintiff's claim against the Defendant.

This latter holding seems in some tension with the Supreme Court's (Title III) holding in the Casey Martin case.