Disciplining employees is never pleasant or easy. It becomes even more difficult when the employee subject to the discipline has a history with the department that can raise issues regarding the motivation for the discipline.

David Phillips was a firefighter for the city of Victoria, Texas, and president of the Victoria Firefighters Union, when he was alleged to have been involved in an off-duty accident with his motorcycle while intoxicated. After the accident, Chief Vance Riley suspended Phillips' city driving permit.

Phillips took exception to the suspension, particularly when ultimately he was not convicted of driving while intoxicated. He believed that the real cause for his suspension was retaliation for a signed grievance he had submitted to the city on behalf of the union asserting that Riley had made “reckless, dangerous, and hazardous decisions and judgments in the delivery of the fire department's services to the public,” and calling for Riley's termination.

The dispute eventually ended up in the U.S. Court of Appeals in a case entitled Phillips v. City of Victoria, et al., No. 06-40629, U.S. Court of Appeals for the Fifth Circuit (2007), where the court reviewed a decision by the U.S. District Court denying Riley's motion for summary judgment. Riley argued that he was entitled to immunity, that his conduct was not objectively unreasonable in light of clearly established law, and that there was no significant dispute as to the facts. If Riley were to succeed with his motion, the case would be dismissed and no trial on the matter would be held.

Riley began by conceding that his suspension of Phillips' city driving permit was an adverse employment action. Furthermore, he did not challenge the district court's determinations that Phillips' grievance was speech that was related to a matter of public concern and that Phillips' interest in speech and association outweighed the city's interest in promoting efficiency. Rather, he challenged the district court's determination that there was a genuine issue of fact in the case and that a trial was necessary for a finding of fact regarding whether his conduct was indeed motivated by Phillips' grievance against him.

Riley argued that Phillips' summary-judgment evidence was insufficient to establish that his decision to suspend Phillips' permit was, in fact, motivated by the grievance. He contended that the real reason that he suspended Phillips' permit was because Phillips allegedly drove his motorcycle off duty while intoxicated and was involved in an accident. Riley further argued that the suspension was inevitable under city policy and that only City Manager Denny Arnold had the authority to impose any less discipline. At oral argument in the court of appeals, however, Riley shifted his argument from whether Riley himself inevitably would have suspended Phillips' city driving permit to whether Arnold and Asst. City Manager Charles Windwehen inevitably would have done so.

The district court had determined that Phillips' summary-judgment evidence was sufficient to create genuine fact issues regarding both whether Riley's decision to suspend Phillips' permit was motivated by Phillips' grievance against Riley and whether the suspension was inevitable. In reaching its conclusion, the district court relied on evidence of Riley's “extraordinary” investigation of Phillips' motorcycle accident in which Riley allegedly told the district attorney that he hoped he “didn't give leniency” to Phillips, as well as evidence that Phillips was treated differently than other firefighters whose misconduct violated the fire department employee manual.

The lower court summary judgment record also contained assertions that Riley told Phillips' attorney that Phillips' employment would not be affected by the incident so long as Phillips was not convicted of driving while intoxicated and that Phillips' accident did not fall under any of the circumstances in the city's “Driving of Vehicles” policy that required the suspension of his city driving permit.

In addressing Riley's contention that Arnold, rather than he, was the final decision-maker in the decision to suspend Phillips' permit, the district court disagreed with him and determined that “Riley was the final decision-maker for purposes of determining causation” because Arnold and Windwehen reviewed Riley's decision only after Phillips chose to appeal it, and without this elective review, Riley's decision to suspend would have been final.

Riley actually presented an affidavit from Arnold that he claimed “unquestionably establishe(d)” that Arnold made the final decision to suspend Phillips' city driving permit. The district court noted that Arnold's affidavit stated that the decision to suspend the permit was not final until Arnold and Windwehen completed their independent reviews. Citing earlier precedent, however, the court said that it was clear that “the mere authority to review an employment decision is not decisive.”

Other relevant factors in relation to this case include whether Riley had the authority to suspend Phillips' city driving permit, whether Windwehen's and Arnold's reviews were merely elective on the part of the employee or instead were necessary to finalize the decision, and whether the review was for “conformity with applicable law and regulations.” The court then observed that to the extent that Riley's arguments were fact-based, it lacked jurisdiction to review the correctness of the district court's conclusions.

Riley also contended that he was entitled to state official immunity from Phillips' state law claim for the same reason that he was entitled to qualified immunity — because he had established “that he ha(d) not denied Phillips public employment because of his membership or nonmembership in a labor organization.” But the court concluded that this immunity argument relied solely on the sufficiency of Phillips' evidence. In other words, the argument assumed that there was no evidence to the contrary requiring a jury to make findings of fact. The court concluded that it must defer to the district court's decision in this regard and therefore lacked jurisdiction to address this portion of Riley's appeal.

The court next addressed a question regarding another affidavit that had been considered by the district court. Evidence had been submitted regarding allegations that another firefighter was rumored to have reported to work while intoxicated and the rumor was investigated. Although Riley contended that the affidavit was irrelevant, the court disagreed, saying that it was presented to show Riley's intent, and intent is a critical element of a First Amendment retaliation claim. Furthermore, the court said that because the rumor in the other case was investigated, this evidence went to the question of whether Phillips was treated differently from other firefighters in that regard.

Riley next argued that his decision to suspend Phillips' city driving permit did not violate a clearly established constitutional right because the suspension was based on the allegation of driving while intoxicated, and Phillips had no clearly established constitutional right to violate city policy by driving while intoxicated. The court again disagreed with Riley, though, saying that his argument improperly advanced his version of the genuinely disputed facts concerning what motivated him to suspend Phillips' permit. The court said that beyond advancing his version of the factual dispute, Riley did not challenge the district court's legal conclusion that the violation of the rights Phillips alleged was clearly established.

Furthermore, the court went on to say that he could not succeed on such an argument if he did make it. Phillips had alleged that Riley suspended his city driving permit because Phillips filed a grievance against Riley on behalf of the union. The court noted that in a previous case, it had held that a firefighter's public speech regarding a staffing shortage in the fire department and the shortage's impact on firefighter and public safety were related to a matter of public concern such that the subsequent suspension of the firefighter on the basis of his speech violated the First Amendment. The court added that it is clearly established that a government employer violates the First Amendment when it retaliates against an employee for engaging in union activities.

Finally, Riley contended that even if Phillips' constitutional rights were violated, his own conduct in suspending Phillips' permit was objectively reasonable because:

1. An arguable basis existed for his actions given city practice,

2. Windwehen and Arnold agreed with his decision to suspend the permit, and

3. Phillips' misconduct required a suspension.

Once again the court disagreed, saying that each argument improperly hinged on Riley's version of facts that were genuinely in dispute concerning what motivated his decision to suspend Phillips' driving permit and the circumstances under which Phillips' suspension was inevitable. The court said that intent is a “critical element” of a First Amendment retaliation claim. For this reason, an official's intent or the reasons for his or her actions are an essential element of the underlying violation, and the court must treat factual disputes over intent just like any other factual dispute that can justify a denial of qualified immunity.

The court said that Riley's conduct, as presented in the summary judgment record and viewed in Phillips' favor, was objectively unreasonable in light of clearly established law, and that this created a dispute as to the facts, which a jury must resolve. The court then affirmed the district court's order denying Riley's motion for summary judgment, which meant that the matter would proceed to trial.

This case, although unpublished and therefore not constituting binding precedent, nonetheless highlights the difficulty of taking disciplinary action when there has been a history of disagreement with the employee in constitutionally protected matters. Some thoughts to keep in mind are:

• There is frequently a factual dispute in most cases. It is hard to avoid going to trial.
• Intent is an important element in a First Amendment retaliation claim. It is essential to document the reasons for taking a particular action.
• If disciplinary action involves an employee with a disciplinary record, be prepared to show why your action is justified based on the infraction at hand.
• Evidence of how similar violations involving other employees have been dealt with is helpful in justifying current action.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation.