Charles Eudy was employed as a sergeant by the Richland (Miss.) Fire Department. In the fall of 2004, several firefighters allegedly approached Eudy and expressed concerns regarding the promotional process implemented by Chief Matthew Bailey. The chief had implemented a physical agility test, which a candidate was required to pass to be promoted.

The department made candidates drag a 193-pound dummy, compared to the 170 pounds set by CPAT, 70 feet. Firefighters complained that this test discriminated against older firefighters, and that the heavier dummy caused several injuries.

Eudy met with Bailey on two separate occasions to discuss the firefighters' concerns. After receiving a negative response from the chief, Eudy filed a formal grievance. Thereafter and allegedly in violation of the department's procedural manual, the chief appointed a safety committee to review the grievance. The grievance was returned less than two weeks later with the chief refusing to take any action on the excessive dummy weight issue for the tests scheduled during that period. The chief did, however, agree to obtain a 170-pound dummy for the tests scheduled for the following year.

Eudy then filed a second grievance with the city's human-resource director, reasserting the previously raised safety concerns and challenging the chief's improper appointment of the safety committee. The second grievance was returned, and the chief indicated that candidates would be permitted to use handrails in the stair-climbing portions of future agility tests and that a properly weighted dummy would be ordered for use during future testing.

Eudy claims Bailey severely criticized him for filing the grievances and retaliated against him by engaging in a “deliberate course of intimidation,” coercing firefighters into making false statements against him.

In early 2005, Eudy was demoted to Firefighter II with a 5% reduction in salary and was assigned to another shift. Although the stated reasons for the demotion were that Eudy violated two sections of the city handbook, Eudy claimed he was demoted because of the grievances he filed. Eudy further alleged that in demoting him, the chief violated Section 8.35 of the handbook, which requires the department head to discuss the circumstances of the proposed employment action before imposing discipline. Eudy appealed the demotion to the board of the city, which upheld the actions of the chief.

In January 2006, Eudy filed a lawsuit with the U.S. District Court, Southern District of Mississippi, pursuant to 42 U.S.C. Section 1983, alleging violations of his First and 14th Amendment rights. [Eudy v. City of Richland, Mississippi, F.Supp.2d, 2006 WL 3375259 (Decided Nov. 21, 2006)] The lawsuit was filed against both the city and the chief in his individual and official capacities.

Both the city and chief moved for dismissal of the claims. After reviewing the facts, the court noted that with respect to the First Amendment-right claim, it is well established that “the government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment.” The court ruled that to recover on the First Amendment retaliation claim, the plaintiff must satisfy four factors:

1. The plaintiff must suffer an adverse employment decision,

2. The speech must involve a matter of public concern,

3. The plaintiff's issue and common matters of public concern must outweigh the defendant's interest in promoting efficiency, and

4. The speech must have motivated the defendant's action. (See Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir., 1999). These four questions are referred to as “Harris factors.”)

Having found that Eudy was demoted, the court ruled that he satisfied the first of the four factors. With respect to the second factor and quoting the U.S. Supreme Court, the district judge wrote that:

“When a public employee speaks not as a citizen on matters of public concern, but instead as an employee on matters of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency in reaction to the employee's behavior.… Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record.” [Connick v. Meyers, 461 U.S. 138, 147-48, 103 S.Ct.1684 75 L.Ed.708 (1983)]

The district judge found that the content of the grievances filed by Eudy implicated matters of public concern. Complaints of discrimination in the workplace are matters of public concern. Secondly, the grievances were filed to address safety concerns. The court also found the context and form of Eudy's speech involved matters of public concern. The grievances did not relate to an employment dispute between Eudy and the department, but instead related to the manner in which the department was being operated as a whole.

The court ignored the city's argument that Eudy's election to file internal grievances, as opposed to taking his concerns to the public or media, did not make his speech a matter of public concern. The fact that Eudy spoke with the mayor favored a finding of public speech. Additionally, finding that the grievances did not relate to a personal employment dispute, but instead addressed the manner in which the physical agility test potentially affected other members of the department, favored the finding that the speech was protected.

To satisfy the third factor, a plaintiff must demonstrate that his interest on commenting on matters of public concern outweighs the employer's interest in promotion efficiency within the department. The court noted that it was not required to conduct a balancing test at that point in the court proceedings; however, the court commented that if it were required to conduct a balancing test, the court would find in favor of Eudy, as the defendants did not present any evidence or cite any other conduct that warranted Eudy's demotion. Finally, the court held that because Eudy alleged that he was demoted based on the grievances he filed, he satisfied the fourth factor.

The court found that he could legally maintain a claim under Section 1983 alleging a violation of his First Amendment rights, and that the defendants were not entitled to a dismissal. The court also addressed the chief's motion to dismiss on the basis that he had qualified immunity, which provides protection from civil liability to officials whose conduct does not reasonably violate a clearly established constitutional or statutory right. Noting that the city handbook made clear that employees “have the right to file grievances, without fear of interference, coercion, restraint, discrimination, or reprisal” and that the handbook “expressly prohibits retaliation for filing a grievance,” the court denied the chief's motion to dismiss the claim against him in his individual capacity.

In another free speech case, Lynn Love began working as a financial secretary for the Poke County (Ore.) Fire District in November 1996. Her duties included data entry of training records, where she was responsible for recording what training courses personnel attended.

Mark Prince became the chief of the fire district sometime after Love's employment began. Love disagreed with several aspects of Prince's leadership. For example, when Prince arrived, an internal policy required fire service personnel to attend at least 75% of the training offered by the district. Love noticed that many of the firefighters weren't meeting this requirement and believed that the reduced level of training made the district less safe. Love didn't have any knowledge, however, regarding the state-mandated training standards at that time.

Subsequently, Prince lowered the training attendance standard to 50%. Love believed that lowering the standard was yet another example of the chief's poor management. Love also believed that the quality of training offered through the district was inadequate, as members of the training committee were not qualified for that responsibility.

Love expressed many of her concerns to individuals within the district, including to co-workers who allegedly shared her views. On several occasions, Love expressed generalized concerns about training attendance both to the chief and to his deputy.

Her concerns increased in March 2003 when three firefighters were involved in a training accident and one was killed. Both internal and National Institute of Occupational Safety and Health investigations were initiated.

As part of the NIOSH investigation, the chief assigned Love to gather training records and other potentially relevant information. Love went to the fire marshal to collect the district's standard operating procedures. The fire marshal, who was third in seniority in the district, allegedly informed Love that he was creating SOPs after the fact. Love later told a co-worker that the district was “going to hide the lack of training [from NIOSH], pretending that there wasn't a problem.”

On the same day NIOSH investigators were scheduled to arrive, the chief terminated Love's employment. According to the chief, his decision was based, at least in part, on Love's suggestions to the fire marshal and co-workers that the district was involved in a cover up. The chief also was motivated by Love's discussions regarding the perceived training deficiencies.

Love filed an action against the fire district for wrongful discharge. Love's claims were reviewed by the trial judge and were dismissed. Love appealed. [Love v. Poke County Fire District, 209 OR. App. 474, 149 p.3d 199, 2006 W.L. 3501338 (Court of Appeals of Oregon, Dec. 6, 2006)]

The appellate court began its analysis of Love's claims by noting that Love was an at-will employee who generally could be terminated at will. However, the termination of a public employee may be wrongful under several specific circumstances. The first type of wrongful discharge exception occurs when a termination occurs for exercising a job-related right that reflects an important public policy. The second is when the discharge occurs for fulfilling an important public duty. In Love's case, the court addressed the discharge under the second exception.

The appellate court noted that Love failed to produce any evidence to demonstrate that her training standard complaints were objectively reasonable. In particular, Love failed to offer any evidence that failure to attend 75% of the training sessions constituted a violation of an applicable statute or rule. Love also was unable to identify any statute or rule that would have been violated if the district's training practices were, in fact, substandard. The court stated that, “Without some grounding in an applicable statue or rule, [Love's] complaints based on ‘holistic’ safety concerns, were not objectively reasonable and cannot be deemed to have furthered some important public duty.”

The court then addressed Love's allegations relating to the NIOSH investigation. Congress declared the purpose of NIOSH and other investigatory institutions was to reduce the “substantial burden” caused by workplace injury. NIOSH has broad investigatory powers which includes the authority “to review, abstract, and duplicate such personnel records as pertain to mortality, morbidity, injury, safety, and other similar studies; and to question or interview privately any employer, owner, operator, agency, or employee from the place of employment.”

The alleged back-dating and cover up, if true, obstructed and subverted NIOSH's performance of its public safety-related function. Thus, the NIOSH cover up accusations set forth by Love were not subject to dismissal if Love could produce evidence demonstrating that:

1. Her belief that the fire district was engaged in a “cover up” was subjectively reasonable, and

2. The discharge was related to the complaints of the cover.

The court concluded that the evidence provided by Love was sufficient to satisfy her burden with respect to each of those matters.

The record disclosed that Love had vague and unsubstantiated concerns that the chief and deputy chief might conceal information regarding the district's training practices from NIOSH investigators. Love spoke with the fire marshal, who told her that he was “creating [standard operating procedures] after the fact” to be submitted to NIOSH; that she understood the fire marshal to mean that he was “back-dating” those documents; and that she expressed those concerns to the marshal. The court noted that a reasonable person could understand those remarks as an admission and that the district was fabricating documentation regarding its training practices.

Finally, the court noted that with respect to causation, the chief had admitted in his deposition that Love's discharge was motivated, at least in part, by the questions she had raised with respect to the alleged cover up in the NIOSH investigation. This testimony, coupled with the fact that Love was put on administrative leave the same day the investigators were to arrive, supported a reasonable inference that Love's discharge was prompted by the district's fear that she would voice her concerns to the investigator. The appellate court held that the trial judge had made a mistake by dismissing the common law claim for wrongful discharge as related to the NIOSH allegations and returned the case to the trial judge for further proceedings.

The chiefs in Mississippi and Oregon haven't been found to have committed any wrong-doing. Unfortunately for the chiefs involved, neither judge was willing to dismiss the allegations filed with the court and the chiefs will have to explain their cases to a jury.

The risk of an adverse jury decision must be avoided. Careful and proper interaction with employees is the key to avoiding litigation, but that is easier said than done. Chiefs must be willing to objectively listen to their employees. Even the worst employee will occasionally come up with a great idea or an accurate observation that may involve constructive criticism. Chiefs must try to eliminate personalities from the equation and should address issues on their merits.

Where a chief has to deal with an impossible employee, third parties may be enlisted to address criticisms or grievances that could ultimately result in a courtroom battle. This third party could be a subordinate, a superior or an outside party. Having another person review the complaint or criticism will provide a fresh perspective and uncover potential problems to permit a change of course before it's too late. The chosen party must be willing to listen to the employees' issues objectively, and then point out to the chief the shortcomings of his or her position, if they exist. The chief should be just as willing to listen to advice on operational or personnel matters as to advice on the fireground.

A fire chief also must be willing to justify or explain his or her decisions in detail. A decision must be able to withstand the rigorous cross-examination of both an attorney and the media. Have the factual bases for all decisions well documented, and the action in question well thought out. When it comes to personnel decisions, never move quickly unless there is no other choice.

If a chief must make a decision regarding an employee who has been an outspoken critic of the fire chief or anyone else within the local government, expect a federal lawsuit. In this situation, always consult the department attorney before any final decision is made. As self-serving as this sounds, remember that a good lawyer will save the department money, time and heartburn later.

Legal counsel also can help build a solid case before taking any action against the employee. An attorney will understand what issues and facts the court will rely on if the judge must make a decision prior to the case reaching a jury.

The best defense against retaliatory claims by employees begins with the department's internal attitude of dealing with grievances and the chief's reaction in dealing with the employee in question. It ends ultimately with a jury's verdict. How you will be viewed by the jury is ultimately up to you.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.