You know that it's not going to be a good day when the court's opinion in the lawsuit against you begins with: "This First Amendment retaliation action presents another example of what happens when grown men act like 5-year-olds." This is exactly what happened in the case of Shanks v. Village of Catskill Board of Trustees, et al.
Joel and Ricky Shanks, members of the Catskill (N.Y.) Fire Company, sued the village of Catskill, the Catskill Fire Department and the volunteer Catskill Fire Company, along with various members of those organizations, alleging that they had been subjected to harassment and threats because they reported company safety violations to OSHA and the New York State Public Employee Safety and Health Bureau (PESH). All of the defendants filed motions for summary judgment, which means that they asked the court to dismiss the Shanks' complaints for failure to allege a violation of law. The Shanks' allegations follow.
On Oct. 4, 2005, Joel Shanks anonymously reported to OSHA and PESH multiple safety violations that he alleged were committed by the company. These violations included outdated aerial ladder inspections, lack of safety equipment, firefighters with facial hair wearing SCBA, outdated equipment, lack of training and standards, and failure to follow OSHA standards. His complaint alleged that after this report, the fire chief told all of his firefighters to keep their mouths shut and indicated that when they found out who filed the complaints, they were "going to take care of business."
Joel Shanks further alleged that one of the lieutenants told him that whoever made the complaint was going to be thrown out; that the chief stated to firefighters and civilians that if he became a paid village fire chief, he would "throw out the scumbag Shanks boys;" that the company refused to issue helmet shields to either Joel or Ricky Shanks; that it refused to place them on the fire department's Web site list of members; and that it refused to qualify them as ladder-truck drivers, even though they had passed the necessary road test. Joel Shanks further alleged that the president of the company board and other members frequently said that they were in the process of creating a disharmony law in order to throw out those who reported violations.
Joel Shanks filed additional complaints with PESH in December 2005 and January 2006, alleging harassment by the defendants. At about the same time, Ricky Shanks also submitted an anonymous complaint with PESH about safety violations at the Catskill firehouse, which included improper vehicle maintenance, unqualified operators, unrepaired equipment, falsification of paperwork and outdated aerial ladder inspections.
The plaintiffs alleged that after they filed these new complaints, the village president and other personnel threatened to punish whoever made the safety complaints while staring directly at Joel Shanks; that one of the captains and another member assigned the plaintiffs menial tasks normally performed by less-experienced or probationary firefighters; that a company board member called the Shanks "rats" and "scumbags" at a Sunday morning breakfast; that the village president said that he was going to find out who turned in the village and said that "they were going to have hell to pay;" and that they w frequently ere subjected to thinly veiled physical threats, were harassed with insults such as "rats," "scumbags" and "troublemakers," and were ostracized by the other firefighters.
On March 13, 2006, the village board unanimously voted to place Joel Shanks on administrative leave with full benefits pending completion of an investigation into his allegations of being harassed and not feeling safe. He was advised not to participate in any company activities and was removed from the list of active firefighters. Joel Shanks alleged that after he was placed on administrative leave, company firefighters would drive by or park outside his house and make obscene gestures, yell insults and threats, and/or blast air horns and sirens late at night. He further alleged that the fire chief called the police when he drove onto the firehouse premises and that he was threatened with arrest. Shanks also alleged that in October 2006, he received an invitation to the company's annual banquet, but approximately two weeks later was told that the invitation was sent in error and that he would be asked to leave or escorted off the premises by the police if he attempted to attend. He also claimed that one of the village board members made a speech at the annual banquet in which he stated that the "disgruntled fireman" had been run off, would not be allowed back, and that the fire department was better off without him.
Meanwhile, Ricky Shanks alleged that his fire helmet was stolen from the firehouse and that the company refused to issue a new one to him until PESH demanded that it do so. He likewise alleged that he continued to be assigned menial tasks and was subjected to verbal harassment by other firefighters. Ultimately, both Ricky Shanks and Joel Shanks were expelled from the company and brought suit under 42 U.S.C. Section 1983 of the Civil Rights Act, arguing that the actions of which they complained were taken as retaliation and therefore in violation of their right to freedom of speech guaranteed by the First Amendment.
Punishment Prohibitions
In the court's review of this case, it observed that while the government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their protected speech. It then set out the framework for establishing a First Amendment retaliation claim against the government. In order to prevail, the employee must prove:
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1. That his or her speech was constitutionally protected;
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2. That he or she suffered an adverse employment action; and
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3. A causal connection between the speech and the adverse employment action.
Even if the employee can meet these three requirements, the government may still avoid liability if it makes one of two showings. They are that either:
- It would have taken the same adverse action regardless of the protected speech; or
- The plaintiff's expression was likely to disrupt the government's activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First Amendment expression.
The court then proceeded to consider whether the speech at issue in this case was a matter of public concern rather than that of an employee on matters of personal interest. It said that speech by a public employee is on a matter of public concern if it relates to "any matter of political, social or other concern to the community." The court concluded that reporting safety violations clearly qualifies as speech on matters of public concern under the First Amendment.
The court next evaluated whether the plaintiffs had suffered adverse employment action. It said that only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action. Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay and reprimand. However, lesser actions such as negative reviews, false accusations and menial job assignments also may be considered adverse actions.
It said that while relatively minimal incidents standing alone would not give rise to a First Amendment retaliation claim, "a combination of seemingly minor incidents may form the basis of a constitutional retaliation claim once they reach a critical mass." It also said that such incidents may create "a working environment unreasonably inferior to what would be considered normal for that position."
The court then found that the plaintiffs' complaints painted a picture wherein they had been subjected to a sustained, systematic course of verbal harassment, threats, ostracism and generally demeaning behavior in order to drive them out of the company. It found that these actions alone would be enough to establish adverse employment action under a "critical mass" theory, but went on to state that termination clearly qualifies as an adverse employment action and was the "final nail in the coffin on the issue."
Cause and Effect
The court then took up the question of causation, since it was necessary for the plaintiffs to establish a causal relationship between the protected speech and the adverse employment action. The court said that the "causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employees' protected speech." The court found that the plaintiffs had presented sufficient evidence to allow a jury to reasonably find that the defendants' adverse actions were motivated by an intent to retaliate.
Having found that the plaintiffs had provided sufficient facts to support their claim, the court then considered whether the defendants had established their defense by showing either that they would have taken the same adverse action in the absence of the protected speech or that the plaintiffs' speech would disrupt the government's activities and such disruption was sufficient to outweigh the First Amendment value of the speech. The court then cited and reviewed the Pickering test.
Under Pickering, a government employer may fire an employee for speaking on a matter of public concern if:
- The employer's prediction of disruption is reasonable;
- The potential disruptiveness is enough to outweigh the value of the speech; and
- The employer took action against the employee based on this disruption and not in retaliation for the speech.
In applying this balancing test, courts may consider whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. Furthermore, the manner, time and place in which the speech occurs are important in determining whether it is protected. For example, the Pickering balance is more likely to favor the government when an employee directly confronts his supervisor with objectionable language than when an employee engages in equivalent speech on his own time and not in front of coworkers. The weight afforded each side of the Pickering balance also varies with the content of the speech. The more the employee's speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown.
In applying the Pickering test to this case, the court found that the defendants could point to no evidence indicating that the plaintiffs made openly abrasive complaints or threats to members of the company or other departments. Rather, the plaintiffs' safety complaints were made anonymously to OSHA and PESH, which the court said indicated a desire to maintain harmony within the company. Further, insofar as the plaintiffs' speech addressed the adequacy of company training and the integrity of company equipment, it touched on matters of far greater public concern than complaints about such things as accounting practices or the disbursement of grant money, for instance. Indeed, the court said that the plaintiffs' complaints went to the very heart of the company's ability to effectively and safely perform its public function. The court said that the defendants had presented no evidence that the regular operation of the company was significantly disrupted by the plaintiffs' speech.
The court then held that, given the great public concern of the plaintiffs' speech, the non-abrasive manner in which it was made, and the relatively slim evidence of company disruption resulting from it, the defendants' interest in maintaining an espirit de corps did not outweigh the plaintiffs' exercise of free speech. The court went on to say that even if it were to assume that the plaintiffs' speech had caused a significant disruption in the functioning of the company, there was a plethora of evidence indicating that the defendants' adverse action was not a response to such disruption, but rather in retaliation for the plaintiffs' speech. Consequently, the court ruled that the defendants' motions to dismiss were denied and that the plaintiffs were entitled to proceed with their lawsuit.
Cases such as this always are painful. Turmoil within a department detracts from the ability to carry out the department's mission. Nonetheless, differences of opinion will arise from time to time. A couple of thoughts about dealing with them follow.
- We cannot prohibit speech just because we don't like it.
- Even when we don't prohibit speech, we can still violate the law if we allow the kind of behavior alleged in this case.
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.
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