Federal Court Rejects Cape Fire Fighter’s Civil Rights Suit

A Federal Judge in Massachusetts recently dismissed claims under the First Amendment, Massachusetts whistleblower law, and tort law brought by a member of the Cotuit Permanent Fire Fighters, Local 3462. The case, if upheld on appeal, is a cautious reminder that the First Amendment does not provide public employees with absolute protection against adverse employment actions based upon their exercise of free speech. Plus, it cautions that not every negative action that occurs after lawful activity by an employee can support a legal claim.

Pierce v. Cotuit Fire District concerns a fire captain who worked in the same bargaining unit as his wife, also a fire fighter. The Captain made two unsuccessful, public efforts to effect changes in his workplace – he openly supported an opponent to an incumbent commissioner of the District fire board; and he applied to be Chief (as did his wife). During his bid to become Chief, the Captain reached out to the State Ethics Commission about the legality of working in the same department as his wife. The Ethics Commission had advised him to avoid any oversight of his wife, to disclose this perceived conflict of interest to his Board, and to request an exemption.

The Chief who was ultimately selected initiated a policy on familial relations. While the Captain generally did not work the same shift as his wife, he was involved in investigating her for misconduct and in advocating her for a new assignment. The Captain supported a write-in candidate to the Fire District Board of Commissioners against an incumbent perceived to be friendly with the Chief. The Chief later ordered the Captain to return his District-issued cell phone and give up his office space. In the Captain's view, the Chief also yelled at him inappropriately and denied him a promised promotion to Deputy Chief. The Captain complained to the District Board about the above actions, which he characterized as whistleblowing.

The State Ethics Commission, at the request of the Board, intervened and concluded that it had reasonable cause to believe that the Captain violated ethics law by failing to recuse himself from matters involving his wife. The Captain failed to take these steps. The Chief suspended the Captain, allegedly for these unethical actions, and the District ultimately terminated him.

The Captain claimed that the Chief's and District's actions against him violated his First Amendment rights because they were taken in retaliation for his political support for a failed District Board candidate, his complaint to the Board about the Chief, his support of his wife’s gender discrimination claim against the Department, and his filing of an unfair labor practice charge.

But, as mentioned above, the First Amendment does not always protect public employees from adverse employment consequences based on their exercise of free speech. An essential element of a First Amendment claim is that the employee must show that he or she spoke on a “matter of public concern” as opposed to a purely personal matter. Here, the Federal Court found that the Captain’s complaint to the Board and his unfair labor practice arose from personal problems with a supervisor, rather than say complaints about internal corruption or widespread political bias. The Court noted that a public employer can violate the law by disciplining an employee for the actions of the employee’s spouse. But the mere fact that disciplinary actions against the Captain occurred after his wife filed a discrimination claim, without any other supporting evidence, were too thin to support such a claim.

The Court next found that even though the Captain’s advocacy for a failed Board candidate qualified for First Amendment protection, he failed to show that any Board member involved in his termination was motivated by his political activity. The Chief likewise as found not to be motivated by the Captain’s complaints or politics, given that he circulated a family relations memo prior to the disputes. The Court also noted that the Chief had an innocuous explanation for every slight perceived by the Captain. Finally, the Court tossed out the Captain’s whistleblower and tortious interference claims for lack of evidence.

The Cotuit Permanent Fire Fighters, Local 3462 filed grievances about the Captain’s suspension and termination of the Captain. The Fire District and the Local ultimately settled these disputes by reinstating the Captain to the rank of Fire Fighter. The former Captain, who objected to the settlement but returned to work, filed a Duty of Fair Representation suit against Local 3462. The Department of Labor Relations dismissed this charge.