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1st Amendment retaliation claim of Christian firefighter who objected to coworkers’ sexual behavior revived in part

By Kathleen Kapusta, J.D.

The firefighter alleged that his coworkers watched pornography in communal spaces and engaged in extra-marital affairs at the fire station; in response to his criticisms, they responded with disrespectful comments about his religious practices and sexual orientation.

Reversing in part the dismissal on the pleadings of the First Amendment retaliation claims of a firefighter who criticized his coworkers for conduct he considered immoral and harmful to their work, and who was ultimately fired for overreporting his hours and double dipping, the Sixth Circuit found that while close, his amended complaint contained enough plausible allegations to move to the discovery stage of the case. The appeals court, however, affirmed the grant of summary judgment against the firefighter’s due process and Title VII claims. Judge Kethledge and Judge Stranch both dissented in part to the court’s opinion (Hudson v. City of Highland Park, Michigan, November 22, 2019, Sutton, J.).

The firefighter wore a cross, said grace before meals, and held various moral opinions. He claimed his fellow firefighters attacked his Christian beliefs through remarks about God and Jesus, which he perceived as blasphemous, including that Jesus had sex with the harlot in the Bible. They also purportedly made fun of his cross and asked him whether he had fallen asleep while he prayed before eating. The other firefighters, he contended, viewed sexually suggestive material and had sex at the fire station. and the fire chief failed to reprimand them for engaging in this behavior.

Timesheet discrepancies. At some point during his employment, an issue arose regarding two discrepancies in his timesheets. He claimed fire engine operator hours even though he did not hold the requisite rank and he recorded time working for the fire department while recording some of the same hours working for a school. He was ultimately terminated as a result of these discrepancies.

Lower court proceedings. Asserting numerous claims, including First Amendment retaliation and Title VII disparate treatment and hostile work environment, the employee sued his municipal employer, the fire chief, and the HR director. The district court dismissed his First Amendment claim on the pleadings and granted summary judgment against the rest of his claims.

First Amendment retaliation. On appeal, the Sixth Circuit first noted that it has been repeatedly held that an employer many not retaliate against employees based on their protected speech. Here, the court observed, the employee complained about the poor administration of the fire department, which was surely protected speech, and the fire department fired him, which was surely an adverse employment action. Thus the issue was whether he alleged sufficient plausible facts that his speech caused the fire chief and HR director to fire him.

While the appeals court agreed with the district court that as to the HR director, he had not, it found that as to the fire chief, “his claim stands on firmer ground.” For five years, the employee alleged, he openly criticized his coworkers’ behavior, believing that it interfered with their ability to fight fires. Further, he claimed, the chief knew about his comments and tolerated other firefighters’ dereliction of duty. In addition, he filed a complaint with OSHA alleging that the firefighters’ cavorting led to deficiencies in the station’s equipment. Ultimately, he alleged, because the chief wanted to silence him, he fired him for falsifying his time card even though he knew another firefighter had done the same thing.

Jurisdictional challenge. While the chief first argued that the court lacked jurisdiction over the claim because the employee did not preserve the issue for appeal, the court disagreed, finding he raised the issue when he challenged the district court’s decision in two motions. As to the chief’s assertion that the employee did not sufficiently tie the discharge to his speech, and that more than five years had passed between when the employee started speaking out and his termination, he did not point to any case, observed the court, “in which the mere passage of time dooms a retaliation claim.” More to the point, said the court, the employee alleged that the chief expressed frustration with his complaints and knew that he had reported the firefighters to a government agency for their misbehavior. Considering his allegations as a whole, the court found they met the notice pleading requirements of plausible allegations that the chief fired the employee because of his speech.

Finally, the court refused to affirm the dismissal of this claim on a ground not raised by the chief or the district court—that the employee had conceded it should be dismissed.

Due process. Turning to the employee’s due process claim, the court noted that he had a property interest in his employment arising from the parties’ collective bargain agreement. Although the employee, who had proceeded through the CBA’s grievance procedure, argued that the post-termination meeting was a “sham” because he was given very little notice and was unable to attend, and the local union opted not go forward with the grievance, the court pointed out that “due process does not fix every breach of contract or violation of state labor law.”

Explaining that before he could use this federal cause of action in this way, he had to show that state law remedies could not help him, the court found he failed to do so. Thus, this claim failed as a matter of law.

Title VII. As to the employee’s Title VII claims, the court first dispensed with one justification raised by the city for its treatment of the employee, “that he started it.” While the city argued that his coworkers simply responded to his open criticism of their behavior by taunting him with “remarks that may have had religious overtones,” employees are “free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat,” said the court. Further, they are “no less free to root out legitimate criticisms about the workplace in their faith than in any other aspects of their worldview.” “Let firemen be firemen,” the court asserted, “is not a cognizable defense to Title VII claims based on gender discrimination, race discrimination, or faith-based discrimination.”

Nonetheless, the employee’s disparate treatment claim failed at the pretext stage. While he argued that an atheist firefighter falsified his timesheets and was not fired, he did not offer any evidence to support this assertion.

Hostile work environment. Nor did he sufficiently establish that his coworkers’ remarks unreasonably interfered with his work performance. Not only did he admit he never received fewer assignments or worse assignments because of his religious beliefs, and never stopped going on fire runs because of the way his colleagues treated him, he never complained to the chief about the harassment, “even though he was plenty willing to tell the leaders of the station about other conduct of the firefighters—namely their intimate affairs,” said the court, pointing out that “while his colleagues at times did not extend to him the civility and respect that should be the norm in the workplace, that doesn’t mean their conduct violated Title VII.”

Partial concurrences and dissents. Judge Kethledge, concurred in all of the court’s opinion except as to the reversal of the First Amendment claim against the chief, arguing that the employee conceded that claim at oral argument. In a separate partial concurrence and dissent, Judge Stranch concurred in the court’s opinion except as to the determination that the employee failed to make a prima facie case of discrimination based on hostile work environment. Fact disputes existed, Judge Stranch argued, as to whether the harassment the employee suffered created a work environment that unreasonably interfered with his work performance.