Fireman wins First Amendment retaliation appeal

The plaintiff was a firefighter who was constructively terminated from his position. He says he was let go because he spoke on matters of public concern. The fire department said he was let go for misconduct. The district court dismissed the case, but the Court of Appeals brings it back.

The case is Crown v. Danby Fire District, a summary order issued on January 24. This case raises several issues that Section 1983 litigators are familiar with. For those of you who don't handle these cases, this ruling highlights what you've been missing.

First, as for plaintiff's alleged misconduct: it involved allegedly forging the Fire Chief's signature to enroll in a training course. This issues was first raised in a disciplinary proceeding before the NYS Industrial Board of Appeals, which said the signature forging allegation was pretextual. Crown, of course, wants that finding to apply to his federal case. We call that collateral estoppel, in which a factual determination reached in one proceeding will apply to a later proceeding. Collateral estoppel is tricky, however. The Court of Appeals (Lohier, Raggi and Chin) says it cannot apply here -- and Crown cannot rely on the IBA's favorable finding -- because the fire department was not in privity with the Department of Labor, which handled the proceeding in the IBA. In other words, the fire department had no control over that proceeding and were not represented by anyone during it. The department therefore cannot be bound by the IBA's finding.

Second, we have a qualified immunity issue. This immunity allows defendants to avoid litigation if they did not violate clearly established law in acting against the plaintiff. The Second Circuit rules in plaintiff's favor on this issue. The law has long been clearly established that firefighters have the First Amendment right to criticize a fire department's deficiencies in training, morale and discipline. Firefighters also have a clearly established right to criticize limitations on access to public records. That's what plaintiff did here, so the department had to leave him alone over this.

While the department says it terminated Crown because of performance deficiencies, including allegedly forging a signature and missing a required meeting, the Court of Appeals says these are disputed factual issues that cannot be resolved on summary judgment. Crown says he was actually authorized to sign the Chief's name, and Crown tried to reschedule the meeting, raising "at least a question as to whether defendants in good faith believed his absence to indicate insubordination."