Anzaldua v. Northeast Ambulance and Fire Protection District et al
MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [ECF No. 33 ] is GRANTED. Plaintiff's First Amended Complaint [ECF No. 53 ] is DISMISSED with prejudice, in its entirety. Signed by District Judge E. Richard Webber on 03/17/2014. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHEAST AMBULANCE and
FIRE PROTECTION DISTRICT, et al.
Case No. 4:13CV01257 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion for Summary Judgment [ECF
On July 2, 2013, Plaintiff Stevon Anzaldua (“Plaintiff”) filed a Complaint against
Northeast Ambulance and Fire Protection District (“Fire District”); Fire District Board of
Directors Derek Mays, ClarenceYoung, and Bridget Quinlisk-Dailey, in their official capacities
(collectively referred to as “Board”); Board Directors Robert Lee and Derek Mays, in their
individual capacities; Fire District Fire Chief Quinten Randolph, individually and in his official
capacity; Fire District Battalion Chief Kenneth Farwell, individually and in his official capacity;
and individual Kate Welge [ECF No. 1]. In his Complaint, Plaintiff alleged his employment
with Fire District was terminated on September 26, 2012, as a result of a conspiracy among the
defendants. In Count I, Plaintiff brought a claim pursuant to 42 U.S.C. § 1983, alleging the
termination violated his First Amendment right to free speech, against Defendants Lee, Mays,
Quinlisk-Dailey, Randolph, and Farwell (“Fire District Defendants”). Under Count II, Plaintiff
sued Fire District, Fire District Defendants, and Defendant Welge for conspiracy to violate his
constitutional rights, cognizable under 42 U.S.C. § 1983. In Counts III and IV, Plaintiff also
alleged Farwell and Welge violated federal and state computer privacy laws.
Fire District Defendants filed a Motion to Dismiss on August 26, 2013. On October 21,
2013, this Court granted, in part, Fire District Defendants’ Motion to Dismiss [ECF No. 15]. In
its Order, the Court dismissed with prejudice Counts II, III, and IV of Plaintiff’s Complaint, for
failure to state a claim. The Order also dismissed with prejudice Plaintiff’s claims brought
against individual defendants in their official capacities, and Plaintiff’s cause of action for
municipal liability against Fire District, contained in Count I of his Complaint. Because no
claims remained against Fire District, the Order dismissed the district from the action.
Additionally, the Order dismissed, as abandoned, any due process claims asserted by Plaintiff in
his Complaint, and dismissed with prejudice all claims against Defendants Clarence Young,
Bridget Quinlisk-Dailey and Quinten Randolph. The Court denied, in part, Fire Defendants’
Motion to Dismiss, finding Count I of Plaintiff’s Complaint sufficiently alleged colorable claims
against Lee, Mays, and Farwell, in their individual capacities, to survive a dismissal motion.
Plaintiff filed “Plaintiff’s Motion to Reconsider Memorandum and Order Dated October
21, 2013 (Doc.15), or Alternatively, Motion for Leave to Amend Complaint” on October 28,
2013 [ECF No. 18]. In his Motion asking the Court to reconsider its dismissal with prejudice of
Fire District and Randolph as parties, and of Counts II, III, and IV in their entirety, Plaintiff,
noted he was thus prevented from amending his Complaint to state claims for relief, and
requested leave to file an amended complaint. Plaintiff argued justice required that he be granted
permission to amend his Complaint to address the deficiencies identified in the Court’s Order,
because the Court did not find any amendment would be futile, only that there were insufficient
factual allegations to support plausible claims for relief.
On November 27, 2013, the Court issued a Memorandum and Order, holding Plaintiff’s
Motion to Reconsider in abeyance, pending Plaintiff’s submission of a proposed amended
complaint [ECF No. 28]. Subsequently, Plaintiff timely filed a motion, seeking leave to file his
proposed Amended Complaint [ECF No. 29, 29-1]. Defendants Farwell, Lee, Fire District, and
Randolph filed a Memorandum in Opposition to Plaintiff’s Motion; and Plaintiff filed a Reply
[ECF Nos. 38, 44]. On February 5, 2014, this Court issued an Order granting, in part, Plaintiff’s
Motion for Leave to File First Amended Complaint [ECF No. 49]. Plaintiff was granted leave to
file an amended Complaint asserting Count I (42 U.S.C. Section 1983 Violation of Anzaldua’s
Constitutional Rights Cognizable Under 42 U.S.C. § 1983) and Count II (Conspiracy to Violate
Anzaldua’s Constitutional Rights Cognizable Under 42 U.S.C. § 1983), as pleaded in the
proposed First Amended Complaint. However, Plaintiff was denied leave to file a First
Amended Complaint asserting Count III (Anzaldua’s Cause of Action Under 18 U.S.C. § 2707
Against Defendants Farwell and Welge) and Count IV (Anzaldua’s Cause of Action Under
Section 537.525 of the Missouri Revised Statutes Against Defendants Farwell and Welge), as
amendment would be futile.
Plaintiff’s First Amended Complaint is brought against Fire District, and against
defendants Lee, Mays, Randolph and Farwell, in their individual capacities [ECF Nos. 53, 53-1,
53-2, 53-3, 53-4]. The Complaint asserts two claims: Count I – 42 U.S.C. Section 1983
Violation of Anzaldua’s First Amendment Right to Free Speech (against Fire District, Lee, Mays,
Randolph, and Farwell); and Count II – Conspiracy to Violate Anzaldua’s Constitutional Rights
Cognizable under 42 U.S.C. § 1983 (against Lee, Mays, Randolph, and Farwell).
On December 16, Defendants moved for an extension of time to file a motion for
summary judgment based on qualified immunity, and for leave to file in excess of page limitation
[ECF No. 30]. The Court granted Defendants’ motion, ordering, among other things, that any
motion for summary judgment based on qualified immunity be filed no later than December 18,
2013 [ECF No. 32]. Defendants timely filed their Motion for Summary Judgment, based on
qualified immunity [ECF Nos. 33, 34, 35]. Plaintiff filed a motion to defer ruling on Defendants’
Motion for Summary Judgment, and, as well, a motion to strike, on the basis of excessive length,
Defendants’ Memorandum in Support of Their Motion for Summary Judgment [ECF Nos. 36,
37]. In his Motion to Defer, Plaintiff asserted that, because he had not yet had the opportunity to
engage in any written discovery and would need to conduct depositions after he obtained the
documents, he needed a discovery period of at least four or five months, and twenty-one days
after the close of such discovery, to respond to Defendants’ dispositive motion. The Court
denied Plaintiff’s Motion to Defer on February 5, 2014, and ordered Plaintiff to file his Response
to Defendants’ summary judgment motion within twenty-one (21) days [ECF No. 50].
Subsequently, the Court granted leave for Randolph to join in the pending Motion for Summary
Judgment [ECF No. 52]. On February 26, 2014, Plaintiff filed his Response to Defendants’
summary judgment motion [ECF Nos. 57, 59]. Thereafter, Defendants filed their Reply in
Support of their Motion for Summary Judgment Based on Qualified Immunity [ECF No. 61], and
“Defendants’ Reply in Support of Their Statement of Uncontroverted Material Facts and
Response to Plaintiff’s Statement of Additional Material Facts” [ECF No. 62].
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Federal Rule of Civil Procedure 56(c) provides that “[a] party asserting that a
fact cannot be, or is genuinely disputed must support the assertion by: (A) citing to particular
parts of materials in the record, . . . or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “All matters set forth in the statement of the movant shall be deemed admitted for
purposes of summary judgment unless specifically controverted by the opposing party.” E.D.
Mo. L.R. 7-4.01(E).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Summary judgment will not lie if a genuine dispute about a material
fact is shown; “that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. In ruling on a motion for summary judgment, the Court may not make
credibility determinations, weigh the evidence, or draw inferences from the facts. Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).
To satisfy his initial responsibility, the summary judgment movant must inform the court
of the basis for his motion and must identify those portions of the record that he believes
demonstrate the absence of a genuine issue of material fact. Id. at 1042. Once the moving party
has discharged the requisite evidentiary burden, the nonmovant must respond by submitting
evidentiary materials that set out “specific facts showing that there is a genuine issue for trial.”
Id. (citations omitted). If the nonmovant fails to produce such evidence, summary judgment in
favor of the moving party is proper. Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
STATEMENT OF UNDISPUTED OR UNCONTROVERTED MATERIAL FACTS
The following statement of undisputed or uncontroverted material facts is derived from
the Statement of Uncontroverted Material Facts in Support of Defendants’ Motion for Summary
Judgment, Plaintiff’s Statement of Controverted Material Facts Making Summary Judgment
Improper, Defendants’ Reply in Support of their Statement of Uncontroverted Material Facts and
Response to Plaintiff’s Statement of Additional Material Facts, the parties’ pleadings and
responses thereto, and uncontroverted exhibits of record.
At all times relevant to this lawsuit, Mays and Lee were Board Members of Fire District.
Both individuals are sued by Plaintiff in their individual capacities. Farwell serves as Battalion
Chief and Chief Medical Officer of Fire District, and he is sued by Plaintiff in his individual
capacity. Randolph, also sued in his individual capacity, serves as Fire Chief for the district.
Fire District hired Plaintiff as a part-time paramedic in January of 2008. During his
employment, Plaintiff had access to all of the district’s policies and procedures. Fire District
offered Plaintiff a position as a full-time paramedic and firefighter on April 13, 2011. Pursuant
to standard practice when beginning a new position, Plaintiff began a one-year probationary
period on that date.
In April 2012, an investigation was conducted when a hole was discovered in one of Fire
District’s ambulances after Plaintiff and his then-partner, Adam Weinstein, turned the vehicle in
at the end of their shift. On April 5, 2012, Farwell issued written reprimands to Plaintiff and
Weinstein, for neglect of equipment and neglect of property. Plaintiff signed his reprimand, but
stated he did not agree with the disciplinary action. In conjunction with the issuance of the
written reprimand, Randolph sent Plaintiff a letter notifying him that his probationary period
would be extended an additional six months, due to “professional misconduct and general
behavior,” and noting that “any further reprimands, verbal or written, or any conduct worthy of
disciplinary action will subject [Plaintiff] to immediate termination” [ECF No. 34-8].
On July 21, 2012, Lieutenant and Medical Officer R. W. Lee wrote a memorandum to
Farwell, sending copies to Battalion Chief Boling, Plaintiff, and one of Plaintiff’s coworkers
[ECF No. 34-9]. The memorandum concerned a missing ambulance report, and reported Lee’s
determination that the crew responsible for the missing ambulance report was comprised of
Plaintiff and his co-worker, Sasha Zubrisky.
At all times relevant to this action, Dr. David Tan was an assistant professor of
emergency medicine at Washington University, and served as the Medical Director of Fire
District. Fire District had a contract for medical oversight with Washington University, and Dr.
Tan provided this service, but Dr. Tan was not employed by, or directly within the chain of
command, for Fire District.
On July 31, 2012, Farwell received the following email from Plaintiff’s email account:
Dear Dr. Tann (sic)
This is Stevon Anzaldua. I wish this was on better terms that I was contacting
you. I do realize you are the medical director and are not directly exposed to the
day to day operations of this district as it is not in your job description. I almost
feel like I am going to the wrong person and my intention is not to put you in the
middle of anything. I don’t know where else to turn to. I am making you aware
that there are some major issues with the EMS side of operations. In starting, not
everyone in this department is operating under the same rules. Certain (sic)
[ECF Nos. 34 at 4, 34-3, 34-4, 34-10]. Farwell believed the July 31 email, which came from
Plaintiff’s email account, was sent by Plaintiff. Chief Randolph directed Farwell, as Fire
District’s Chief Medical Officer and Battalion Chief in charge of EMS, to investigate Plaintiff’s
concerns [ECF Nos. 34-3, 34-4]. Farwell sent an email to Plaintiff on July 31, 2012, stating he
concerned and obligated to inquire and investigate your concerns, “not everyone
in this department is operating under the same rules.” Please provide for me
in writing the Where, When, How, What, and Who of your concerns by the end
of the day of Aug 2, 2012[.]
[ECF Nos. 34-3, 34-10]. Plaintiff failed to respond [ECF Nos. 34-3, 34-11, 57-1]. Farwell
questioned Plaintiff about the Tan email in a telephone conversation on July 31, 2012 [ECF Nos.
34-3, 57]. Plaintiff told Farwell he did not send the email to Dr. Tan [ECF Nos. 34-11, 57-1].
On August 6, 2012, Farwell sent a memo to Randolph and Deputy Fire Chief Bilal L.B.
Olushola, with copies provided to Fire District’s Board of Directors [ECF Nos. 34-3, 34-11].
The memo discussed Plaintiff’s email to Dr. Tan, and reported Farwell’s directive to Plaintiff to
provide an explanation of his concerns. In this memo, Farwell stated, “As of August 6, 2012, I
have not received any phones (sic) call, text message, or a[n] email from Firefighter/Paramedic
Anzaldua, explaining his concerns he requested of Dr. David Tan” [ECF Nos. 34-3, 34-11].
At the Board’s direction, Olushola sent Plaintiff, on August 7, 2012, a Notice of Hearing
for August 13, 2012. The Notice stated:
On July 24, 2012, you forwarded an email to Dr. David K. Tan suggesting that
“major issues” existed within the District’s EMS division. You went on to
suggest that the District was engaging in “rule” bending for certain employees.
Dr. Tan is not within your department chain of command and he does not handle
interdepartmental grievances. Your public statements therefore appear to be
divisive, inflammatory, and without merit. When provided an opportunity by
Battalion Chief Kenneth Farwell to elaborate on your statements, you failed to do
so within the time allotted. Such failure strengthened the belief that your
statements were intentionally perverse and improperly motivated.
Such behavior, if deemed true, is a direct violation of the District’s code of conduct.
[ECF Nos. 34-1, 34-12]. The August 7, 2012 Notice of Hearing further stated: “You will be
allowed union representation if you so desire.”
On August 15, 2012, Farwell emailed Randolph and the Board Members to report that
Plaintiff’s mother was taking pictures of Farwell’s personal business, Da Elite Bar & Grill, and
pictures of Fire District vehicles at his business. [ECF Nos. 34-3, 34-13]. On August 17, 2012,
Farwell emailed the Board Members and Randolph to report that Plaintiff’s mother was
“stalking” him and taking pictures of his personal property. These incidents, and the prior
discipline Farwell had issued to Plaintiff, caused a strained relationship between Plaintiff and
Farwell, his superior officer.
On August 20, 2012, during a closed session, the Board decided to suspend Plaintiff for
ten days for his refusal to respond to Farwell’s directive to provide information regarding his
complaints about Fire District. At the Board’s direction, Olushola sent Plaintiff a Notice of
Suspension and “Last Chance Letter,” informing Plaintiff he would be suspended without pay for
ten shift days, due to the Board’s determination he had “failed to respond to a directive issued by
a chief officer[,]” a failure the Board deemed “unacceptable” [ECF Nos. 34-1, 34-12, 34-15, 3417]. The letter stated any future misconduct, without regard to its severity, would result in
Plaintiff’s immediate termination.
On August 23, 2013, Farwell received an email, sent from Plaintiff’s email account, with
a forwarded message Plaintiff had sent to an individual named Mary Elizabeth Schmidt, and to
Elizabeth Holland, who was a reporter for the St. Louis Post Dispatch [ECF Nos. 34-3, 34-16,
57]. The email read as follows:
You have covered the Northeast Ambulance and Fire protection district before on
a variety of issues. I am currently employed there as a Full-Time
Firefighter/Paramedic. I am coming to you hoping to remain anonymous. There
are several issues that are new. Some pertain to pension issues. Others pertain to
public safety. I have tried to reach out to the directors only to be disciplined for
10 days for an email sent to the medical director with critical concerns regarding
the service we provide citizens as it pertains to medical emergencies. Any time a
stand is taken on this issue it leads to something punitive in the form of
suspension or termination. I have been employed there for almost 4 years now we
have new problems.
We have been shutting down Pumpers (Fire Apparatus) due to staffing mishaps
(Resulting from CMO). We have SCBA’s (Self-contained Breathing Apparatus)
that are not compliant with NFPA (National Fire Protection Association) 1971.
This is a guideline to safe practices, policies and equipment. We are told on the
floor (The workers actually responding to the calls) that we do not have the
money. We have 6-7 WORKING SCBA’s right now in the department. This is
after 2 new Chevy Suburban’s were purchased for command staff. The vehicles
totaled somewhere around 100000.00 after the addition of things like Light-Bars
and Sirens were added. One of these Command vehicles is Administrative
(Chiefs Vehicle). The other vehicle is used on shift and DOES respond to calls
and assumes command. This is a “Working” vehicle. There was nothing wrong
with the Chief’s vehicle prior to this. In fact, [t]hat old Chief’s [vehicle] is now
the “Triage” vehicle equipped with ALS (Advanced Life Support) equipment
which is staffed by the Chief Medical Officer running at 4707 (Call sign). This
vehicle is “suppose” to respond to calls during the CMO’s duty hours. If you call
North Central dispatch (314-428-1133) you can actually get the numbers of 4707
(Command Vehicle) responses. This point is simple. The safety of the men is
secondary to command vehicles. We are already understaffed and short on
working SCBA’s which are not NFPA Sec. 1971 compliant which means the
district assumes legal liability if any Death/Disability occurs as a result of a
structure fire/Fire. This is a safety issue to ALL of my Peers on the floor. These
Vehicles somehow managed to be a priority over our safety.
I would like to address the issue of the Chief Medical Officer and his vehicle. The
vehicle leaves the district (Normandy) everyday with him to go home (O’Fallon
30 miles away). This vehicle does NOT respond to calls when he is gone. The
numbers will show that. This Vehicle has actually been parked outside of his bar.
I have multiple photo’s time-stamped and dated of the vehicle parked behind his
bar (Da Elite Bar/Grill). This District vehicle was being used for personal
business conducted at a bar with Tax-Payer gas. IT has since been parked in the
back of the firehouse. The CMO (Chief Medical Officer) deals with the EMS
(Emergency Medical Services) or Ambulance side of operations. He has been
sending out text discussing his bar specials via district telephone. As of August
22nd, the DEA has pulled our controlled substances because the CMO Failed to
renew the license for these substances. Now we have a PUBLIC safety issue.
This affects the people we serve as well as the Paramedics[’] ability [to] stabilize
medical emergencies such as seizures. No pain meds for Chest pain or fractures
prior to immobilization of the injury.
So you may ask why I come to you with this. I was recently suspended for 10
days as a result of an email I was going to send to the Medical Director (This is a
Doctor) discussing supply issues. The CMO was made aware of this email and
put me in front of the board charged with conduct unbecoming. He also charged
me with breaking the chain of command. I am currently serving my suspension.
They (CMO and a Bat. Chief) have extended my probation and written me up and
tried to fire me 3 times. They can do this because I am still currently on probation
and not entitled to union legal counsel or representation even though I am a
member. I have been a Paramedic going on 13 years. I have been in the field for
15 years total. They have circumvented my shift supervisor and gone directly to
disciplinary action. My Shift supervisors have saved my job. I love my job and
Co-workers. I figure if I get terminated and these problems get fixed to provide a
better safer service to the people and the firefighter/paramedics . . . then it was
worth it. I would prefer for this to stay confidential. There is more to this if you
have any additional questions please reply if you see this as something you could
[ECF No. 34-16]. Farwell did not know who sent the email, but on that same day, he forwarded
the email to Board Member Lee.
On August 30, 2012, Randolph, Farwell, and others attended a meeting in Jefferson City,
Missouri regarding the District’s lapsed narcotics license [ECF No. 34-3]. On August 31, 2012,
Holland wrote an article in the St. Louis Post Dispatch entitled “Northeast fire district is grilled
over mishandling state drug paperwork” [ECF No. 53-2].
“Minimum manning” (i.e., manpower coverage), implemented by Fire District due to
financial restraints, was discussed at a December 6, 2011 Board meeting, and the minutes from
that meeting indicated “there were no problems arising from minimum manning” [ECF Nos. 34,
34-1, 57-5]. Fire District could not afford to run two pumpers and two ambulances in 2012. Fire
District had many more ambulance calls than fire calls, which contributed to a decision to use
only one pumper.
In August 2012, money had already been allocated for new SCBAs, and Fire District
personnel were informed of this circumstance. Fire District paramedics and firefighters
conducted testing in 2012 to determine the best type of new SCBAs for the district to purchase
[ECF No. 34-17]. Plaintiff and his co-workers actively tested different SCBAs to determine
which worked best and functioned at the highest safety standards [ECF No. 34-17]. Prior to
August 2012, Battalion Chief Newberry told Fire District firefighters and paramedics that once
the paramedics and firefighters decided which of the breathing devices was to their liking for
safety and efficacy, Fire District would purchase the ones they recommended. Plaintiff attended
meetings where the different options for SCBA were discussed.
In 2012, Fire District purchased two new command vehicles because the prior vehicles
were not sport utility vehicles. The cost of the command vehicles purchase in 2012, including
necessary modifications, was $63,941. During a March 27, 2012 public Board meeting, the
purchase of command vehicles for approximately $64,000 was discussed. During a January 24,
2012 public Board meeting, the Board noted two lifepack monitors were purchased, at the
request of the paramedics, for Fire District personnel to use.
Under Fire District’s Standard Operating Policy pertaining to vehicle use, “district staff
vehicles may be used for reasonable personal travel within a sixty-mile radius of the Northeast
Ambulance & Fire Protection District.” This policy also provides “[t]he district staff vehicle
may be used to transport the chief officer to and from their place of work[,] provided such place
of work is within a sixty-mile radius from the Northeast Ambulance & Fire Protection District.”
As an employee, Plaintiff had access to this policy. Farwell was required to have his District
vehicle accessible while he was not at the firehouse, in case he needed to report to the scene of a
At the time of his discharge, Plaintiff was a probationary employee of Fire District.
Under the Collective Bargaining Agreement (“CBA”) between the district and the firefighters’
local union, Fire District management reserved the right to terminate probationary employees
with or without cause. Under the CBA, Fire District management also reserved the right to
extend a probationary period. Plaintiff’s probationary period was extended after he was
disciplined for neglect of equipment and property.
Although the CBA does not provide probationary employees with a right to Union
representation during disciplinary meetings or otherwise, the August 7, 2012 Notice of Hearing
for August 13, 2012 (regarding the Tan email), informed Plaintiff, “You will be allowed union
representation if you so desire.” EMS Lieutenant Jennifer Barbarotto, a Shop Steward for the
firefighters’ local union, attended the disciplinary hearing on August 21, 2012, to assist Plaintiff.
The job of a district paramedic or firefighter requires close working relationships.
Firefighters are often placed in dangerous and stressful environments and must be able to work
together and trust each other to be safe and effective [ECF Nos. 34-17, 34-18, 34-19, 57]. Lives
may be at stake, when trust and a close working relationship does not exist among and between
firefighters, paramedics, and their supervisors. Fire District firefighters are frequently called to
serious fires, and must rely on each other in life-threatening situations.
Plaintiff’s email to Holland was passed around the fire house [ECF Nos. 34-17, 34-18,
34-19]. Several employees were shocked by the content of the email, and by Plaintiff’s action in
sending to a member of the press, a message containing what they considered to be numerous
false statements [ECF Nos. 34-17, 34-18, 34-19]. The Holland email irritated many employees
in the district, and fostered division between Plaintiff and his co-workers, and between Fire
District firefighters and Farwell [ECF Nos. 34-17, 34-18, 34-19].
In 2012, Fire District firefighters responding to fires took directions and commands over
the radio from Farwell and other Battalion Chiefs [ECF Nos. 34-17, 34-18, 34-19, 76]. The
firefighters placed their lives in the hands of Farwell and other Battalion Chiefs, who were giving
them direction from the outside. Their ability to trust Farwell with their lives, and to trust he had
in mind, at all times, their best interest, rather than his own personal interests, was of extreme
and irreplaceable importance. If the firefighters did not trust Farwell, they might take different
actions, have more trepidation about their actions, or doubt the calls he was making, resulting in
situations that could directly lead to the loss of lives.
Mays and Lee believed Plaintiff’s email to Holland caused disruption within Plaintiff’s
department. They believed Plaintiff forwarded his email to Holland, Schmidt, and other
individuals, and had the potential to cause further disruption among Fire Districts’ firefighters
and paramedics, and employees of other districts, as more people learned about Plaintiff’s
statements in the email. Mays and Lee further believed the Holland email had the potential to
cause further disruption if Plaintiff remained employed with the District. Mays and Lee knew
numerous aspects of the Holland email were false, and believed Plaintiff knew his statements
On September 13, 2013, Randolph sent Plaintiff a notice of a disciplinary hearing to be
held on September 24, 2012, that stated, in part:
On August 23, 2012, it is believed that you circulated a personal email publicly
defaming and denigrating the District. More significant is the fact that it
contained false and misleading statements. Such statements appeared to be
intentionally divisive, inflammatory, and without just cause. It is believed that
such statements were also purposefully perverse and improperly motivated.
Such behavior, if deemed true, is a direct violation of the District’s code of
conduct. The Board is hereby providing you an opportunity to be heard on this
matter before deciding whether further disciplinary action is warranted.
The Board voted to terminate Plaintiff’s employment on September 24, 2012. Mays and Lee
voted in favor of termination. Board Member Quinlisk-Dailey voted against termination. At the
Board’s directive, Randolph sent a letter to Plaintiff on September 26, 2012, notifying Plaintiff of
his discharge. The letter stated:
The Board accepted your admission and there from (sic) concluded that you
circulated an email publicly defaming and denigrating the District without just
cause. It was also determined that your statements were seditiously false and
misleading as well as ill-intended, divisive, and retaliatory for prior discipline
issued by the Board in good faith. Even though you admitted conveying such
statements to, at least, one public entity; the number of other people and entities
you actually conveyed them to is unknown. The Board found your explanation for
publicly expressing and circulating false and misleading information to others as
In deciding to vote in favor of terminating Plaintiff’s employment, Mays and Lee considered that
Plaintiff’s email was motivated by a strained relationship with his superior officer, Farwell, and
by a desire to retaliate against the Board Members for suspending him. They also considered the
need for efficiency and loyalty within the workforce, the divisive nature of Plaintiff’s email to
Holland, and the false and misleading statements in the Holland email that Plaintiff knew, or
should have known, to be false when he made them.
In their Motion, Defendants claim there exists no genuine issue of material fact on the
record before this Court, and Defendants are entitled to qualified immunity and judgment as a
matter of law on Plaintiff’s claims under Federal Civil Procedure Rule 56(a) [ECF Nos. 33, 34].
In determining whether a government official is entitled to a grant of summary judgment on the
basis of qualified immunity, courts conduct a two-prong inquiry, first considering: 1) whether the
facts alleged, taken in the light most favorable to the plaintiff, show a violation of a constitutional
right; and 2) whether the constitutional right violated was clearly established at the time of the
defendant’s alleged misconduct. Sisney v. Reisch, 674 F.3d 839, 844 (8th Cir. 2012); Bearden v.
Lemon, 475 F.3d 926, 928-29 (8th Cir. 2007).
If a public employee has been disciplined for engaging in protected speech, the next
judicial inquiry becomes whether that discipline violated the First Amendment. This
determination requires a careful balance “between the interests of the [employee], as a citizen,
commenting on matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.” Pickering v.
Bd. of Educ. of Township High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968).
Defendants argue, here, the Court need only address the second prong of the qualified
immunity analysis, because Plaintiff cannot identify a clearly established right that Defendants
should have known they might violate in terminating his employment. Defendants contend the
proper inquiry is whether Defendants should have known, in light of pre-existing law, that it was
illegal to take adverse action against Plaintiff for making false and defamatory statements about
Fire District to the press. Defendants further claim they are entitled to qualified immunity
because Plaintiff cannot show he had a clearly established constitutional right to make false and
defamatory statements about Fire District. Defendants argue that Plaintiff’s emails to Tan and
Holland cannot be deemed speech by a private citizen regarding matters of public concern,
because Plaintiff was speaking out as a disgruntled employee airing a private grievance. They
contend, of the thirteen complaints made in his Holland email, only his statement about the
expired narcotics license could arguably be an issue of public concern.
Plaintiff alleges he was discharged by Fire District in retaliation for his exercise of the
right to free speech. The uncontroverted facts show Fire District terminated Plaintiff for publicly
expressing and circulating the Holland email [ECF Nos. 34, 34-26]. The Eighth Circuit takes “a
broad view of what constitutes clearly established law for the purposes of a qualified immunity
inquiry.” Bearden, 475 F.3d at 929. Even assuming all other allegations contained in the
Holland email are false, Defendants concede the email’s assertion regarding Fire District’s
expired narcotics license could be viewed as constitutionally protected speech. Viewed most
favorably to Plaintiff, the Complaint’s allegations show Plaintiff’s speech was a basis for the Fire
District’s termination decision. The right not to be terminated for exercising such a First
Amendment right was clearly established at the time of Plaintiff’s termination. Id.
Defendants additionally argue, should the Court disagree that consideration of the first
prong is unnecessary, they are still entitled to summary judgment, because they did not illegally
infringe upon Plaintiff’s First Amendment right to free speech. They contend the draft email to
Dr. Tan is not protected by the First Amendment. Defendants first assert the email could not be
“speech” because Plaintiff alleges he never sent it. Next, they argue Plaintiff cannot prove the
draft email was a motivating factor in the Board’s decision to suspend him for ten days.
Defendants assert Defendant was suspended because he failed to respond to a direct order from
his chief officer, requesting information. Thus, Defendants are asking this Court to determine
they are entitled to qualified immunity as to the Tan email because Plaintiff was suspended for
not complying with Farwell’s directive to explain in writing Plaintiff’s concerns concerning
“‘rule’ bending for certain employees” [ECF Nos. 34-1, 34-3, 34-112, 34-12]. Essentially,
Defendants are contending protected speech was not a substantial, or motivating factor in the
termination decision. This causation question is a determination for the jury. Shands v. City of
Kennett, 993 F.2d 1337, 1343 (8th Cir. 1993). Furthermore, the Court finds a genuine issue of
material fact exists as to whether Plaintiff’s protected speech was the motivating reason behind
Finally, Defendants argue that, should the Court reach consideration of the second prong,
and apply the Pickering test, the factors weigh heavily in favor of Defendants’ right to promote
efficiency in their public service, and against Plaintiff’s right to make false and defamatory
Governmental employers such as Fire District have a legitimate purpose in promoting
efficiency and integrity in the performance of public service, and in maintaining proper discipline
in the conduct of that service. Shands, 993 F.2d at 1344. To achieve this purpose, the
governmental employer must have broad discretion and control over its internal affairs and
personnel management, including the prerogative to summarily terminate employees whose
conduct hinders efficient operation. Id. “As a public safety organization, a fire department . . .
has a more significant interest than the typical government employer in regulating the speech
activities of its employees in order ‘to order to promote efficiency, foster loyalty and obedience
to superior officers, maintain morale, and instill public confidence’ in its ability[.]” Id. at 1344
In applying the Pickering balancing test to a governmental employee’s speech, courts
weigh six interrelated factors: 1) the need for harmony in the work place; 2) whether the
government’s responsibilities require a close working relationship between the plaintiff and coworkers and the speech has caused or could cause deterioration of the relationship; 3) the time,
manner, and place of the speech; 4) the context in which the dispute manifested; 5) the degree of
public interest in the speech; and 6) whether the speech impeded the employee’s ability to
perform his duties. Shands, 993 F.2d at 1344.
Applying the six factors to this case, the Court finds the balance weighs in favor of
defendants. Firefighters and paramedics must follow their superior’s orders and work together
harmoniously to ensure not only their safety, but also that of the public. Thus, fire districts’
decisions to terminate employees are accorded judicial deference. Shands, 993 F.2d at 1345.
This deference is extended to both the district’s determination that the protected speech had
caused or would cause dissension and disruption, and to the district’s response to the actual or
perceived disruption. Id.
Giving Fire District’s decision due deference, the Court concludes Mays and Lee
reasonably believed Plaintiff’s speech was an attempt to undermine Farwell’s authority and had
led, or would lead, to disruption in the department. When Plaintiff’s email to Holland was
passed around the fire house, several employees were disturbed by its content, which they
believed asserted numerous false statements. Many of Plaintiff’s co-workers were angered by his
decision to send such an email, and its content fostered division between Plaintiff and his coworkers, and between District firefighters and Farwell. Before writing his emails to Tan and
Holland, Plaintiff never met directly with Farwell, Randolph, or the Board Members to discuss
the concerns he professed to hold. Instead, he attempted to circumvent the chain of command,
and he contacted a member of the media. Upon receiving the emails written by Plaintiff to
Holland, the defendants became convinced the nature of Plaintiff’s message was divisive and
defaming, and was motivated by both his strained relationship with Farwell and a desire to
retaliate against Board Members for suspending him.
The Court further determines Fire District’s responsibilities require a close working
relationship between the firefighters, paramedics, and their superior officers, such that more
latitude in regulating the speech of an employee is warranted. “When lives may be at stake in a
fire, an esprit de corps is essential to the success of the joint endeavor.” Shands, 993 F.2d at
1344-45 (quoting Janusaitis v. Middlebury Volunteer Fire Dept.), 607 F.2d 17, 26 (2nd Cir.
1979)). Fire District firefighters responding to fires take directions and commands from Farwell
and other Battalion Chiefs, thus placing their lives in the hands of these individuals. Personal
loyalty to Battalion Chiefs is critical to Fire District’s management structure. Distrust and eroded
loyalty between co-workers and between firefighters and their Battalion Officers could cause
emergency responders to hesitate in their actions, and to doubt their superior officers’ calls,
resulting in situations that could lead to the loss of lives.
Apparently, Plaintiff sent the email to Holland on his own time, outside the work place.
However, his communication to Holland was not a purely private conversation; rather, it was
intended by Plaintiff to reach the general public. The Court concludes the time, manner, and
place of Plaintiff’s speech is not entitled to a heightened level of protection. Plaintiff had to
expect that his representations to Holland would raise questions, generate concern, promote
division, and potentially disrupt the fire department.
As discussed earlier, the statement addressing Fire District’s expired narcotics license
would constitute protected speech. The majority of the statements contained in Plaintiff’s email
appear to arise from a personal dispute with Farwell and Fire District, and thus are not entitled to
heightened protection. Considering the context of the dispute in which Plaintiff’s speech arose,
Fire District’s decision to discharge Plaintiff warrants considerable deference.
The degree of public interest in the majority of statements made in the Holland email is
insubstantial. However, the district’s discovery that its state controlled-substances registration
had expired was a matter of public concern, and it was the subject of discussion at a meeting of
state health officials and in a newspaper article reporting on Fire District violations of state and
federal controlled substance laws. Accordingly, this factor weighs in favor of Plaintiff.
Finally, the Court finds Plaintiffs’ statements impeded the firefighters’ ability to perform
their duties as fireman. Plaintiff’s actions exacerbated an already strained relationship between
him and his superior officer, Farwell. Plaintiff ignored Farwell’s directive to provide a written
statement of the concerns Plaintiff professed in his email to Tan. The Holland email, passed
around the fire house, negatively impacted the morale of Plaintiff’s coworkers, and caused
divisiveness and disruption within Plaintiff’s department.
The Court finds the Pickering balance favors the defendants. Accordingly, it concludes
Board’s termination of Plaintiff, under the facts presented by this case, did not violate the First
Amendment. The Court will grant Defendants’ Motion for Summary Judgment.
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [ECF No.
33] is GRANTED. Plaintiff’s First Amended Complaint [ECF No. 53] is DISMISSED with
prejudice, in its entirety.
Dated this 17th
day of March, 2014.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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