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Federal appeals panel refuses to dismiss free-speech retaliation suit

By David Hudson
The Freedom Forum Online
08.03.00

A federal appeals court has refused to dismiss a First Amendment lawsuit filed by the president of an Oklahoma firefighters' union, who alleged he was demoted after disagreeing with the city manager at a city commission meeting.

Anthony Stewart was demoted by the city manager of Kingfisher, Okla., Reuben Pulis, in October 1997 after he disputed Pulis' comments regarding whether additional emergency medical-technician training would be provided for the firefighters.

Stewart and Pulis publicly disagreed over whether the firefighters wanted additional EMT training and whether the EMT training would lead to greater pay for firefighters. Stewart expressed concern that firefighters would lose their jobs if they didn't pass EMT training.

One day after the dispute, Pulis replaced Stewart as shift leader at the fire department.

Stewart sued in federal court in 1999, alleging that he had been retaliated against for speaking out against Pulis.

Pulis filed a motion to dismiss the case on qualified-immunity grounds. In civil rights cases, government officials who are sued are entitled to qualified immunity if they can show that they did not violate a clearly established constitutional right.

After the district court refused to dismiss the case, Pulis appealed to the 10th U.S. Circuit Court of Appeals.

On July 27, a three-judge panel of the 10th Circuit unanimously agreed with the lower court and refused to dismiss the case, sending it back down to the lower court.

The panel determined in Stewart v. Pulis that the question boiled down to whether Stewart's speech constituted a matter of public, rather than private, concern. The panel decided that Stewart's speech was a matter of public importance.

Plaintiffs in First Amendment retaliation cases must clear two hurdles. They must show that their speech was on a matter of public concern and that their free-speech interests outweigh the government's interest in workplace efficiency.

"The parties do not dispute what Stewart said, but disagree about the proper legal characterization of the speech," the panel wrote.

"Although Stewart's comments were brief, he alleged improper and unlawful conduct by the City Manager affecting the provision of emergency fire and ambulance services to the city," the panel wrote. "The additional evidence provided by Pulis shows that Stewart's comments were directed at an issue of ongoing debate in the community. Stewart was not concerned just about his job, or even just about union members' jobs, as defendants maintain."

Patrick Hunt, one of Stewart's attorneys, said his client's "speech was clearly on a matter of public concern and the demotion was disgraceful."

The attorney who represented Pulis was out of the office and unavailable for comment.


Related

Ex-firefighter whose news release criticized boss loses retaliation suit

Employer's interest in efficient workplace outweighs employee's free-speech interests, say judges. 05.12.00

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