Polk County Prevails in First Amendment Suit By Medical Director

The 11th Circuit Court of Appeals has rejected the appeal of a doctor who claims she was wrongfully replaced as the Polk County Fire Department’s medical director after she voiced concerns about the handling of an African American candidate with a medical condition.

Dr. Nancy King served as the occupational health director for Polk County for 15 years. Part of her responsibilities included determining whether firefighter applicants were medically qualified in accordance with NFPA 1582.

In 2014, the county sought to hire a firefighter-applicant identified in the decision only as “J”, as part of a diversity initiative. The medical screen identified that J had a lung problem which one of Dr. King’s subordinates believed disqualified him from becoming a firefighter. However, the assistant recommended J follow-up with his own physician without advising him he was disqualified.

J’s personal physician cleared him to start the academy, but apparently did not rely on NFPA 1582 as the benchmark. When Dr. King found out, she sought to examine J, but found herself at odds with county EEO administrator, Kandis Baker-Buford. Dr. King brought her concerns to the County Manager and Deputy County Manager. Eventually J was dismissed from the fire academy but over Dr. King’s objection he was retained as an EMT.

Thereafter, Dr. King was informed the county was dissatisfied with how she “handled the J situation”, and that the county would be soliciting new bids for the services she had been providing. Dr. King reapplied and received the highest score among the bids submitted. The selection committee did not make a decision but orally agreed to extent her contract in the interim. Believing she would not be renewed as medical director, Dr. King decided to move on in March 2016.

Thereafter, Dr. King filed suit in US District Court claiming she had been retaliated against for exercising her First Amendment rights with regard to J. The trial court granted the county summary judgment concluding that Dr. King’s speech was not protected by the First Amendment because she was not speaking as a private citizen. Dr. King appealed.

The 11th Circuit agreed with the district court. In a decision handed down last Friday, the court ruled:

  • The district court properly granted summary judgment because King spoke in her role as an employee when she expressed concerns with county employees about J’s hiring.
  • Her speech was therefore not protected by the First Amendment.
  • King spoke pursuant to her official job duties, the purpose of her speech was work-related, and she never spoke publicly.
  • When viewed together, these factors paint a clear picture of a person speaking as an employee and not as a private citizen.
  • The first step in determining whether a plaintiff has a viable First Amendment retaliation claim is whether the plaintiff’s speech “was made as a citizen.”
  • King spoke pursuant to her job duties. She was not a concerned citizen who happened to become aware of problems with J and decided to do something about it.
  • This job responsibility is precisely how King became involved in this matter. As the district court noted, King only became aware of J’s situation because she was “asked to review the accuracy of [J’s] medical records in her capacity as occupational health director.”
  • If the speech “owes its existence to a public employee’s professional responsibilities,” that indicates the speech is not protected by the First Amendment.

Here is a copy of the decision:  King v. County_ 2019 U.S. App. LEXIS 6387

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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