Suit by FDNY Ops Chief Alleges Promotion Denial Violates First Amendment

An FDNY deputy assistant chief who claims he was passed over for promotion to assistant chief for refusing to renounce letters to the editor he wrote decades ago relative to merit based testing, has filed suit alleging the city violated his First Amendment rights. DAC Michael F. Gala, Jr. filed suit in US District Court for the Eastern District of New York late last year naming the city and Fire Commissioner Daniel A. Nigro as defendants. He currently serves as Deputy Assistant Chief of Operations.

Chief Gala wrote a number of letters to the editor of the The Chief-Leader, a civil service themed newspaper, opposing efforts to relax FDNY’s stringent hiring standards. The letters were published in the 1990s and early 2000s and were consistent with the city’s policies at the time. When informed about his promotion to assistant chief, he was also informed that Commissioner Nigro wanted him to retract and “renounce” the opinions contained in the letters to the editor, and what’s more, state “I am not the same man I was.”

Quoting from the complaint:

  • In May 2020, Plaintiff was set to receive a promotion to Assistant Chief of Department.
  • He was informed of this fact directly by Chief of Department John Sudnik, among others.
  • However, upon hearing confirmation of this long-overdue promotion, Plaintiff was then directed to issue a retraction, by email, of statements he had made in letters to the editor of a newspaper over a decade ago.
  • In those letters, he opposed efforts to relax the FDNY’s hiring standards, which was motivated by a desire to protect the health and safety of FDNY members and the public.
  • Because he continued to believe his prior position was correct, and because he believed in his constitutional right to say as much, Plaintiff declined to issue the retraction.
  • When the promotion list was circulated a few days later, Plaintiff’s name had been removed.
  • Subsequently, Chief Sudnik advised him that his refusal to issue the retraction was the basis on which the promotion decision had been reversed by Fire Commissioner Daniel A. Nigro.
  • The denial of Plaintiff’s promotion presents a textbook First Amendment violation.
  • Even if one disagrees with Plaintiff’s statements from years ago regarding the FDNY’s hiring standards—a subject of intense public debate and litigation—there can be no disagreement about their status as protected speech.
  • It is a foundational principle of our democracy that a government employer may not take adverse action (including denial of a promotion) against an “employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.”
  • Although Defendants have a legitimate interest in maintaining an effective and cohesive firefighting force, Plaintiff’s refusal to recant decade-old statements opposing controversial efforts to modify the FDNY’s hiring process—efforts which the City and the FDNY themselves opposed at the time—cannot possibly be considered so disruptive to fire department operations today as to justify the denial of his right to speak on matters of such public importance.
  • As the Second Circuit explained in a similar case, Defendants’ “interest in preserving harmony [in the fire department] does not outweigh [Plaintiff’s] exercise of free speech.”
  • On the morning of Monday, May 18, 2020, Plaintiff met with Chief of Department John Sudnik and Chief of Fire Operations Thomas Richardson.
  • At that meeting, Chief Sudnik informed Plaintiff that Plaintiff was going to be promoted to Assistant Chief of Department on May 23, a fact confirmed by another high-ranking member of the department, among others.
  • Chief Sudnik explained, however, that Commissioner Nigro wanted Plaintiff to send an email renouncing the opinions he had expressed in his letters to The Chief-Leader many years ago.
  • More, Chief Sudnik said that the retraction, which Commissioner Nigro wanted by email immediately, should say “I am not the same man I was” when Plaintiff wrote the letters.
  • Although Plaintiff was willing to clarify in writing that he deeply valued diversity and never intended his letters to offend anyone, he declined to retract his prior statements.
  • Plaintiff had three reasons for not issuing a retraction. First, his letters were motivated by a sincere desire to protect the health and safety of firefighters and civilians.
  • Second, caving to pressure to recant his published statements would set a harmful precedent: it would embolden Defendants to trample the free speech rights of other civil servants and would send a message (including to the many firefighters who looked to Plaintiff for leadership) that Defendants could bully anyone into taking whatever position Defendants wanted on matters of public concern.
  • Third, as a man of deep principle, Plaintiff thought it was amoral to capitulate on sincerely held views simply to obtain a promotion.
  • When the list of FDNY promotions was announced a few days after the May 18 meeting, Plaintiff’s name was missing.
  • Plaintiff immediately asked Chief Sudnik for a written explanation regarding why he had not been promoted.
  • Chief Sudnik refused to provide an explanation in writing.
  • Instead, he met with Plaintiff in person and stated that Commissioner Nigro reversed the promotion decision because Plaintiff declined to renounce his published letters.

The suit seeks an injunction ordering his promotion along with an award for back pay, damages for harm to his reputation, costs and attorneys’ fees. Here is a copy of the complaint:

Incidentally, the leading case in this area, Pickering v. Board of Education, 391 U.S. 563 (1968), involved a public employee who wrote a work related letter to the editor.

UPDATED 3/8/21: Alternative viewpoint: https://www.cssny.org/news/entry/new-leadership-key-to-ending-bias-in-the-fdny

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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