SC Captain Terminated for BLM Post Can Allege Race Discrimination But Not 1st Amendment

A magistrate judge has recommended the dismissal of the First Amendment claims of a white Columbia fire captain who threatened on Facebook to run over Black Lives Matter protestors. However, he also recommended that the Captain be allowed to make his case to a jury that his termination constituted race discrimination because he was punished more harshly than his African American colleagues who posted comparable remarks.

The case goes back to the July 10, 2016 BLM protests that shut down interstate highways across the country, including I-126 in Columbia, South Carolina. Columbia Fire Captain Jimmy Morris posted:

Idiots shutting down I-126. Better not be there when I get off work or there is gonna be some run over dumb asses.

Public Service Announcement: If you attempt to shut down an interstate, highway, etc on my way home, you best hope I’m not one of the first vehicles in line in line because you ass WILL get run over! Period! That is all….

The posts sparked anger in the community, prompting Fire Chief Aubrey Jenkins to close Captain Morris’ station temporarily and take addition steps to protect firefighters from possible retaliation. More on that story here.

Captain Morris was terminated. He filed suit in state court alleging wrongful termination, claiming his remarks were protected by the First Amendment and that his termination constituted race discrimination. The city had the case removed to US District Court, and then moved for summary judgment on both of Captain’s Morris’ claims. The motion was assigned to a magistrate judge for determination. Last month Magistrate Judge Kevin F. McDonald addressed both issues, ruling for the city on the First Amendment claim, and Captain Morris on the discrimination claim.

Surprisingly, Magistrate McDonald’s First Amendment analysis did not address the Pickering Balancing test, or the merits of Captain Morris’s claim. Rather it was decided upon narrow procedural grounds, namely: that he was not terminated based upon a policy, practice, or custom of violating the First Amendment. According to the decision, under 42 U.S.C. § 1983: “Municipal liability [for § 1983 actions] attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.”

IMHO, Magistrate McDonald’s decision could more easily have been rationalized as being speech that “causes actual harm or disruption to the mission and functions of the fire department.” Such speech is unprotected by the First amendment. Last month I posted a lengthy explanation about the First Amendment analysis, so I won’t repeat it here. In the end, it reaches the same outcome: Captain Morris’s First Amendment claim fails.

Magistrate McDonald did reach the merits of Captain Morris’ race discrimination claims. Quoting from the decision:

  • Here, the plaintiff has presented evidence that both he and two other white firemen … were terminated from employment by the defendant for social media posts that were similar to posts made by similarly situated black firemen who were not terminated from employment.
  • The plaintiff’s evidence is sufficient to create an issue of fact as to whether the defendant’s reason for terminating the plaintiff was pretext for race discrimination.
  • Accordingly, summary judgment should be denied on the plaintiff’s Title VII race discrimination cause of action.

Assuming the district court adopts the recommendations of the magistrate, it will then be up to a jury to determine whether Captain Morris was the victim of race discrimination. The city’s position is that there is an important difference between Captain Morris’ posts and the posts by the African American firefighters, namely: Captain Morris’s posts threatened harm, while those posted by the African American firefighters did not. Hence the race discrimination aspect of the case will turn on whether the comments posted by the African American firefighters were truly comparable to those posted by Captain Morris.

Here are the comparison posts made by the African American firefighters, identified as Mr. Bostick and Mr. Ramsaroop:

  • Mr. Bostick posted: “Here’s a thought, I wear a blue uniform, I’m black, but because I wear the uniform gangs are going to try and take me out? Hmmmm guess black lives don’t matter now do they? See it’s all bullshit…. But can’t tell idiots that now can you?”
  • Mr. Ramsaroop posted: “Protesting is your right and you are free to do so, but when you protest in the street, that is impeding traffic. In that case, you’re just pretending to be a speed bump”
  • Mr. Ramsaroop’s [also posted]: “So, because of the Black Lives Matter ‘movement’ Burger Kings around South Carolina have refused to service Firefighters. I have heard this from different Firefighters at different Burger Kings. I hope you bitches have insurance”

The question for the jury will be: did the difference between the remarks of Mr. Bostick and Mr. Ramsaroop and those of Captain Morris, warrant a different disciplinary outcome, or was the difference merely a pretext for race discrimination?

Here is a copy of the decision.

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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