A US District Court judge has refused to dismiss a lawsuit brought by an FDNY deputy assistant chief who was denied a promotion for refusing to renounce letters to the editor he wrote decades ago relative to merit based testing. Even more interestingly, Judge Brian M. Cogan suggested that the proper First Amendment analysis for the case is not the traditional Pickering Balancing Test, but rather one that looks at the ability of government to compel the speech of public employees.
DAC Michael F. Gala, Jr. filed suit late last year naming the city and Fire Commissioner Daniel A. Nigro as defendants. Chief Gala currently serves as Deputy Assistant Chief of Operations. Decades ago, he 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 consistent with the city’s policies at the time relative to merit-based hiring.
In May of 2020, Chief Gala was informed about his pending promotion to assistant chief. He was also informed that Commissioner Nigro wanted him to retract and “renounce” the opinions contained in the decades-old letters to the editor, and what’s more, state “I am not the same man I was.” Chief Gala refused and was passed over for promotion. He sued FDNY and Commissioner Nigro late last year for violating his First amendment rights.
The city sought to have the case dismissed. In denying that motion, Judge Cogan explained:
- It is well-settled that public employment cannot be conditioned “on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”
- Speech by a government employee is protected if it is made “on a matter of public concern, and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'”
- Where a public employee alleges retaliation for exercising his First Amendment right to free speech, he must initially establish that: “(1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest, (2) he or she suffered an adverse employment action, and (3) the speech was at least a substantial or motivating factor in the adverse employment action.”
- In their motion, defendants do not dispute that plaintiff has met his initial burden, and I don’t see how they could. [Emphasis added]
- His letters concerned proposed policies to change hiring standards for firefighters and his opinion that such efforts could threaten the health and safety of firefighters and civilians.
- “[D]iscussion regarding current government policies and activities is perhaps the paradigmatic matter of public concern.”
- That being said, I view this case as being more about retaliation for failure to engage in compelled speech than for past speech.
- Plaintiff was promoted multiple times after he authored the original Letters, and it was only after he refused to retract those Letters — that is, that he refused to speak — that he suffered an adverse employment action.
- Defendants argue that it was lawful for the Commissioner to require plaintiff to disavow his views while under consideration for a high-ranking position in the FDNY.
- A “government employer may take an adverse employment action against a public employee for speech on matters of public concern if: (1) the employer’s prediction of the disruption that such speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took the adverse employment action not in retaliation for the employee’s speech, but because of the potential for disruption.”
- The second factor “forms the crux of what is commonly referred to as the Pickering balancing test.”
- There are at least two problems with defendants’ position.
- First, it is not clear that the Pickering balancing test even applies to this case.
- It is bad enough when a public employer chills legitimate discourse on matters of public concern by punishing those who express their views.
- It is even more egregious when a public employer requires an affirmative retraction of such speech from a decade earlier as a condition precedent to promotion.
- Moreover, Pickering does not quite fit the allegations in this case.
- Plaintiff was promoted multiple times in the ten-plus years since the Letters were published.
- If plaintiff’s past speech and present leadership position have not caused an intolerable disruption to the FDNY’s operations so far, there is no reason to presume that his refusal to retract that speech all these years later would cause one now.
- And to the extent that the Commissioner’s goal for the retraction was to improve public relations, the balancing test evaluates internal disruptions; it does not generally permit the public to curtail unpopular ideas with the government’s help.
- In any event, it may be difficult for defendants to establish that the Commissioner reasonably believed the retraction would eliminate any potential disruption; an email paying lip service to diverse hiring efforts may be a shallow and ineffective means of improving public relations on a complex issue with which the FDNY (and many other institutions) have grappled for years.
Judge Cogan went on to rule that Commissioner Nigro should be dismissed from the suit based on qualified immunity, concluding that even should Chief Gala prevail against the city, the rights in question were not clearly established at the time.
Here is a copy of the ruling.
For the legal eagles, this was a ruling on the city’s motion to dismiss, not a motion for summary judgment. The MSJ is likely to be the next battle in the case. A MSJ is an important part of a case like this, because if a plaintiff can survive the MSJ, settlement discussions usually follow. Given that the legal arguments in the MSJ will be very similar to those made in the motion to dismiss, perhaps some early settlement talks might even occur before the MSJ. On the other hand, if the city chooses to fight this all the way, we may finally see a fire service First Amendment case that has the potential to reach the US Supreme Court.
UPDATE: June 18, 2021 – Case settled with the city agreeing to promote Chief Gala and pay him $100,000, and Chief Gala providing a written statement in support of diversity. Update.