Colorado Firefighter Loses Wrongful Termination Suit

A Colorado firefighter who was fired two days after organizing a meeting of firefighters to discuss complaints about management, has lost his wrongful termination lawsuit. Chad Sells was fired by the Upper Pine River Fire Protection District on July 18, 2017.

On July 16, 2017 he “organized a meeting of all of the Firefighters at the Department (excluding Captains and Chiefs except for the Deputy Chief of Operations) for the purpose of addressing workplace safety concerns, public safety concerns, and the general mismanagement, disorganization, and dysfunction” in the department.

When he went to discuss the results with Fire Chief Bruce Evans he was abruptly terminated as the meeting began. Sells sued the district and Chief Evans in federal court alleging a violation of his First Amendment rights, wrongful termination and retaliation for reporting workplace safety violations. He also alleged his termination was retaliation for his having reported a female firefighter for sexually harassing him in June, 2017. The harassment allegation was explained in the complaint:

  • In early June 2017 Mr. Sells was changing clothes before his shift when Firefighter Fuchs, a female Firefighter who was coming off of her shift, entered his changing stall unannounced.
  • When she entered, Mr. Sells was naked. He was shocked, surprised, and uncomfortable.
  • Mr. Sells told her to leave immediately and that he did not want her to be in his stall.
  • Ms. Fuchs refused to leave.
  • Mr. Sells stated that it was not funny and continued to demand that she leave his stall.
  • This was the third time that Ms. Fuchs had entered Mr. Sells’s changing stall without his permission or consent while he was changing.
  • Clark Brown and Will Shoesmith, co-workers on Mr. Sells’s shift, were also in the room changing, and they heard the incident.
  • Mr. Brown and Mr. Shoesmith physically removed Ms. Fuchs from Mr. Sells’s stall.
  • Once out of the stall, Ms. Fuchs made another attempt to push her way past Mr. Brown and Mr. Shoesmith by crawling on all fours to get under the curtain and into the stall.
  • Mr. Brown and Mr. Shoesmith successfully prevented Ms. Fuchs from getting back into Mr. Sells’s stall.

In granting the district’s motion for summary judgment, Judge Christine M. Arguello acknowledged that Sells abandoned three of his claims including the sexual harassment claim, and focused solely on the First Amendment aspect of him “organizing and participating in the July 16 meeting.” Quoting from Judge Arguello’s  ruling:

  • [A] public employee claiming retaliation for First Amendment activity bears the initial burden of proving that his conduct was protected by the First Amendment.
  • The plaintiff must show that (1) his First Amendment activity involved a matter of public concern; (2) his interest in the protected activity outweighed the employer’s interest in regulating it; and (3) the protected activity was a substantial motivating factor in the employer’s decision to take adverse action against him.
  • Defendants argue that Plaintiff’s retaliation claims fail at the first element because Plaintiff has failed to demonstrate that the July 16 meeting involved matters of public concern.
  • The Court agrees.
  • Whether speech involves a “matter of public concern” is a question of law for the court to decide.
  • Not every statement or criticism by a public employee amounts to a “matter of public concern.”
  • “To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark-and certainly every criticism directed at a public official-would plant the seed of a constitutional case.”
  • “[T]he First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.”
  • Therefore, to determine whether speech pertains to a matter of public concern, “courts focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.”
  • Plaintiff argues that the meeting agenda “contains at least five items that are directly, explicitly, and sometimes expressly related to matters of public concern,” including “issues with Captains, breaks in the chain of command, lack of training, lack of standard operating procedures (SOP), and the single firefighter staffing of station 4.”
  • This is not sufficient to demonstrate that Plaintiff’s conduct involved matters [of] public concern.
  • Plaintiff offer’s no evidence to support his position that these agenda items led to discussion of matters of public concern.
  • Thus, Plaintiff has failed to show that his conduct involved a matter of public concern, and his retaliation claims must fail as a matter of law.

Here is a copy of the decision:

Here is a copy of the complaint:

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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