Michigan Captain Loses Retaliation Suit

A Michigan fire captain who resigned in 2017, has lost his lawsuit against his former fire department for wrongful discharge and violating his First Amendment rights. Kevin Corsini was a captain with the City of Hazel Park Fire Department.

Captain Corsino claims he was forced to retire after he objected to treatment by a city recommended doctor, and thereafter forced to undergo a fitness for duty evaluation. Quoting from the decision, Corsini claimed:

  • Fire Chief Richard Story . . . informed employees, including Plaintiff, that the City was encouraging employees to ‘save the City money’ by going to Defendants Lichten and Edward Lichten, MD, PC . . . for medical treatment in lieu of using other medical providers.”
  • Despite his objections, plaintiff alleges that he “felt pressured” to see Dr. Lichten, who prescribed plaintiff certain injections and medications.
  • Plaintiff states that he informed Dr. Lichten that he was “not feeling well from the injections,” and questioned Dr. Lichten’s “advice, treatment, methods, and strategies,” as well as whether his practices were “ethical or legal.”
  • Plaintiff further alleges that these comments led Dr. Lichten to terminate their physician-patient relationship, and that plaintiff’s complaints were relayed to his superiors within the fire department.
  • Plaintiff states that [o]n August 10, 2017, Chief Story issued a memorandum of “incidents and concerns,” about Plaintiff, detailing alleged conduct and performance deficiencies on the part of Plaintiff, with the apparent purpose of informing a “Dr. Clark,” of Alpha Psychological Services, of information about Plaintiff as a basis to do a “fitness for duty” evaluation.
  • Plaintiff alleges that this same memorandum placed plaintiff on administrative leave of absence.
  • Following the fitness for duty evaluation, plaintiff states that he was given two options: “1) to go through the program of therapy that Dr. Clark had advised, and that Plaintiff’s work would now be limited, or 2) Plaintiff could buy out his remaining seniority time to achieve his maximum pension and leave the City’s employ.”
  • Plaintiff alleges that he therefore “felt forced to, and did, submit papers to buy out his remaining seniority (3 full years) so that he could retire from the City with full pension.”
  • He states that this buyout cost him $89,000, “which was taken from Plaintiff’s deferred compensation account” and was done under coercion.

Corsini sued the city and Dr. Lichten. The claims against the city alleged he was wrongfully forced to retire in violation of public policy and in retaliation for protected speech, namely: complaining about Dr. Lichten. He sued Dr. Lichten for tortious interference with a business relationship, because the doctor’s complaint prompted the city to send him for a fitness for duty evaluation which in turn led to his resignation.

The city’s story was a little bit different. As explained by the court:

  • [T]he trial wellness program with Dr. Lichten was offered on a voluntary basis to employees as “an ancillary product in addition to the [Blue Cross Blue Shield] health care plan.”
  • Dr. Lichten severed his physician-patient relationship with plaintiff following “an angry outburst in his medical offices about billing,” which was described by office staff as “a temper tantrum in the office’s lobby.”
  • Following this incident, the City states that plaintiff “participated in additional questionable behavior,” including “threaten[ing] the life and safety of a subordinate firefighter while on a fire run, [speaking] poorly about the Department, and engag[ing] in behavior that was unbecoming of an officer.”
  • Collectively, this behavior “ultimately led Chief Story to question [plaintiff’s] leadership and decision-making abilities as a Captain, resulting in a fitness for duty evaluation.”
  • The main incident which led to Chief Story’s decision to have Plaintiff undergo . . . a fitness for duty evaluation occurred during a July 23, 2017 fire run.
  • Specifically, Plaintiff ordered one of his subordinates, Firefighter Michael Khoury, to gain access to the attic via a 16 in. x 16 in. “scuttle-hole” during the course of an active fire run.
  • When Firefighter Khoury informed Plaintiff that he could not fit, Plaintiff insulted him and tried to shove him into the attic space.
  • Plaintiff’s order threatened the life and safety of Firefighter Khoury.
  • At the fire scene, Firefighter Khoury, immediately reported this incident to Chief Story.
  • Further, the City states that when Chief Story attempted to investigate this incident, he “learned that Plaintiff’s subordinates did not want to put their concerns in writing due to fear of retaliation from Plaintiff.”
  • Other incidents referenced by defendant include (1) an incident at a local bar that resulted in the police being called and plaintiff being banned from the establishment; (2) reports that plaintiff was “speaking poorly of the Department and encourag[ing] newer Department members to find employment elsewhere;” and (3) a photograph posted to social media in violation of department policy.
  • Defendant contends that Dr. Clark’s fitness for duty evaluation revealed that plaintiff  “had a history of anger and verbal aggression, impaired insight and judgment, verbal loss of control, pervasive anxiety, anxious mistrust of others, a need to maintain rigid control, [and] seeks to vindicate past humiliation by demeaning others,” all of which affected his ability to perform professionally
  • According to defendant, Dr. Clark determined that plaintiff “could return to work without restriction only if he engaged in counseling or psychotherapy.”
  • Defendant states that on August 31, 2017, plaintiff was provided the option to either (1) participate in the recommended counseling and relinquish all command responsibilities until the counseling was complete or (2) retire.
  • At a subsequent meeting held on September 11, 2017, plaintiff’s superiors and union representatives discussed alternative courses of action, such as cutting plaintiff’s salary, demoting plaintiff, and entering a “last chance agreement” to ensure appropriate behavior in the future
  • Defendant argues that at all relevant times plaintiff was represented by his union president, plaintiff was made aware of his options, and he “voluntarily elected to retire, effective October 30, 2017.”

In ruling in favor of the city on the wrongful discharge count, the court concluded the state’s governmental immunity law precluded liability because the claim was in essence a tort allegation. Quoting from the decision: “Michigan courts have consistently held that retaliatory discharge constitutes an intentional tort.”

Moving on to the First Amendment claim, the court stated:  

  • To qualify as constitutionally protected speech, the speech at issue must be “fairly characterized as constituting speech on a matter of public concern.”
  • In the present case, plaintiff’s verbal altercation with Dr. Lichten does not qualify as “a matter of public concern.”
  • Regardless of whether plaintiff’s frustrations with Dr. Lichten pertained to the medical treatment he received or his billing obligations, both issues advance only plaintiff’s own private interests.
  • Because the speech at issue “cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for [the Court] to scrutinize the reasons for [plaintiff’s] discharge.”
  • Defendant is therefore entitled to summary judgment on this claim as well.

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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