Second Circuit Reinstates First Amendment Suit Against FDNY

The Second Circuit Court of Appeals has reinstated a lawsuit filed by an FDNY fire marshal who was removed from an investigation into the cause of a fire on the set of a Bruce Willis movie that killed a firefighter on March 22, 2018.

Scott P. Specht filed suit in 2019 accusing the city, Chief Fire Marshal Thomas Kane, and Assistant CFM John David Lynn of violating his First Amendment rights, retaliation under NY civil service law (whistleblower), and intentional infliction of emotional distress. All three claims were dismissed last December by US District Court Judge Eric N. Vitaliano, prompting Specht to appeal to the Second Circuit.

As explained by the Second Circuit:

• This lawsuit arose from Specht’s work investigating a fire in March 2018 that destroyed a five-story brownstone in Manhattan where a motion picture was being filmed.
• The fire resulted in serious damage to the building and the death of a firefighter.
• Over the course of his investigation, Specht alleges, he studied physical evidence from the fire and interviewed witnesses.
• He tentatively concluded that the cause of the fire was either a boiler that had been the subject of unauthorized repairs, or the activities of the movie production crew.
• Ultimately, he informed his supervisors, Chief Fire Marshal Thomas Kane and Assistant Chief Fire Marshal John David Lynn, that his tentative conclusion was that the fire was the result of work done by the movie crew.
• He concluded that the movie crew had improperly installed high-intensity lighting and had drilled holes in the wall, floors, and ceilings of the basement of the brownstone and that this work had caused the fire.
• Specht alleges that about three weeks into his investigation, Kane and Lynn convened a meeting at FDNY headquarters where they demanded that he prematurely terminate his work and ordered him to file a final report concluding that a flue connected to the boiler caused the fire.
• Specht told them, he alleges, that there was no basis for that conclusion and that his investigation had not been completed.
• Following this meeting, Specht told his immediate supervisor that he could not and would not file such a report as directed by Kane and Lynn.
• The supervisor allegedly told him that if he did not comply, he would be committing “career suicide.”
• Specht speculated that his superiors in the Department pushed the boiler theory because they did not want to embarrass the film production crew because film production was a highly lucrative source of revenue for the City.
• About two weeks later, another meeting was convened at FDNY headquarters where, Specht alleges, he was verbally attacked by Kane, Lynn and other FDNY officers present for failing to file the report as directed and was again instructed to do so.
• He also alleges that, contrary to accepted investigative practices, Kane and Lynn refused to permit experts from the Bureau of Alcohol, Tobacco, Firearms and Explosives to inspect the boiler, although they were separately investigating the fire.
• He alleges that his superiors also refused to permit ATF agents to participate in discussions about the investigation and that they released the boiler to agents of the movie company.
• In addition, Specht alleges that Lynn ordered the removal of the sprinkler system valves from the fire site and concealed them in an FDNY facility and directed that no photographs or other records be made to document their removal.
• Finally, Specht alleges that when he refused the second order to file a report blaming the boiler, Kane and Lynn removed him from the investigation and Specht’s replacement then, at their direction, prepared a report, finding that the boiler system had caused the fire.
• Specht alleges that his supervisors’ direction to file a false report was an attempt to cover up the origins of the fire and constituted official misconduct.
• He further alleges that after his removal from the investigation, he publicly voiced his views both inside and outside the Department that the report contained false conclusions about the origins of the fire.
• On May 1, 2018, he emailed his fellow Fire Marshals alluding to what had happened to him, stating in part: “My advice to the members of the Bureau of Fire Investigation is to stay true to your methodology, your training, and yourself. Do not succumb to the great pressures that will be placed upon you by the supervisory members of this bureau. At the end of the day, it will be YOU answering to your methods under oath. More importantly, it will be YOU answering to the reflection you see in the mirror.”
• Specht alleges that following this email, he continued to complain about the incident, this time outside the Department.
• In June 2018, he met with representatives of the New York City Department of Investigation and reported his complaints about Kane’s and Lynn’s actions.
• The next month, he filed a Notice of Claim with the New York City Comptroller’s Office stating his intention to sue Lynn, Kane, and the City of New York for retaliation.
• The Notice of Claim asserted, among other things, that Kane and Lynn improperly terminated Specht’s investigation of the fire; that Kane and Lynn’s conduct improperly permitted a movie company to circumvent a full investigation of the fire; and that Kane and Lynn had improperly removed him from the investigation as part of their efforts to conceal the movie company’s role in the fire.
• The next day, July 18, New York Daily News picked up the story and published an article reporting the Notice of Claim.
• The article’s headline stated that “[l]egal papers suggest FDNY coverup in probe of fatal Harlem fire on Edward Norton set” and reported Specht’s allegations that his FDNY supervisors retaliated against him for suggesting that the movie company bore responsibility for the fire. Specht also alleges that a short while later, he met with the New York County District Attorney’s Office to report the alleged misconduct.
• In September 2018, Lynn and Kane placed Specht on modified duty status.
• This reassignment, Specht contends, was without justification, substantially reduced his job responsibilities, and denied him overtime opportunities.
• He contends that this demotion pushed him to apply for disability retirement benefits.
• The application was delayed but eventually approved. But the delay and the loss of overtime reduced his retirement benefits.

The district court concluded Specht’s speech was not protected because it was internal workplace grievances, and not a matter of public concern. The Second Circuit disagreed as to certain parts of Specht’s speech.

• We agree with the district court that the point of this email was to share with other fire marshals Specht’s take on the course of the investigation and his reaction to what he considered inappropriate pressure from his supervisors.
• These are internal workplace grievances, not matters of public concern. Neither the substance nor the intended audience of Specht’s email-his colleagues-suggests that Specht sought to inform the public on a matter of political, social, or community interest.
• If the email were ever released to the public, it would convey no information other than the fact that a single employee was upset by an incident that occurred in the workplace.
• We have been clear that statements that fall into this category do not garner First Amendment protection.
• Next, as noted, Specht alleges that in addition to the email, he expressed his views on the handling of the investigation of the fire outside the Department.
• He reported his complaints about the reaction to his investigation to the New York City Department of Investigation, he filed a Notice of Claim with the City describing what had transpired, he met with representatives of the District Attorney’s office, and he communicated with the local press, which reported on the events.
• We conclude that these reports touch on matters of public concern.
• We turn next to Specht’s refusals to file a report that he alleges would have been false.
• It is well settled that the First Amendment protects the right of a citizen to choose both what he says and what he does not say.
• For that reason, the refusal to engage in certain speech may constitute protected activity.
• It is moreover well settled that a public employee-like any other citizen-has a “strong First Amendment interest” in refusing to engage in speech that would cause him to break the law by, for example, filing a false report.
• Here, Specht’s refusals to file a false report-just like Specht’s reports to outside agencies-pertain to the potentially serious governmental misconduct.
• Those actions cannot fairly be seen as ones exclusively intended to protect his reputation or enhance his career development.
• Considering the form, content, and context of Specht’s refusal to file a false report, we conclude that this refusal constitutes activity that touches on a matter of public concern for purposes of the First Amendment.

The Second Circuit upheld the district court’s ruling on the whistleblower and emotional distress claims. The case will now return to the district court on the First Amendment claims. Here is a copy of the decision, which was handed down today:

The five-alarm fire claimed the life of firefighter Michael Davidson, 37.