Court Enjoins Punitive Schedule Change as Retaliation Against Firefighters

A US District Court judge has issued an preliminary injunction ordering the city of East Chicago, Indiana to return its firefighters to a 24-48 schedule. Judge Philip P. Simon concluded that Mayor Anthony Copeland forced the firefighters to an 8 hours-on-24 hours-off schedule in retaliation for supporting an opposing candidate and thereafter lobbying the common council for improved wages, in violation of their First Amendment rights.

The facts are complicated and lengthy, as is the reasoning for the decision. However, firefighters reading the decision will appreciate the level of understanding Judge Simon appears to have for the deleterious impact that such a punitive schedule change has on firefighters. Quoting from the decision:

• Prior to running for mayor, Copeland worked as a firefighter for 26 years for the City of East Chicago.
• During that time, Copeland himself worked the 24/48 schedule.
• In 2010, Copeland decided to run for mayor. He campaigned to reduce corruption, obtain financial accountability, transparency, and increase the quality of life in East Chicago.
• Copeland won the mayor’s race, and after being elected he froze salaries and benefits for various city employees in an effort to get East Chicago’s fiscal house in order.
• His efforts included freezing the firefighters’ salaries and benefits such as longevity pay, grade pay, abolishing terminal leave, and eliminating the payout of leave banks for any firefighter hired after 2010.
• Mayor Copeland was re-elected a couple of times, and in 2019 he faced yet another election.
• During the spring election season that year, the firefighters’ Political Action Committee actively endorsed candidates opposing incumbent mayor Anthony Copeland.
• Around this time the firefighters’ union president, David Mata, spoke with then-Fire Chief Anthony Serna, and Chief Serna warned Mata not to go against Mayor Copeland: “If you go against the mayor and he wins, I don’t know what he’s going to do” and to not “go against the hand that feeds you.”  
• Mayor Copeland defeated his opponent; but six of the Common Council members that the firefighters supported won their election.
• Several firefighters protested at Mayor Copeland’s inauguration, and Copeland found that to be “disrespectful.”
• After the election, Chief Serna instituted several new policies that transferred union personnel and prohibited firefighters from parking or washing their personal cars at the station.
• In August 2019, Union President Mata began working with the Common Council, East Chicago’s legislative body, to draft a salary ordinance that would return some of the benefits that had been frozen by Mayor Copeland nearly a decade earlier.
• Sometime after the first reading of the salary ordinance, Mayor Copeland told Chief Serna to develop a new schedule for the fire department.
• Chief Serna did not consult any experts when he came up with his proposals.
• Chief Serna claimed that both proposed schedules would comport with the East Chicago’s cost-savings measures.
• He described the savings and a spreadsheet he created with projected cost savings but failed to provide an accounting of any actual cost savings.
• According to Chief Serna, he had no idea the impact of a rotating 8-hour schedule would have on his firefighters; he neither researched it nor consulted any experts on the issue.
• Chief Serna made no effort to determine how the new schedule might affect sleep schedules and whether firefighters would be well rested when they showed up to work.
• This 8-hour rotating work schedule did not affect the supervisors-Assistant Chiefs, District Chiefs, and Acting District Chief positions.
• It was only enforced on “all line personnel.”
• Chief Serna told Union President Mata the plans to move forward with the 8/24 schedule and that it was necessary because the effect the 2019 salary ordinance could have on the budget.
• Even though the salary ordinance was a dead issue by then, Chief Serna told Mata that he needed to be proactive in case a new salary ordinance came down the pike.
• Chief Serna also left little doubt as to what motivated the change in schedule: it was in response to the firefighters’ lobbying efforts.
• Chief Serna candidly told Mata that the “8-hour schedule . . . (was) a reaction to the original ordinance” lobbied for by the Union.
• He also told Mata that the move was being made “in anticipation of what the firefighters’ union and council is gonna do.”
• In explaining why they were implementing the new schedule, Chief Serna told Mata, “You showed your hand. So we know what the hand is. So in anticipation of what’s coming down the road, that’s what these moves are right now.”
• Chief Serna made it clear to Mata the connection between the schedule change and the failed ordinance: “I know, everybody knows it’s the firemen who wrote that (meaning the ordinance.) What I’m saying is that original ordinance is what fucked this all up.”

The decision goes on to explain the legal basis for the firefighters’ First Amendment claims, together with the three key components of any request for preliminary injunctive relief: (1) the likelihood the firefighters will prevail on the merits of the case, (2) the showing of irreparable harm if the injunction is not issued, and (3) the balancing of interests. As Judge Simon explains:

• The first issue is whether the firefighters are likely to succeed on the merits of their First Amendment retaliation claim.
• The government may not take an adverse employment action against an employee in retaliation for exercising his or her First Amendment right to free speech.
• In sum, it is beyond question that the salary ordinance and the firefighters’ work schedule are matters of public concern.
• And when the firefighters in this case lobbied the Common Council on those issues, they were therefore engaging in protected First Amendment activity.
• The next issue is whether the firefighters’ lobbying of the Common Council was the motivating factor for the adverse action taken against them-the imposition of the 8/24 schedule.
• It surely was. I need to look no further than the words of Chief Serna and Mayor Copeland to prove the point.
• Chief Serna told Mata it was payback time: “You showed your hand (meaning lobbying for the ordinance). So we know what the hand is. So in anticipation of what’s coming down the road, that’s what these moves are right now.”
• Mayor Copeland likewise conceded the causation point. He told the public in a Facebook post shortly after the 8/24 schedule was implemented that it was necessitated by the union’s refusal to sign the MOU-an MOU which specifically would have prevented the firefighters from lobbying the Common Council
• The final issue in determining the likelihood of the firefighters succeeding on the merits is whether the defendants’ conduct will likely deter free speech.
• In my view, the imposition of the 8/24 schedule in and of itself is likely to do just that.
• In sum, considering all the evidence presented during the preliminary injunction and post-hearing briefs, I find that the firefighters have made a strong showing of likelihood of success on the merits.
• They engaged in protected First Amendment activity, that activity was a motivating factor in East Chicago’s imposition of the 8/24 work schedule, and they suffered a deprivation likely to deter free speech.
• Irreparable harm is easily met in the First Amendment context. That’s because “[t]he loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate.”
• As noted above, the reason for this brightline rule was made clear in this case through the testimony of the current union secretary, Ms. Gilarski, who specifically (and credibly) testified just how afraid she is to speak her mind for fear that another onerous policy will come thundering down on her head.
• What’s more, there are other irreparable harms in this case entirely outside of the chilling of First Amendment rights.
• The 8/24 schedule itself is causing irreparable harm. As discussed above in my findings of fact, many firefighters testified credibly at the hearing on the deleterious effect the schedule has had on them.
• It seems rather obvious if one has a perpetually rotating schedule, it will wreak havoc on one’s sleep, can cause weight gain, trouble concentrating, and irritability, never mind the obtaining of reliable childcare or care for an elderly loved one. In sum, irreparable harm is readily shown here.
• On the record before me, the balance of harms in this case is a complete mismatch. For starters, on this record, the firefighters have a high likelihood of success on the merits.
• But even if the merits question was a coin flip, there is no doubt that the harm to the firefighters greatly outweighs any alleged financial harm to East Chicago.
• On the other hand, if I don’t grant the injunction, the firefighters will have their First Amendment rights impeded upon and they will be forced to continue the 8/24 work schedule which has potentially long-term consequences.
• This schedule is not used anywhere else in the country. And with good reason. As discussed above, it is causing severe problems for the East Chicago firefighters’ sleep schedules, personal lives, and ability to find routine childcare.
• On the other hand, I heard no testimony other than conclusory statements from Chief Serna of the “cost savings” from the 8/24 schedule.
• Neither Mayor Copeland nor Chief Serna provided any documentation that supported the financial benefit to this schedule.
• Neither of them considered obtaining a financial analysis of the fiscal benefit or whether any actual money had been saved in East Chicago’s budget.
• When compared with the undocumented possibility that
• East Chicago might be saving money, the weighing in this case is an anvil versus a feather.
• Therefore, the balance of harms overwhelmingly favors the firefighters.

Here is a copy of the decision: