Court Rejects Union Free-Speech Claim in Port Houston Discipline Case

A US Magistrate judge has recommend that a union free-speech lawsuit filed by six Port Houston firefighters be dismissed. The firefighters were disciplined in 2020 following an external investigation into allegations of harassment.

The facts were explained in the decision as follows:

  • This is a First Amendment retaliation suit brought by six firefighters who work, or previously worked, with the Port of Houston Authority. The six firefighters are Stan Kozlowski, Jason Hall, Michael Stallings, Jason Roberts, Justin Meador, and Kyle Jordan.
  • This lawsuit resulted from a sequence of events that led to the termination of Kozlowski, Hall, Stallings, and Roberts, and the one-shift suspension of Jordan and Meador.
  • Plaintiffs have sued Defendants William Buck, the Fire Chief for Port Houston, and Marcus Woodring, the Chief of Port Security and Emergency Operations Officer for Port Houston, in their individual capacities.
  • Plaintiffs were all firefighters with Port Houston. Kozlowski, Hall, Stallings, and Roberts all served in supervisor roles at Port Houston, managing several employees. Kozlowski and Hall were both Senior Captains, Roberts was a Battalion Chief, and Stallings was a Captain. Jordan and Meador, on the other hand, were both non-managerial firefighters who later became Driver Operators.
  • All six Plaintiffs were members of the International Association of Fire Fighters Local 1316, which is the local firefighters’ union at Port Houston. Kozlowski was the Union President, Hall was the Union Vice President, Stallings was the Union Treasurer, and Jordan was the Union Secretary.
  • Neither Roberts nor Meador ever held a leadership position in the Union.
  • After Jones’s interview, another fire department employee and Union member, Dennis Andrejczak, came forward and told Chief Buck that Kozlowski had recently engaged him in a “weird” conversation.
  • Andrejczak stated that Kozlowski wanted to know if he had any animosity towards Kozlowski’s crew or if he felt mistreated or unwelcomed by his crew.
  • Upon hearing this, Chief Buck told Andrejcak that if he felt that he “needed to say something” about anything he’d observed in his four years at Port Houston or how he’d been treated, then he should write a statement and provide it to Walter in Human Resources.
  • Andrejcak prepared a written statement and emailed it to Walter in Human Resources on April 23.
  • Confronted with Jones’s and Andrejcak’s written statements, which described allegations of serious misconduct involving numerous employees over a lengthy period of time, and considering ongoing staffing issues in its Human Resources department, Port Houston decided to engage an outside investigator to take on their growing investigation.
  • In May 2020, Sandy Lauro with DeDe Church & Associates was hired to conduct the investigation.
  • Investigator Lauro conducted a thorough investigation of both the allegations made about Jones and the allegations made by Jones.
  • Investigator Lauro provided summary reports of the findings to Port Houston.
  • She provided one report of her findings regarding the allegations made about Jones and one report of her findings regarding the allegations made by Jones.
  • Concerning the allegations made about Jones, Investigator Lauro determined that her investigation: did “not support that Mr. Jones pressured Mr. Beard to file a false or frivolous hostile work environment complaint against Captain Stallings in order to get [him] or others fired”; did “not support that Mr. Jones suggested or told Mr. Beard that in order to be promoted Mr. Beard needed to file a complaint against Captain Stallings or get Captain Stallings fired”; and failed to uncover “credible . . . consistently corroborating information to support that Mr. Jones referred to [a] female firefighter . . . in [a] derogatory manner.”
  • The allegations made by Jones are a different story. In this regard, Investigator Lauro offered the following “Summary of Allegations and Conclusions”:
  • Mr. Jones says a group of firefighters at Port Houston engage in “hazing” or “bullying” of “rookie” firefighters by saying or doing things that are meant to be belittling or humiliating to them, such as pranks, screaming or yelling, demeaning comments and behavior, etc. Neutral and credible witnesses corroborate Mr. Jones’ assertion that some firefighters at Port Houston do treat “rookie” firefighters in this manner, but one witness says the practice is becoming less common at Port Houston.
  • Mr. Jones identifies the group of individuals who allegedly treated him in this manner as Sr. Captain Kozlowski, Sr. Captain Hall, Captain Stallings, Mr. Jordan, and Mr. Justin Meador. Mr. Jones also says Battalion Chief Roberts knew about his mistreatment and failed to do anything to stop it. Mr. Jones says that he was subject to “hazing” or “harassing” behavior in 2016 and 2017 by these individuals and identifies two former firefighters who were trade to engage in specific alleged hazing activities.
  • Mr. Jones appears credible in his statements that he was subject to certain unwelcome comments and behavior relating to his identified physical and/or mental disabilities and/or past military service by Sr. Captain Kozlowski, Sr. Captain Hall, Captain Stallings, Mr. Jordan, and Mr. Justin Meador. There is also general and specific corroboration from witnesses that provide support for his complaints of unwelcome comments and behavior toward him and others and that Battalion Chief Roberts knew about some of the comments and behavior. Mr. Jones’ explanation for the delay in raising his concerns is credible and reasonable and there is no information that he has an improper motivation for raising the complaints. However, due to the lapse of time since 2016 and 2017, most of the information obtained and/or corroborated during the investigation relating to Mr. Jones’ complaints is more general in nature than specific, with some exceptions as generally described in this report.

Following release of the report, the Port opted to terminate Kozlowski, Hall, Stallings, and Roberts. Jordan and Meador were suspended for one shift. All six sued alleging the discipline was retaliation for their exercise of their First Amendment rights based on union-free-speech. As explained by US Magistrate Judge Andrew M. Edison:

  • A freedom-of-speech claim based on union-related speech requires Plaintiffs to show that: (1) they suffered an adverse employment action; (2) they spoke as a citizen on a matter of public concern; (3) their interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.
  • A freedom-of-association claim based on union association requires Plaintiffs to show that: (1) they suffered an adverse employment action; (2) their associational interest outweighed the government’s interest in efficiency; and (3) their protected activity was a substantial or motivating factor in the adverse employment action.
  • Both standards, however, require a causal relationship between the protected activity and the adverse employment action.
  • Defendants contend that Plaintiffs cannot establish a prima facie freedom-of-association or freedom-of-speech claim because Plaintiffs cannot show a causal relationship between their union-related activity and speech and the adverse employment actions (i.e., the terminations and suspensions).
  • Plaintiffs generally claim that they engaged in multiple union-related protected activities, which included advocating to Port Houston upper management and Human Resources: “(1) to address pay parity for Department members as union officers and members, (2) to express their concerns regarding morale and turnover in the Department, and (3) to modify the shift schedule to a 48/96 shift.”
  • I agree with Defendants.
  • In sum, Plaintiffs have not shown a fact issue exists as to the causal relationship between their advocacy for the 48/96 shift change and their terminations and suspensions.
  • Accordingly, Plaintiffs have failed to support an element of their First Amendment retaliation claim.

Here is a copy of the complaint:

UPDATE: May 26, 2022 – The Texas Court of Appeals has handed down a ruling in a related case, Buck v. Kozlowski, offering additional details into the Port Houston case. 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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